FTZ18 v Minister for Immigration
[2019] FCCA 3420
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FTZ18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3420 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China – applicant not believed – grounds of review expressed generally in narrative form – applicant declining to make submissions in support of his application – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 424A |
| Cases cited: BZD17 v Minister for Immigration (2018) 161 ALD 441 |
| Applicant: | FTZ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3082 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3082 of 2018
| FTZ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 October 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decisions of the delegate and the Tribunal on them are conveniently set out in the Minister’s outline of submissions filed on 19 November 2019.
The applicant is a male citizen of China who arrived in Australia on 31 July 2014 as the holder of a student (subclass 573) visa.[1]
[1] Court Book (CB) 19, 37
On 14 September 2015, the applicant lodged a protection visa application[2] and set out his claims to fear returning to China in an accompanying written statement.[3]
[2] CB 1-42
[3] CB 38-42
The applicant claimed that he and his family were farmers and that he left China because he organised villagers to petition the village committee against the impact of pollution caused by a local chemical factory and he was persecuted as a result. In 2012, the village committee decided to build a chemical factory in the applicant’s village. The pollutants from the chemical factory harmed the applicant’s crops and he went to the village committee to discuss the issue but they did not do anything.[4]
[4] CB 38
In May 2013, the applicant organised “some people who were influenced seriously” to discuss the problem with Gaocheng Environmental Protection Bureau but nothing happened. The applicant petitioned the village committee and the Gaocheng Environmental Protection Bureau. The village officer went to the applicant’s home and threatened him. After the petition, the applicant was monitored and was not allowed to go to any other places to work. The applicant claimed that if he returns to China, the village officer “will not let me go”. Since arriving in Australia, the village officer had allegedly sent people to the applicant’s home who enquired about his whereabouts and threatened his wife.[5]
[5] CB 39-41
The delegate
On 6 October 2016, the applicant was invited to attend an interview with the delegate scheduled for 19 October 2016,[6] which he attended.[7] On 10 November 2016, the delegate made a decision refusing to grant the applicant a protection visa.[8] The delegate was not satisfied that the applicant’s claims were credible or that he left China because he feared persecution.
[6] CB 58-71
[7] CB 77
[8] CB 72-82
The Tribunal
On 25 April 2017, the applicant applied to the Tribunal to review the delegate’s decision.[9]
[9] CB 83-84
On 29 May 2017, a previously-constituted Tribunal found it did not have jurisdiction to review the delegate’s decision because the application was not made within the prescribed period.[10]
[10] CB 91-95
On 17 July 2018, the Federal Circuit Court made orders by consent remitting the matter to the Tribunal for reconsideration on the basis that the notification of the delegate’s decision was invalid as it was not dispatched to the last address for service or residential address provided to the Minister by the applicant.[11]
[11] CB 96-97
On 29 August 2018, the applicant was invited to attend a hearing before the present Tribunal scheduled for 4 October 2018.[12] The applicant accepted the invitation[13] and attended the hearing.[14]
[12] CB 104-109
[13] CB 110-113
[14] CB 114-116
By a letter dated 9 October 2018, the Tribunal invited the applicant to comment on information purportedly under s.424A of the Migration Act 1958 (Cth) (Migration Act).[15] The particulars of the information comprised evidence given by the applicant at the interview before the delegate, which was inconsistent with his evidence at the Tribunal hearing.[16] The applicant responded to the invitation on 11 October 2018.[17]
[15] CB 120-122
[16] CB 122
[17] CB 123
On 19 October 2018, the Tribunal made a decision affirming the delegate’s decision.[18] In particular, the Tribunal found:
a)that the applicant’s evidence at the delegate’s interview about when the town started building the chemical plant, whether his family were living with him before he departed China and when he decided to come to Australia was inconsistent with his evidence at the Tribunal hearing. Further, the applicant’s evidence at the hearing was that the village official broke his teeth, but this was not raised previously. At the hearing, the applicant claimed his family left when his teeth were knocked out, but according to his evidence, his family left in 2013 and his teeth were knocked out in 2014. The Tribunal found the applicant’s answers “continued to change with each telling”;[19]
b)that the applicant was unable to explain how the factory was able to produce chemicals whilst it was still being built. At the hearing, he claimed the crops on his lands were affected around 2013 to 2014 by the chemicals the factory produced, but the factory was only completed in 2014;[20]
c)did not accept that a person’s evidence about things such as whether their family had been living with them for the years up until they departed China could be affected by nerves and confusion. The Tribunal found the applicant was not credible and its overall impression was that the applicant was making up his evidence as he went along;[21]
d)found the applicant had not given much thought to things such as how a factory could produce chemicals or kill plants before it was even built or how his family could leave before the village official had broken his teeth, even though they allegedly left because he had his teeth broken.[22]
[18] CB 124-137
[19] CB 133, [26]
[20] CB 133, [27]
[21] CB 133, [28]
[22] CB 133, [28]
On the basis of these significant deficiencies and inconsistencies, the Tribunal did not accept that: a chemical factory was built near the applicant’s land; he organised or petitioned or complained to his village committee or government agencies; his teeth were broken; or his family or crops were affected. The Tribunal also did not accept that: the government threatened the applicant or his family; the applicant was monitored and allowed to go to his place of work; he fled to Australia; or village leaders demanded money after he arrived in Australia.[23]
[23] CB 133, [29]
The Tribunal did not accept there was a real chance that the applicant would face serious harm if he returned to China[24] and found he did not meet s.36(2)(a) of the Migration Act.[25]
[24] CB 133, [30]
[25] CB 133, [31]
The Tribunal relied on its previous findings that the applicant was not credible and had not suffered any past harm, and found there was no real risk that he would suffer any harm, let alone significant harm as defined in s.36(2A) and s.5(1). The Tribunal was not satisfied that the applicant met s.36(2)(aa) of the Migration Act.[26]
[26] CB 133, [33].
The present proceedings
These proceedings began with a show cause application filed on 5 November 2018. There are four numbered paragraphs under the heading “Grounds of Application”:
1.The decision from Tribunal didn't accept my claim because I'm not the English background person and I don't understand the English either, the other thing is that I didn't check my email frequently that I didn't realize my claims refused again. I won't miss any email from your organization anymore and I will check my email as more often as I can.
2.I was the one who organised villages to petition and persecuted at the end, finally causing me fleeing China to Australia. It is the fact that I was persecuted by the Chinese Government and I think my basic human rights has been deprived at same time. It is because the Chinese government occurring bureaucrats shield one another and if I continued to do petition, my family would not receive any government benefit and welfare. Finally, If I return back China, my life will be threatened by the Chinese Government due to violence performed by the officials in my regional Chinese government. Therefore I don't think I can't go back to China.
3.From the last performance in the Tribunal, my tensed condition caused the mismatched information that I provided. Also my education background is just middle school level contributing my panic performance when I was facing with judges and officer last time. It is because my bad memories and poor condition, my recalled information for previous experience wasn't matched with the statement that I had provided, but all of those information is the truly fact and there is no situation in hiding the truth. I hope my situation can be considered fully and seriously.
4.I promise I can receive the email from your institution instantly and I won't miss any information either. So I hope FCC can give me another chance and reconsider my application at AAT.
(errors in original)
As was noted in the Minister’s submissions, the application is, on its face, defective in that the applicant seeks an order in the nature of certiorari, but does not seek a writ of mandamus. I pointed out to the applicant that his show cause application was defective and he confirmed that he was seeking relief in the nature of a writ of mandamus as well as certiorari. With that in mind, I obtained his permission to check the box seeking mandamus in order to rectify the error.
I have before me as evidence the applicant’s affidavit filed with his application and the court book filed on 15 January 2019. Only the Minister filed written submissions in advance of today’s hearing in accordance with procedural orders made by registrar.
I sought oral submissions this morning from the applicant. He declined to make any. I explained to him that, in the absence of any submissions, the likelihood of his application succeeding in this Court was necessarily significantly reduced. I invited him to tell me of anything about the Tribunal’s decision, or the process that was followed by the Tribunal, which bothered him. He told me there was nothing. In these circumstances, it is very difficult to clothe the grounds in the application with anything meaningful. As was pointed out by counsel for the Minister, to the extent that the applicant asserts a lack of interpretation at the Tribunal hearing, that is answered by the simple facts arising from CB 83, 105, 114 and 131.
To the extent that the applicant complains of being tense or anxious at the Tribunal hearing, that was dealt with by the Tribunal at CB133. I also note that, although probably not strictly required, the Tribunal wrote to the applicant seeking his comment on what the Tribunal saw as adverse information purportedly under s.424A of the Migration Act[27] and received a response.[28] The applicant is, in my view, unable to demonstrate any jurisdictional error by the Tribunal.
[27] CB 121
[28] CB 123
The Minister’s submissions deal with the grounds advanced. I agree with those submissions.
Ground 1
Ground 1 contends the Tribunal failed to accept the applicant’s claim because he is not an “English background person” and does not understand English. The ground states that the applicant did not check his emails and will not miss any email again. The relevance of the applicant’s English language abilities is not apparent. The applicant was assisted by a Mandarin interpreter at the Tribunal hearing and no complaint is made about the standard of interpretation at the hearing. Nor is there any evidence before this Court that would otherwise suggest any deficiency in that interpretation. It is also not apparent what email the applicant allegedly missed or how this identifies even an arguable case of jurisdictional error in the Tribunal’s decision and approach.
Ground 2
Ground 2 simply restates the applicant’s factual claims for protection and does not identify any error, let alone a jurisdictional error, in the Tribunal’s decision.
Ground 3
Ground 3 contends that the applicant’s “tensed condition caused the mismatched information” and his education background contributed to his “panic performance” before the Tribunal. He states he had a poor memory, which resulted in inconsistencies in his evidence, and requests that his situation be “considered fully and seriously”.
The Tribunal[29] expressly considered the applicant’s claim that he felt nervous and confused during the delegate’s interview but did not accept that his evidence about whether his family had been living with them for the year up until they departed China could be affected by nerves and confusion. That is an assessment for the Tribunal alone to make, and there is nothing to suggest that the conclusion it did reach on this issue was irrational or illogical. Further, the applicant made no claim before the delegate or Tribunal that his education background affected his ability to give evidence and participate at a hearing. Properly understood, ground three invites impermissible merits review.[30]
[29] at CB 133, [28]
[30] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Ground 4
Ground 4 states:
I promise I can receive the email from your institution instantly and I won’t miss any information either. So I hope FCC can give me another chance and reconsider my application at AAT.
This is not a proper ground of review and does not grapple with the Tribunal’s decision or approach in any meaningful way. The contentions here appear to be misdirected to the decision of the previously-constituted Tribunal and have no relevant application to the present Tribunal’s decision and approach.
Consideration of the Tribunal’s credibility findings
Findings of credit are generally matters for the administrative decision maker, although this does not mean that they are beyond scrutiny on judicial review. They may be challenged as amounting to jurisdictional error where they fall within the concept of legal unreasonableness, or amount to reaching a finding without a logical, rational or probative basis, or amount to a failure to give a proper, genuine and realistic consideration to the issues and material before the decision-maker.[31] A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review.[32] As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions.”[33] Thus, “even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality.”[34]
[31] BZD17 v Minister for Immigration (2018) 161 ALD 441 at [32]-[35], [37] (Perram, Perry and O’Callaghan JJ)
[32] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [96]; SZVAP v Minister for Immigration [2015] FCA 1089 at [14]-[15]
[33] Minister for Immigration v SZRKT (2013) 212 FCR 99 at [148]; SZMDS at [135]; CQG15 v Minister for Immigration (2016) 253 FCR 496 at [60]
[34] CQG15 at [61]
It is not apparent to me that the decision of the present Tribunal reflects any such errors. The factual premise for the applicant’s claims is that he feared harm if he returned to China from the village officer because he complained about a chemical factory. The Tribunal considered the applicant’s evidence in this regard but identified various inconsistencies and deficiencies. It concluded that it was not satisfied that any of the applicant’s factual claims for protection were credible.
As “information” for s.424A purposes does not include the existence of doubts, inconsistencies or the absence of evidence,[35] and must contain “in its terms” a rejection, denial or undermining of an applicant’s claims to be a person to whom Australia owed protection obligations,[36] it is doubtful that the information put to the applicant as outlined above at [11] even enlivened the Tribunal’s s.424A obligations. Even if such information was not required to be put to the applicant for comment, no error is revealed in the Tribunal’s cautious approach.[37] Indeed, the letter probably served a useful purpose in ensuring the applicant understood a dispositive issue in the review. To the extent that these inconsistencies were “information” for the purposes of s.424A, than the Tribunal complied with these obligations by way of its letter dated 9 October 2018.[38]
[35] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]
[36] SZBYR at [17]
[37] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]; SZMCD v Minister for Immigration (2009) 174 FCR 415
[38] CB 121-122
I conclude that the decision of the Tribunal in this case is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs significantly below the scale amount. The applicant inquired about arrangements for payment of costs, but did not oppose a costs order in principle.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 November 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Statutory Construction
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