SZQSA v Minister for Immigration

[2016] FCCA 3057

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQSA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3057

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Chinese citizen – whether error concerning applicant’s capacity to relocate within China – whether error in consideration of country information – whether error in credibility findings – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 48A, 476

Cases cited:

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244

Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41

Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Multicultural Affairsv Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609

SZQSA v Minister for Immigration & Anor [2012] FMCA 328
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant: SZQSA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 566 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 24 November 2016

Date of Last Submission: 24 November 2016

Delivered at: Perth

Delivered on: 2 December 2016

REPRESENTATION

For the Applicant: In person (with the assistance of an interpreter)

Counsel for the First Respondent: Ms E Tattersall

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS (as made on 24 November 2016)

1. The application be dismissed.

2. The Reasons for Judgment be published electronically from Chambers at a later date.

3. The applicant pay the first respondent’s costs in the sum of $5800 by 24 December 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 566 of 2015

SZQSA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and orders made

1. On 24 November 2016 the Court made the following orders at hearing:

   1. The application be dismissed.

   2. The reasons for judgment be published electronically from Chambers at a later date.

   3. The applicant pay the first respondent’s costs in the sum of $5800 by 24 December 2016.

2. The Court’s Reasons for Judgment (see order 2 above) appear below.

Background

1. On 4 December 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”). A copy of the Tribunal Decision dated 3 November 2015 is at Court Book (“CB”) 176-199.

2. Relevantly, the background to the Judicial Review Application is otherwise as follows:

   a)the applicant, a citizen of the People’s Republic of China (“China”) arrived in Australia on 6 December 2010 as the holder of an Electronic Travel Authority (Visitor) visa: CB 15. The passport that the applicant used to enter Australia was fraudulent: CB 23;

   b)on 19 January 2011, the applicant lodged an application for a Protection Visa: CB 1-27 (“2011 Protection Visa Application”);

   c)in a statement provided in support of the 2011 Protection Visa Application: CB 11-12, the applicant claimed that she was a Christian and that:

   i)she and brothers and sisters from her local church liked to gather together to discuss church activities;

   ii)on 15 August 2009, “sisters and brothers” came to her house to celebrate the Moon Festival, drink tea and socialise. Armed police officers entered the house stating that it was an illegal gathering. The applicant and the attendees were beaten and taken to a Detention Centre;

   iii)the attendees were released one by one but the applicant was held in detention for “half a month” and tortured; and

   iv)after her release police attended her home and threatened her to make her leave her hometown;

   d)the 2011 Protection Visa Application was refused by the Delegate on 24 February 2011: CB 28-44, and the Delegate’s Decision was affirmed by the then Refugee Review Tribunal on 20 September 2011: CB 49-57;

   e)the applicant sought judicial review of the Tribunal Decision: CB 58-62, and that judicial review application was dismissed by the Federal Magistrates Court on 17 April 2012: CB 63; SZQSA v Minister for Immigration & Anor [2012] FMCA 328 (“SZQSA-FMC”);

   f)on 22 April 2014, the applicant filed the Protection Visa application the subject of these proceedings: CB 64-89 (“2014 Protection Visa Application”). In the 2014 Protection Visa Application the applicant claimed that:

   i)she left China to "run away from the harm" by her ex-husband: CB 81, who had threatened, stalked her and harmed her physically and mentally: CB 82; and

   ii)she feared that she would be harmed if she sought to gain access to her child and the matrimonial assets: CB 82-83;

   g)on 20 April 2015, the Delegate refused the grant of the Protection Visa to the applicant: CB 108-122; and

   h)on 5 May 2015, the applicant lodged an application for review of the Delegate’s Decision to the Tribunal: CB 123-124 (“Tribunal Application”).

Tribunal Decision

1. In the Tribunal Decision the Tribunal:

   a)found that the Tribunal Application was not prevented by s.48A of the Migration Act although the Tribunal’s power was limited to a consideration of the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Migration Act: CB 178 at [6];

   b)found that the applicant was an unreliable witness who was prepared to fabricate evidence and claims for the purpose of securing a permanent visa to remain in Australia: CB 193 at [81];

   c)accepted that if the applicant returned to China she may attend church meetings from time to time, but did not accept that the applicant was a committed Christian who would worship in an unregistered church or in a church perceived to be involved in anti-government activities: CB 194 at [87];

   d)found that the claimed incident in August 2009 was an isolated one, and that the chances of it reoccurring were remote, and that the applicant did not face a real risk of significant harm for reasons of her religious beliefs or activities if she returned to China: CB 195 at [89]-[90];

   e)rejected the claims relating to the applicant’s ex-husband on the basis that she had failed to make any mention of the claims until 2014: CB 195 at [91]. The Tribunal considered the applicant’s reasons for not raising the claim earlier: CB 196 at [92], but found the applicant’s reasons unconvincing: CB 196 at [93];

   f)accepted the applicant’s claims that she had begun using drugs two years earlier, but did not accept that she faced a real risk of significant harm as a result of her past drug use if returned to China: CB 197 at [97]. The Tribunal further considered that the likelihood of the applicant resuming drug use in China and being administratively detained was remote and did not amount to a real risk of significant harm: CB 197 at [97];

   g)considered the possibility of the applicant being charged with an offence arising from unlawful departure from China. The Tribunal, relying on country information, accepted that on the evidence before it the applicant would be charged as a first offender, and the most likely penalty would be a short period of detention and a fine: CB 197 at [98]. The Tribunal did not accept there was a real risk of the applicant suffering significant harm due to her unlawful departure from China: CB 198 [98];

   h)the Tribunal further considered the additional claim raised by the applicant at the Tribunal hearing that she feared harm upon return to China as she had not paid her debt to the “snakehead” for arranging her travel to Australia: CB 198 at [99]. The Tribunal did not, however, accept that the applicant still owed the “snakehead” any money: CB 198 at [100], and rejected that such debt or

i)indebtedness to anyone would give rise to a real risk of significant harm: CB 198 at [101]; and

j)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 199 at [105].

Grounds of the Judicial Review Application

1. Transcribed verbatim the Judicial Review Application contains the following grounds:

   1. The Tribunal erred in arriving at a conclusion unsupported by evidence.

   The Tribunal at paragraph 27 concludes that the applicant has travelled to Australia and this indicates that the applicant does in fact have the ability to be mobile and to relocate within China. The Tribunal fails to consider that there is household registration control in China and this household registration links to social benefits and personal identities. This control has adversely impact on the applicant’s ability to be mobile and to relocate.

   2. The Tribunal failed to disclose the sufficient country information in respect of free relocation within in China. Although the Tribunal at paragraph 60 disclosed UK Home Office report titled Country Information and Guidance China: Background Information, including actors of protection and internal relocation, it does demonstrate the applicant can easily relocate without any difficulty.

   3. The Tribunal failed to consider all of the applicant’s case. There is no inconsistent claim by way of emphasising the first protection visa application on religious ground and the second protection visa application on domestic violence. Based on that the Tribunal’s denial of the applicant credibility is farfetched.

Submissions

Applicant’s submissions

1. The applicant’s oral submissions (no written submissions were filed) comprised little more than a recitation of the grounds set out at [6] above, together with a bare assertion that if she was to return to China she would no longer be “competitive” to enable her to “get a foothold” in the employment market in China if she did not have a household registration card. The Court will treat this assertion as ground 4.

Minister’s submissions

1. In relation to:

   a)grounds 1 and 2 the Minister submits that the paragraphs complained of do no more than re-count, in relation to ground 1, a discussion between the Tribunal and the applicant at the Tribunal hearing, and in the case of ground 2, country information in relation to relocation within China, and that as such neither of the grounds can give rise to any alleged jurisdictional error;

   b)ground 3 the Minister submits that this is in essence an attack on a credibility finding and an impermissible plea for merits review of the Tribunal Decision; and

   c)ground 4, and insofar as the applicant made a submission concerning her capacity to obtain employment if returned to China, and therefore to subsist, the Minister submitted at hearing that no such claim was made before the Tribunal, and therefore no such claim could be judicially reviewed by this Court.

Consideration

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

Ground 1

1. In the Tribunal Decision at CB 181 at [27] the Tribunal said as follows:

   27. The Tribunal asked the applicant why she did not simply relocate within China if her ex-husband was harassing or threatening her. She replied she does not have the ability to relocate because she could not take her son elsewhere. The Tribunal put it to the applicant that she has travelled to Australia and that this indicated that she does in fact have the ability to be mobile and to relocate. The applicant then said the only place her ex-husband cannot find her is overseas, but in China he can find her anywhere. She said that every now and then, her ex-husband continues to visit her father's house to ask for the applicant's phone number. She said her father would not give him the number.

2. The above paragraph contains no conclusion by the Tribunal that the applicant is able to relocate within China. The paragraph merely documents the discussion between the Tribunal and the applicant at the Tribunal hearing. As such it cannot give rise to jurisdictional error on the part of the Tribunal. Insofar as ground 1 constitutes an allegation of a failure to consider relevant material, namely, household registration control in China, that issue is irrelevant, given that the Tribunal made no finding that the applicant could relocate within China to evade harm, and made no finding in that regard because it rejected the applicant’s claim to fear harm from her ex-husband, and, therefore, the necessity for relocation within China did not arise: CB 195-197 at [91]-[95].

3. In the above circumstances, ground 1 is not made out, and does not reveal jurisdictional error in the Tribunal Decision.

Ground 2

1. In the Tribunal Decision at CB 188 at [60] the Tribunal said as follows:

   60. The UK Home Office report titled Country Information and Guidance China: Background Information, including actors of protection and internal relocation (September 2015) states.

   Freedom of movement within China depends· on the individual's personal circumstances, including ethnicity, and where they are located within China (see Freedom of movement).

   2.2.2 The hukou system of individual registration in rural and city areas, historically a rigid family-based structure from which derives entitlement to most social and other benefits, has been significantly relaxed in recent times and many rural residents migrate to the cities, where the per capita disposable income is approximately three times the rural per capita income, but many can not change their official residence or workplace within the country. Most cities have annual quotas for the number of new temporary residence permits that can be issued, and all workers have to compete for a limited number of such permits. It is particularly difficult for rural residents to obtain household registration in more economically developed urban areas (see Hukou).

   2.2.3 In the country Guidance case of AX (Family Planning Scheme) China CG [2012] UKUT 00097 (IAC) (16 April 2012) the upper Tribunal found that where a real risk exists from the authorities in the 'hukou' area, it may be possible to avoid the risk by moving to a city. Millions of Chinese internal migrants, male and female, live and work in cities where they do not hold an 'urban hukou'. Internal relocation may therefore be an option to avoid risk in the 'hukou' area, although it will not be an option where there is credible evidence of individual pursuit of the returnee or his/her family, outside the 'hukou area' or if it would be unduly harsh to expect them to do so.

2. The Tribunal Decision at CB 188 at [60] does no more than recount country information in relation to the issue of internal relocation. Thus, although certain country information was set out in relation to relocation within China, particularly at CB 188 at [60], the country information is irrelevant to the Tribunal Decision in relation to the applicant’s fear of harm from her ex-husband, because the Tribunal rejected the claim concerning the ex-husband: CB 195-197 at [91]-[95].

3. It follows, that ground 2 is not made out, and does not give rise to any jurisdictional error in the Tribunal Decision.

Ground 3

1. The applicant’s assertion that the Tribunal “failed to consider all of the applicant’s case” is not particularised. In the absence of particulars this aspect of ground 3 is no more than an unparticularised assertion that the Tribunal committed an error of the kind described in cases such as Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 which provide that the Tribunal must consider all of the claims made by an applicant and all of the integers of those claims as articulated by the applicant or which arise clearly from the material provided. A reading of the Tribunal Decision does not reveal a failure to consider any claims made by the applicant, but rather a detailed setting out of the applicant’s various claims made prior to the Tribunal hearing: CB 177-178 at [3]-[14], and of the claims made at the Tribunal hearing itself: CB 180-184 at [19]-[48], which also demonstrate that the Tribunal made appropriate inquiries of the applicant in relation to her claims at the Tribunal hearing. The Tribunal also considered a plethora of independent country information: CB 184-192 at [49]-[69] under headings relevant to various claims made by the applicant. The Tribunal Decision then shows that the Tribunal dealt with the protection claims made by the applicant, and did so against a background of findings in relation to the applicant’s credibility: CB 194-198 at [83]-[102] (consideration of claims) and CB 193-194 at [77]-[82] (credibility issues). There is nothing in the Tribunal Decision which indicates that it “failed to consider all of the applicant’s case”, and this claim is not made out. Moreover, it must also fail for want of particularity: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited).

2. The applicant’s assertion that there “is no inconsistent claim” between the claims made in the 2011 Protection Visa Application and the 2014 Protection Visa Application was a matter of fact for the Tribunal to determine. The Tribunal’s statement that “the applicant has submitted inconsistent claims for protection as between her original application for protection in January 2011, as compared to her present claims made on 22 April 2014”: CB 193 at [81] was a finding that the Tribunal was entitled to make as it was a finding which was open on the factual material in relation to the two claims, as is evident from the summary at [4(c) and (f)] above and from the Tribunal’s summary of the claims at CB 177-178 at [5] and CB 179 at [8]-[14]. The Tribunal’s finding was therefore open to it on the evidence available. For this Court to consider this part of ground 3 would entail the Court engaging in a review of the merits of the Tribunal Decision, which is impermissible when engaged in judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

1. Generally speaking the Tribunal’s findings of fact on credibility issues are findings of fact par excellence: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, but they do not thereby operate as a shield to protect the Tribunal decision-making process from scrutiny: Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [78] and [119]-[121] per Robertson J. It is plain, however, that the Tribunal knew and understood the principles with respect to the assessment of evidence and materials before it, and it set out those principles in orthodox terms: CB 193 at [77]-[80]. The Tribunal’s assessment of the applicant’s credibility was based upon the fact that she failed to make the claims made in the 2014 Protection Visa Application until her 2011 Protection Visa Application claims had been dealt with by the then Refugee Review Tribunal and unsuccessfully appealed by her in SZQSA - FMC. The Tribunal further considered various aspects of the manner in which the applicant gave evidence, in forming the view that the applicant was “a most unreliable witness … prepared to fabricate evidence and claims for the purpose of securing a permanent visa to remain in Australia”: CB 193 at [81]. It is evident that the Tribunal considered the applicant’s evidence in relation to why the claim in relation to her ex-husband had not been raised previously and did not believe the applicant’s explanation: CB 195-196 at [92]-[93]. Having regard to the evidence considered by the Tribunal, and the materials before the Tribunal, the Tribunal’s assessment of the reliability of the applicant as a witness, and the conclusions that it reached in relation to her claims, were open to be made.

2. In all of the above circumstances, ground 3 is not made out, and does not establish jurisdictional error in the Tribunal Decision.

Conclusion and orders

1. The Court has concluded that none of the three grounds of the Judicial Review Application have been made out, and that the applicant has failed to establish that the Tribunal Decision is affected by jurisdictional error. It follows that the application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 2 December 2016