SZQDF v Minister for Immigration

[2017] FCCA 519

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQDF v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 519

Catchwords:
MIGRATION – Application to review decision of the Administrative Appeals Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2A), 36(2)(aa), 424A

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

(2003) 216 CLR 473; [2003] HCA 71

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR

323; [2001] HCA 30

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
Selvaduraiv Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
SZGIZ v Minister for Immigration and Border Protection (2013) 212 FCR 235; [2013] FCAFC 71
SZRUE v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 136 ALD 401; [2013] FCCA 893

Applicant: SZQDF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2354 of 2015

Judgment of: Judge Barnes

Hearing date: 7 March 2017

Delivered at: Sydney

Delivered on: 7 March 2017

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent, fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2354 of 2015

SZQDF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from judgment)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 7 August 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of China, arrived in Australia in September 2006 as the holder of a student visa.  He first applied for protection in August 2010.  That application was refused.  The decision was affirmed by the Refugee Review Tribunal.  He unsuccessfully sought judicial review of that decision (see SZQDF v Minister for Immigration and Citizenship & Anor [2011] FMCA 511).

3. Following the introduction of the complementary protection criterion into the Migration Act in March 2012 and the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Border Protection (2013) 212 FCR 235; [2013] FCAFC 71, the Applicant lodged a further application for a protection visa on 9 January 2014 as a person eligible to have his claims assessed against that criterion. That application was refused by a delegate of the First Respondent on 28 May 2014. The Applicant sought review by the Tribunal on 18 June 2014. It is that review that is the subject of these proceedings. On 6 July 2015 the Applicant was invited to and attended a Tribunal hearing on 3 August 2015.

4. In its reasons for decision the Tribunal acknowledged the effect of the introduction of the complementary protection criterion as considered in SZGIZ.  It proceeded on the basis that it could consider only the Applicant’s claim under the complementary protection criterion in circumstances where he had previously made an unsuccessful application based on the Refugees Convention criterion.  No issue has been raised and not is any apparent in that respect.

5. The Tribunal recorded that the Applicant explained that his father had secured a demolition contract with the government and had borrowed money to buy an excavator; that after local residents unsuccessfully sought fair compensation from the government they had turned against his father and destroyed the excavator; that when his father sought compensation from the government, they had denied liability; and that in an altercation with local officers his father had hit an officer and this forced his father and cousin to flee.  He claimed that local officers came looking for his father and arrested his mother, causing her mental problems and that the police then visited their house every few weeks.  The Applicant claimed he had difficulties at school because of this incident and that in August 2006 his cousin was beaten to death by unknown people.  He also claimed that residents had stormed the family home and taken their farmland. 

6. The Applicant also claimed that if he returned to China, he would claim his rights and as a consequence would be harmed and persecuted.  He claimed to fear revenge and for the safety of his life.  This claim was first made in the interview with the delegate.  The Tribunal recorded that in his interview with the delegate of 12 May 2014 and at the Tribunal hearing on 3 August 2015 the Applicant claimed that one of his brothers, who had been deported from Australia, had been detained by the Chinese authorities in April 2013 and remained in custody.  He claimed that his brother had been unable to obtain employment, returned to their home town to pursue the compensation owed to their father, but was arrested and detained.  The Applicant claimed he had heard about this from his uncle.  He claimed that if he returned to China and could not find employment, he would have to do the same and that he feared that he would be arrested by the authorities.  He also told the delegate that the mother of his murdered cousin had been detained because she tried to complain about her son’s death. 

7. The Tribunal referred to the evidence at the Tribunal hearing and the issues it raised with the Applicant about aspects of his claims. 

8. In its findings and reasons the Tribunal confined its consideration to the complementary protection criterion.  In considering the Applicant’s fears relating to the authorities’ pursuit of his father (who was said to still be “on the run”), the Tribunal accepted that his evidence relating to this claim had been substantially consistent throughout this and his previous protection visa application.  It observed that he had been relatively young at the time of the claimed incidents and accepted that he did not have direct knowledge and had relied on accounts given to him by his mother and other relatives.  It stated that although it had not taken evidence from the Applicant’s mother at the hearing (and I note that there is no indication of any request made by the Applicant in that respect) it had considered evidence she had provided in her own application for protection which had been considered in a separate review by the Tribunal, differently constituted.  The Tribunal acknowledged that the Applicant’s evidence was substantially consistent with his mother’s account.

9. I note, in passing, that such information is not such as to raise any concern about the operation of s.424A of the Migration Act 1958 (Cth), (the Act), given that it could not be described as information that was the reason or part of the reason for affirming the decision under review. Rather, it was favourable information.

10. On the basis of the consistent accounts given in various previous applications and the internal consistency of the Applicant’s evidence the Tribunal was prepared to accept that his father and cousin were involved in a demolition business, that his father had an altercation with authorities in the context of a dispute and that the authorities were looking for the Applicant’s father after this incident and may have taken the Applicant’s mother in for questioning.

11. However the Tribunal also accepted, on the Applicant’s own evidence, that apart from his mother, neither he, his brothers, his aunt, his uncle or any other family members had been arrested, detained or questioned about the whereabouts of his father since then.  It had regard to the fact that the Applicant and his mother had remained in China in the same family home for two years after this incident, until they travelled to Australia in 2006, and that the Applicant’s brother was there for another six months before he joined them.  It took into account the Applicant’s evidence that no one in his family now resided in the family home and that the last time anyone came looking for his father or family members was two or three years after he and his mother came to Australia in 2006. 

12. The Tribunal also had regard to the fact that the Applicant’s mother had travelled back to China in 2008 when her mother was ill.  The Tribunal did not accept the Applicant’s claim that his mother had told him that people apparently came looking for her during this visit but did not find her, as it was made for the first time at the Tribunal hearing and was not consistent with the Applicant’s previous evidence or consistent with or supported by the fact that his mother had been able to enter and depart from China without any difficulties. 

13. The Tribunal considered the Applicant’s new claim to the delegate and at the Tribunal hearing that his aunt had been detained two or three years earlier in relation to action she took in Beijing to seek compensation for the death of her son.  The Applicant had told the Tribunal this had nothing to do with him.  Hence, even accepting that it was possible that this claim was true, the Tribunal found that it was not related to the interest of the authorities in the Applicant’s father and had no effect on the probability of harm the Applicant may face on return to China. 

14. The Tribunal concluded that given that a period of 11 years had elapsed since the incident which led to the authorities’ interest in the Applicant’s father and the fact that there had been no interest shown by the authorities in respect of this matter to any family members residing in China in recent years, it was not satisfied there was a real risk the Applicant would suffer significant harm for this reason if removed from Australia to China.

15. The Tribunal then considered the Applicant’s claimed fear of arrest if he pursued compensation owed to his father.  In that context it considered the Applicant’s claim that in April 2013 one of his brothers had been arrested and detained after he returned to China when he went to their home area of Fuzhou to pursue the compensation owed to his father.  The Applicant claimed that if returned to China, he would also pursue compensation and feared the same would happen to him. 

16. The Tribunal had regard to the fact that the Applicant did not mention this claim in his application lodged in January 2014.  It did not accept the Applicant’s explanation at the hearing that he told his migration agent about it and did not know why it was not included.  It was of the view that if the claim was true, it was a significant claim in support of the application and did not accept that it would have been left out of the application.  The Tribunal considered it more likely that this claim had been fabricated by the Applicant at the time of the delegate’s interview to strengthen his claims.

17. The Tribunal also had regard to the fact that the Applicant’s evidence about this matter was vague and general.  It referred to the fact that the Applicant said he only knew what his uncle had told him and that this was not very much.  At the same time it also had regard to the fact that, on the Applicant’s account, his uncle had said that the brother had shouted at the officers and made a scene and was then arrested and detained.  In addition, the Tribunal had regard to the absence of any documentary support for the claim.  It also considered it implausible that the Applicant’s brother would have gone to Fuzhou to seek compensation for his father’s business a decade after the incident which caused the loss.  On the material before it and for the reasons given, the Tribunal did not accept that the Applicant’s brother was arrested and detained in April 2013.

18. Given that it did not accept the claim that the Applicant’s brother was arrested and detained for pursuing the compensation claim for his father, the Tribunal did not accept that the Applicant would pursue compensation if he was returned to China.  It also had regard to the fact that when asked how he would establish his right to pursue this matter, the Applicant had offered no plausible explanation at the Tribunal hearing, had confirmed he was a young child at the time of the incident which caused the father’s economic loss, that he had no ownership interest in his father’s business and that he had no documents to support a claim for compensation.  The Tribunal also considered the Applicant’s claims in this respect were internally inconsistent and contradictory.  On the one hand he claimed to fear harm from the authorities who were seeking his father relating to an incident arising from his father’s claim for compensation, while on the other hand he claimed he would actively seek such compensation himself if he returned and that he feared harm from the authorities for doing so.  The Tribunal found this claim implausible.  It did not accept that the Applicant would pursue compensation relating to his father’s business loss as claimed.  It was not satisfied there was a real risk he would suffer significant harm for this reason if removed to China. 

19. The Tribunal addressed the claim in the application about residents storming the family home and taking farmland in relation to the father’s demolition work.  However it had regard to the fact that when questioned at the hearing, the Applicant had stated that he had no idea about this and had confirmed that residents never came to his house and that his family did not have any farmland.  In light of this evidence, the Tribunal considered this claim to have been abandoned by the Applicant.

20. The Tribunal considered the Applicant’s claim at the hearing that he would be unable to find employment if returned to China and would suffer hardship for this reason. It found that unemployment and financial hardship did not fall within the defined meanings of significant harm in ss.36(2A) and 5(1) of the Act.

21. It also considered the Applicant’s claim that he would be unable to afford appropriate medical treatment for his mother and that she would not be able to access appropriate medical treatment. However it stated that it could only consider whether there were substantial grounds for believing that there was a real risk that the Applicant, rather than his mother, would suffer significant harm. It found that the claims relating to his mother’s inability to access appropriate medical treatment would not cause significant harm to the Applicant within the meaning of that term in the Migration Act.

22. For these reasons the Tribunal found that the Applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.

23. The Applicant sought judicial review by application filed on 27 August 2015.  There are three grounds in the application.  The Applicant did not file any further affidavit evidence or written submissions and had nothing to say today in relation to the grounds in the application. 

24. Before turning to those grounds, I note that in oral submissions the Applicant claimed that his original application was combined with his mother’s application, but that the department had separated the cases and that this was not fair because his mother was not mentally well and could not do many things mentally.

25. As submitted for the First Respondent, there is no evidence or suggestion of any prejudice to the Applicant if the protection visa applications, either on the first or the second occasion, were in some way split up and assessed individually.  In any event, as I pointed out to the Applicant, the visa application that is the subject of the present proceedings is the Applicant’s second application for a protection visa in 2014.  There is no evidence before the court that there was any separation of this application in some inappropriate manner.  The 2014 application in the Courtbook appears to be in the sole name of the Applicant.  His application to the Tribunal did not include his mother. 

26. I also note that the Tribunal recorded that the Applicant’s mother was present at the Tribunal hearing in a support capacity, but that she did not give evidence.  The response to hearing invitation form completed in this case indicated that the Applicant would attend the hearing, but that his representative would not do so.  It did not request the Tribunal to take evidence from any other witnesses.

27. There is no issue of any arguable jurisdictional error arising on the evidence before the court in relation to the manner in which the Tribunal proceeded to assess the Applicant’s individual review application.    

28. In particular, the Applicant did not seek to put evidence from his mother before the Tribunal. It is the case that in assessing the Applicant’s fears relating to the authorities’ pursuit of his father, the Tribunal found not only that the Applicant’s evidence relating to the events of 2004 and what occurred thereafter (including the claimed detention and then release of his mother) had been substantially consistent throughout both his protection visa applications, but also acknowledged that in this respect his evidence was substantially consistent with his mother’s account in the context of her own protection visa application. There is nothing to suggest that there was any disadvantage to the Applicant in the manner in which the Tribunal had regard to the mother’s favourable evidence in accepting this aspect of his claims and, as indicated, no s.424A issue arises.

29. While the Tribunal did not accept the Applicant’s evidence that his mother told him people came looking for her during her 2008 visit to China, in making this finding it had regard to the fact that this claim was first made at the Tribunal hearing of August 2015 and to the Applicant’s own evidence of the circumstances in which his mother returned to China and then came back to Australia in 2008, in particular, the fact that she had been able to enter and depart from China on that occasion without incident, was not a criminal, was not on any wanted list and had no problems with the authorities on entry and departure.  In these circumstances there is no evidence to suggest any unfairness arising from the separate consideration of the Applicant’s protection visa application and that of his mother. 

30. The Tribunal addressed the Applicant’s claims at the Tribunal hearing that he wanted to remain in Australia so his mother could get treatment she needed here, where her condition was improving.  It observed that he had not provided any information relating to his mother’s health.  It correctly found that what was in issue in the proceedings before it was whether there was a real risk of significant harm to the Applicant, not to the Applicant’s mother.  The issues raised by the Applicant in oral submissions are not such as to establish jurisdictional error. 

31. The first ground in the application is that the Tribunal “failed in taking into account of irrelevant considerations”.  The particulars to this ground state:

    At paragraph 42, the Tribunal considered the irrelevant information having regard to 11 years lapsed after the first incident and no interest shown by the authorities in respect of this matter to any family members residing in China in recent years.  The Tribunal failed to consider the significant harm could arise when the applicant pursues his basic rights and claims for his father against the authorities, especially when the applicant has no money or financial support upon his removal to China.

32. Paragraph 42 of its decision was part of the Tribunal consideration of the Applicant’s fears relating to the authorities’ pursuit of his father and was as follows:

    Given that a period of 11 years has lapsed since the incident which led to the authorities interest in the applicant’s father, and there has been no interest shown by the authorities in respect of this matter to any family members residing in China in recent years, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm for this reason if removed from Australia to China. 

1. There is no basis for alleging that these matters were irrelevant considerations, in the sense of considerations to which the Tribunal could not have regard (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 per McHugh, Gummow and Hayne JJ at [69]). It was reasonably open to the Tribunal to take into account the time that had elapsed since the incident, including the absence of any recent interest on the authorities’ part, in considering the risk of future harm to the Applicant.

2. The particulars to this ground also suggest that the Tribunal failed to consider that significant harm could arise when the Applicant claimed compensation for his father.  It is not clear how this aspect of the particulars is intended to relate to the ground of taking into account irrelevant considerations, insofar as it seems to be contended that the Tribunal should have considered this issue.

3. In any event, the Tribunal did consider the Applicant’s claim to fear arrest for pursuing compensation owed to his father.  However, for the reasons set out above, it did not accept that the Applicant would in fact pursue compensation relating to his father’s business loss as claimed.   Hence it was not satisfied that there was a real risk he would suffer significant harm for that reason.  It was reasonably open to the Tribunal to reach such conclusion on the material before it.  Insofar as the Applicant seeks merits review, that is not available in this court.  No jurisdictional error is apparent in that respect.  Ground 1 is not made out on any basis contended for by the Applicant. 

4. Ground 2 is that the Tribunal failed to consider what is described as “an issue that clearly arose on the information before the Tribunal”.  It is said that the Tribunal “failed to consider whether a denial of a right to claim [the Applicant’s] entitlement was persecutory”.  Reference is made to paragraph 25 of the Tribunal decision.  The Tribunal is said to have “suggested that the applicant should not seek compensation from the authorities for his father’s economic loss when the applicant feared of being arrested by the authorities”. 

5. Paragraph 25 of the Tribunal reasons is part of its record of what occurred at the Tribunal hearing, in particular the discussion of contradictions in the Applicant’s evidence in relation to his claim to fear arrest on the basis that he would pursue compensation owed to his father on return to China.  After referring to several issues in that respect, the Tribunal recorded, at paragraph 25:

   The Tribunal put to the applicant that it appeared contradictory for him to claim on the one hand that he feared the authorities because they may arrest him to find his father, and then on the other hand that he would actively seek compensation from the authorities for his father’s economic loss. The applicant made no comment about this. 

6. Ground 2 incorrectly characterised what was said by the Tribunal as recorded at paragraph 25 of its reasons for decision.  There is nothing in the material before the court to indicate that the Tribunal suggested that the Applicant “should not seek compensation” from the authorities for the father’s economic loss.  Rather, it put to him a contradiction in his evidence that was of concern to it. 

7. Insofar as it is intended to assert that the Tribunal failed to consider an “issue”, I take this to suggest that the Tribunal failed to consider an integer of the Applicant’s claims that arose clearly or squarely on the information before the Tribunal, in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263. It appears to be suggested that the Tribunal should have considered whether a denial of a right on the part of the Applicant to claim his entitlement was persecutory, presumably on the basis that there might be circumstances in which a claim might be put that an applicant might fail to pursue a right to claim an entitlement based on a fear of harm and in that way suffer significant harm (see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71), albeit that this case and the concept of persecution relates to the Refugees Convention criterion.

8. However there is no evidence that such a claim was made in this case and nothing in the material before the court to indicate that any such claim arose on the material before the Tribunal in such a manner that it was necessary for it to consider it in accordance with the principles considered in NABE (No. 2).  The Tribunal considered the Applicant’s claims as made, which were to the effect that if he returned he would pursue compensation and he feared the same would happen to him as had happened to his brother.  However, the Tribunal found that the Applicant would not pursue compensation as claimed.  It did not do so on the basis that he would refrain from doing so in order to avoid harm.  Rather, it did not accept that the Applicant’s brother had been arrested and detained for pursuing such claim and found the Applicant’s claim in this respect to be implausible for reasons it gave.  The Applicant has not correctly characterised the Tribunal’s decision.  The circumstances were not such that it was necessary for it to consider whether a denial of a right to claim an entitlement would constitute significant harm. 

9. This ground is not made out. 

10. Ground 3 is that the Tribunal erred in arriving at a conclusion “without supported [sic] evidence”.  According to the particulars, at paragraph 40 the Tribunal made a finding that the Applicant’s mother “is of no interest to the authorities simply because she was able to enter and depart from China without difficulties.  In this particular, the Tribunal did not provide the evidence that she has done so without difficulties.”

11. First, insofar as there is some suggestion that the Tribunal must have supporting evidence in order to arrive at a conclusion in relation to an aspect of the Applicant’s claims, it is well established that the Tribunal is not required to have rebutting evidence before it fails to accept a claim of the Applicant (see Selvaduraiv Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [65]).

12. It appears that the Applicant is concerned about the Tribunal finding at paragraph 40.  In the context of considering the Applicant’s claimed fears relating to the authorities’ pursuit of his father, the Tribunal stated:

    40.  The Tribunal also accepts, on the applicant’s own evidence, that apart from his mother, neither he, his brothers, his aunt, or his uncle or any other family members have been arrested, detained or questioned about the whereabouts of his father since then.  The Tribunal notes that the applicant and his mother remained in China, in the same home, for two years after this incident until 2006 when they travelled to Australia.  The applicant’s brother [Y] was there for another six months before he joined them in Australia.  On the applicant’s own evidence, no one in the applicant’s family resides in the house they lived in at that time in [town].  He told the Tribunal the last time anyone came by looking for the applicant’s father or his family members was two or three years after the applicant and his mother came to Australia in 2006.  The applicant’s mother travelled back to China in 2008 when her mother was ill.  The applicant told the Tribunal she told him that people apparently came looking for her during this visit, but did not find her.  The Tribunal does not accept this claim.  It was made for the first time at the hearing before this Tribunal and is not consistent with his evidence provided previously.  The Tribunal also considers that this claim is not consistent with, or supported by, the fact that she was able to enter and depart from China without any difficulties. 

13. Issue is taken with the Tribunal’s reliance on the Applicant’s evidence that his mother was able to enter and depart from China without any difficulties.  It is apparent when regard is hard to the Tribunal reasons as a whole, that the evidence in that respect was the Applicant’s evidence that his mother had been able to enter and depart China in 2008 without incident.  As the Tribunal recorded in the course of describing the Tribunal hearing, his evidence was that his mother was not a criminal and was not on any wanted lists so she had no problems with the authorities upon entry and departure.  In other words, there was an evidentiary basis for the Tribunal’s acceptance that the Applicant’s mother was able to enter and depart from China without difficulties. 

14. The Tribunal did not make any specific finding as to whether or not the Applicant’s mother was “of interest” to the authorities.  It appears to have accepted, on the Applicant’s own evidence, that his mother was taken in for questioning when the authorities came looking for his father after the 2004 incident.  However it was considering the Applicant’s claims to fear that he would suffer significant harm.  In that context it had regard to the fact that, on the Applicant’s evidence, apart from his mother, neither he nor any other family members had been arrested, detained or questioned about the whereabouts of his father since the earlier events and that his mother had travelled back to China in 2008 and was able to enter and depart from China without difficulties. 

15. Insofar as ground 3 makes a “no evidence” contention, as pointed out by the First Respondent, this is a high threshold (see SZRUE v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 136 ALD 401; [2013] FCCA 893 at [24]). In this case there was clearly evidence before the Tribunal to support the findings that it made in relation to the Applicant’s claim, in particular the Applicant’s oral evidence at the Tribunal hearing. The Tribunal’s findings in this respect were reasonably open to it on the material before it for the reasons which it gave. This ground is not made out.

16. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  21 March 2017