FZD18 v Minister for Immigration
[2020] FCCA 1401
•3 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FZD18 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1401 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the applicants Protection (Class XA) (Subclass 866) visas – Tribunal informed applicants it was unable to make favourable decision on the material and invited them to a hearing before it – applicants indicated they did not wish to attend the scheduled hearing before the Tribunal and requested that it make its decision on the available materials – no jurisdictional error identified by the applicants – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 476 Migration Regulations 1994 (Cth) |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| First Applicant: | FZD18 |
| Second Applicant: | FZE18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3202 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 3 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2020 |
REPRESENTATION
| The Applicants appeared in person. |
| Counsel for the First Respondent: | Mr L. Leerdam |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 16 November 2018 is dismissed.
The Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $4,000.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 30 June 2020 to file any Notice of appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3202 of 2018
| FZD18 |
First Applicant
| FZE18 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicants in this proceeding are as follows:
a)the First Applicant is a female citizen of China aged 30 years; and
b)the Second Applicant is a male citizen of China aged 31 years and is the husband of the First Applicant.
(collectively the Applicants)
By Application filed in this Court on 16 November 2018 they seek to quash and impliedly have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 October 2018 which affirmed the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), dated 22 September 2015 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)).
Background
The Applicants arrived in Australia on 24 June 2014 on Visitor (Class FA) (Subclass 600) visas and applied for the Protection visas on 22 September 2014 through their migration agent. The First Applicant was the primary applicant and made claims for protection, with the Second Applicant being a secondary applicant as a family member of the First Applicant and dependent on the claims of the First Applicant.
Claims for Protection
In short, the First Applicant claimed that:
a)she took part in Yiguando activities, which religion was considered by the Chinese Government to be a cult, and was forced to write a confession after being detained for two days, tortured mentally, deprived of sleep and starved; and
b)her parents were visited by the police in China regarding the First Applicant and her affairs one month after the Applicants had arrived in Australia and the Applicants were warned not to return to China by the parents as it would be dangerous to do so.
In response to questions 44 to 49 of her Protection visa application form, the First Applicant stated as follows:
44. Why did you leave that country?
I came from the countryside of Anhui Province. There was an altar in our house and all of my family members were disciples of I-Kuan-Tao. A long time ago, my grandmother was discovered practicing Tao at home and she was finally arrested by the village officials. That happened when I was in my primary school and it had left an indelible imprint on my memory. I was wondering what wrong it was to practice Tao. In the opinion of a child, Tao practice was a virtue and all the Tao-pursuers were nice folks. I found our fellow practitioners of Tao were all considerate of and helpful to each other. We were always kind and sympathetic to all people and never bothered about our own gains or losses. We were pursuing the personal purity, internal and external, but our pursuit was regarded as a cult activity by the government.
45. Have you experienced harm in that country?
Under the relentless repression by the government, our altar had to go underground. Every time we practiced Tao, we would always run the risk of being reported by someone. In 2008, when my grandma led her fellow practitioners in rituals, their activities were discovered by the village guards and all their rituals things were confiscated. Shortly after my grandma was arrested, she got ill and soon died. My parents went to visit the higher authorities for airing their grievances but to no avail. What was worse, they themselves were arrested and I was also cautioned by the police.
In 2003, when I worked as a waitress in a hotel, I met with a guest from Taiwan, who was an I-Kuan-Tao disciple and that time she came to the Mainland of China to preach the Tao. I read some of the books she had brought with her and she gave me an I-Kuan-Tao pamphlet. Later on, I attended her sermon. Her sermon lasted for three days only to be reported by someone to the police. On getting wind the police were coming to make arrests, we hastened to disperse. That day the police failed to catch the preacher from Taiwan but they managed to arrest some of our fellow practitioners. The police began to question them and then me. Finally the policemen searched my house and found a lot of Tao books in it. So I was brought to the police station for further enquiries.
46. What do you fear may happen to you if you back to that country?
The police tried to track the Taiwanese preacher to her hiding place through me, but I insisted on my ignorance. Finding out I had talked with her over the phone soon after she fled the hotel, the police clung to this clue and accused me of withholding the information from them and covering up for the suspect. As a result, I was summoned for questioning and was then kept in custody for two days. They tried to wring a confession from me by torturing me mentally. I got threatened and intimidated and suffered from starvation and deprival of sleep. At last, I had to give in and wrote a statement, promising to hand out all the Tao books and provide the names and telephone numbers of some of my fellow practitioners. However, I hadn’t disclosed any vital information to the police about the other altars.
Though I was released, my family was placed under closest surveillance by the community administration. As a result, I could not go on with my Tao practice any longer. Because of the harassment from the police, my employer fired me. Having lost my job, I found it more and more difficult for me to find a new one again, as no employer would like to hire a person with a police record. My husband [omitted] was also summoned by the police for questioning. They threatened him if I should take part in the I-Kuan-Tao activities again, I would be arrested and sentenced to a term in prison and he, my husband, would also be held jointly liable.
47. Who do you think may harm/mistreat you if you go back?
After consultation with my husband, we both agreed we would have no future if we should stay in China. So we decided to flee this place that lacked basic freedom. In February, 2014, we set about pulling a few strings by bribing so as to go through our immigration formalities. After several months’ waiting, the agent informed us that all the formalities to leave the country had been ready. We were requested to act as arranged previously, lest something unexpected should happen.
48. Why do you think this will happen to you if you go back?
Blessed by the Mingming Shangdi and His followers, I and my husband arrived in Australia safe and sound on June 24th, 2014. However, only a month later, we got news from our hometown that my parents were arraigned by the police, because they had told a fellow practitioner of them the information about us and the other altars. Consequently, the police rushed to our house and questioned my parents about our affairs in particular. My parents later warned us never to go back to China, as it would be very dangerous.
49. Do you think the authorities of that country can and will protect you if you go back?
We appreciate the freedom we’re enjoying now in Australia. We have just found an altar set up by a Taiwanese and we are taking part in the Tao practice there. We’d like to stay here in Australia for our freedom. This country is our paradise and Maitreya’s land. We have long been expecting that China can legalize the practice of I-Kuan-Tao, as here in Australia. Yet the harsh reality can only make us disappointed and heart-broken. Now our only hope lies in the prospect of being granted protection by the Australian Government. We're looking forward to the right to propagate our faith of I-Kuan-Tao.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visas in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The First Applicant attended an interview with the Delegate on 14 September 2015 and the claims made were summarised by the Delegate in her Decision Record, as follows:
·The applicant was cautioned by the authorities on 18 December 2008.
·She was arrested again in 2013 and detained for two days. The authorities sought information from her regarding her relationship with her friend the I-Kuan-Tao preacher. They obtained her phone records to determine the two were in contact.
·Following her release the applicant was harassed by the police with 2-3 visits to her work weekly over a one month period. The harassment ceased when she was fired from her job in 2013.
·The applicant could not find a job in China through 2013 up until the time of her departure for Australia.
·The applicant explained that she seldom eats meat, went on to explain that she avoids the meat component of a meal where meat is present, and later stated that she does not eat meat at all.
·The applicant stated she practises I-Kuan-Tao because it makes her feel peaceful and can allow her to do good things.
·The applicant advised that she came to understand that I-Kuan-Tao is permitted in Australia following a conversation with her neighbour in Australia.
·The applicant stated that she did not cease I-Kuan-Tao practise as stated in her written claims.
·The applicant advised that while country information indicates there have been no arrests of I-Kuan-Tao practitioners in China since 1994, people from her village are poor and are targeted by the local authorities.
·She paid a 120,000 RMB bribe to exit China.
·The applicant had no savings at the time of departure, borrowing ½ the money for the bribe from her parents, and the other ½ from the sale of her property.
·She had no knowledge of the content and nature of the support documents contained within the Tourist visa application which facilitated her arrival in Australia.
·The staple marks visible on page 9-10 of her passport are a result of the Australia customs officers removing the label upon her arrival in Australia.
In the result, the Delegate refused to grant Protection visas to the Applicants and rejected the totality of their claims on the basis of credibility issues and inconsistencies. In particular, on the issue of the First Applicant’s credibility, the Delegate found that she did not accept:
a)the First Applicant’s claims to be a genuine Yiguando practitioner;
b)the First Applicant’s claims to be of adverse interest to the Chinese authorities; or
c)the First Applicant’s claim that she would be of adverse interest to the Chinese authorities should she return to China.
The Delegate was not satisfied that the First Applicant was a person to whom Australia owed protection obligations under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) and refused to grant a Protection visa to her, and consequently also refused to grant a Protection visa to the Second Applicant.
Decision of Tribunal
The Applicants lodged an application for merits review with the Tribunal through their migration agent on 27 October 2015 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
By letter dated 18 October 2018 the Tribunal invited the Applicants to a hearing scheduled for 9 November 2018. That letter specifically advised the Applicants that the Tribunal was unable to make a favourable decision in their favour on the material that was before the Tribunal at that time.
On 25 October 2018 the Applicants’ migration agent advised that he was no longer acting for them. By email also dated 25 October 2018 the First Applicant responded as follows in declining to attend the hearing before the Tribunal:
My name is [FZD18], I am writing to you about your email to me on 09 November 2018 for hearing. I would like to inform you that I have decided not to attend the hearing as I do feel very nervous. I want to tell you that you can make your final decision on my existing paper information.
By email dated 26 October 2018 the Tribunal enquired if the Second Applicant would be attending the scheduled hearing, and received an email in response dated 26 October 2018 from the First Applicant advising that the Second Applicat would not be attending the scheduled hearing and agreeing for the Tribunal “to make final decision on the available materials”.
I note that, as the Applicants had consented to the Tribunal conducting the merits review without them appearing before it, neither of the Applicants were entitled to appear before it by force of s.425(3) of the Act. As Rares J said in SZIMG v Minister for Immigrationand Citizenship (2008) 167 FCR 362 at 369 [21]:
[21] Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it had been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review had been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant’s favour on the material before it and thus wished to invite him or her to a hearing so as to persuade it to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under s 425(2)(b) and (3) to determine the application for review on the basis of the consent: SZFML 154 FCR 572 at [64]. Their Honours distinguished that mode of the tribunal proceeding from its acting on the basis of the power to decide the review under s 426A(1) following the non-appearance of an applicant. The applicant for review by rejecting an invitation to appear under s 425(1), can waive his or her right to a hearing. That has the effect of an applicant for review consenting to the tribunal deciding the matter without him or her appearing before it.
In its Decision Record the Tribunal recorded the First Applicant’s claims for protection and the background to the review application from [7] – [13], and at [14] recorded the evidence before it for consideration.
At [19] of its Decision Record the Tribunal noted that the material before it was now more than three years old and that, as noted in the Decision Record of the Delegate, there were numerous gaps and anomalies in the First Applicant’s evidence, including in her oral evidence given at the interview with the Delegate, that had led the Delegate to disbelieve her claims.
At [20] of its Decision Record the Tribunal pointed out that as a result of the failure of the Applicants to appear at the scheduled hearing it had been deprived of the “opportunity for the Tribunal to explore various matters that are unclear or unresolved, and to obtain further, updated information and details”. The Tribunal then set out five topics it would have wished to explore further with the Applicants, and more particularly the First Applicant, if they had appeared at the Tribunal hearing. At [22] of its Decision Record the Tribunal stated:
[22] The Tribunal is also unable to be satisfied that the first-named applicant genuinely fears returning to China, for any reason linked with her protection claims, or any reason at all.
The Tribunal then concluded at [24] of its Decision Record:
[24] In sum, the Tribunal is unable to be satisfied that either applicant has suffered past harm (including detention, physical assaults or ‘torture’, threats or psychological harm) that amounts to serious harm for reason of their religion, or any other Convention ground. Similarly, the Tribunal is unable to be satisfied that either has suffered any harm that amounts to ‘significant harm’. The Tribunal is also unable to be satisfied that either applicant genuinely fears serious harm amounting to persecution, or significant harm, arising from any of these circumstances, if they return to China.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Protection visas to the Applicants. There was a degree of unavoidability about that affirmation because the simple fact of the matter is that the Tribunal’s affirmation of the Delegate’s decision was almost inevitable in a situation where the Applicants did not attend the Tribunal hearing and their claims for protection were fact sensitive. As the Full Court of the Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] per French, Emmett and Dowsett JJ, said:
[5] In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
To similar effect, Nicholas J in SZRRW v Minister for Immigration and Citizenship [2013] FCA 332 said at [7]:
[7] In circumstances where there was very little evidence before the Tribunal and the appellant failed to appear at the hearing, the Tribunal was, perhaps unsurprisingly, not satisfied that he had a well-founded fear of persecution if he were to return to China now or in the foreseeable future: see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [5]. The Tribunal found that the evidence before it did not suggest, and the Tribunal was not satisfied, that the appellant would be subjected to mistreatment amounting to persecution because of his past actions in exposing corruption. The Tribunal was satisfied that the appellant was not a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951.
Grounds of Attack on Decision of Tribunal in this Court
The Applicants relied upon the following verbatim Grounds:
1. I don’t think DIBP and AAT’s decision are fair and reasonable and they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of I-Kuan Tao in China and Australia.
2. AAT did not consider my statement and comments and judge my faith simply by knowledge, instead of real fact.
3. AAT failed to prudently consider my risk for persecution if I return to origin.
4. AAT failed to consider my statements and evidence provided in supporting my claim as a whole.
5. I am a Chinese citizen and believe in I-Kuan Tao. I have been persecuted and threatened by Chinese authority due to my involvement with I-Kuan Tao, and have a fear of return to origin.
6. I have been actively involved in I-Kuan Tao actives. My action and performance has been evidenced by my I-Kuan Tao fellows.
7. AAT unreasonable suspect of the truthfulness of my claims just because of the absence of evidence.
Consideration
Ground 1
Insofar as this Ground attacks the decision of the Delegate, this Court has no jurisdiction to review that decision pursuant to s.476(2)(a) of the Act because the Delegate’s decision was a primary decision. Otherwise, this Ground attacks the Tribunal’s decision on a merits review basis, which is not available in this Court.
Further, on the materials available to it, the Decision Record of the Tribunal evidences a meaningful consideration of the Applicants’ claims for protection and does not evidence irrationality, illogicality or legal unreasonableness.
Ground 1 is not made out.
Grounds 2 and 4
There is no basis for the complaint in these Grounds that the Tribunal failed to consider the statements in evidence, such as they were. The evidence considered by the Tribunal was recorded at [14] of its Decision Record.
The Decision Record evidences a meaningful consideration of that body of evidence and the claims for protection.
These Grounds fail to establish jurisdictional error.
Grounds 3, 5, 6 and 7
These Grounds simply argue with the decision of the Tribunal, which I have held to have been reasonably legally open to it on the evidence and in the circumstances, and all of them fail to establish jurisdictional error.
Conclusion
The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 2 June 2020
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