SZVSE v Minister for Immigration

[2017] FCCA 1654

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSE & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1654

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal failed to have regard to the applicants’ oral evidence – whether the Tribunal made a finding in the absence of probative evidence – whether the Tribunal failed to conduct the review as required by law – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

First Applicant: SZVSE

Second Applicant: SZVSF

Third Applicant: SZVSG

Fourth Applicant: SZVSH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3267 of 2014

Judgment of: Judge Street

Hearing date: 17 July 2017

Date of Last Submission: 17 July 2017

Delivered at: Sydney

Delivered on: 17 July 2017

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie
Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The first and second applicants to pay the first respondent’s costs fixed in the amount of $6,646.00.

3. The name of the second respondent be changed to the Administrative Appeals Tribunal and dispense with the need for filing of any document in that regard.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3267 of 2014

SZVSE

First Applicant

SZVSF

Second Applicant

SZVSG

Third Applicant

SZVSH

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 October 2014 affirming a decision of the delegate not to grant the applicants protection visas.

2. The first and second applicants are husband and wife, and the third and fourth applicants are their children, who have been joined as members of the family unit. The applicants were found to be citizens of China. The applicants claim to fear harm at the hands of the Chinese authorities because of their role in assisting North Korean refugees in China.

3. On 2 August 2013, the delegate found that the applicants failed to meet the criteria for the grant of a protection visa.

The Tribunal’s decision

1. The applicants applied for review on 14 August 2013 and appeared before the Tribunal to give evidence and present arguments on 9 January 2014 and on 16 October 2014.

2. The Tribunal identified the applicants’ background. In relation to the first applicant, the Tribunal identified that before he had travelled to Australia on 2 November 2012, he had travelled to Japan, South Korea, and Hong Kong. The Tribunal identified that the first, second, and third applicants arrived in Australia as the holders of a tourist subclass 676 visa.

Claims for protection

1. The Tribunal summarised the applicants’ alleged evidence helping North Koreans and the allegation that in August 2009 two people from the Beijing State Security Bureau came to the applicants’ home. The first applicant alleges the following day that he was taken for interrogation and detained. The first applicant alleges that he was put in a cell with prisoners to take care of him and that he was assaulted and suffered acute appendicitis and had to go to hospital.

2. The applicants allege that the second applicant paid a bribe in cash to the Director General of a particular branch of the Public Security Bureau for the release of the first applicant and that the applicants were allegedly told that they had to stop their accommodation business immediately.

3. It is also alleged that the first applicant had to report to the police any time he wanted to travel abroad and that he had to present himself whenever he was called by the police. The applicants allege that this caused them fear and anxiety and caused them to break their long-term contracts with their landlord and return most of the apartments and that they suffered a loss as a result.

4. The applicants alleged that in the middle of August 2012 someone called the first applicant to say that a particular person had been caught by the police. It was as a result of this that the applicants allege that they commenced preparation to depart for Australia and that the applicant received a phone call from a police officer on 28 August 2012 warning him that someone was inspecting his files.

5. The first applicant alleged that he developed acute appendicitis and, as the second applicant was pregnant, they went to stay with the second applicant’s mother and then departed China on 1 November 2012.

6. The Tribunal summarised the delegate’s reasoning and identified the submissions provided prior to the first hearing and summarised what occurred at the hearings. The summary included the evidence of the first applicant that he did not experience difficulties after he returned to China on 30 August 2009 until 19 August 2012 when he received the anonymous phone call warning him that a particular person had been arrested and then received a phone call from a particular police officer in September 2012.

Findings as to the applicants’ credit

1. The Tribunal also summarised the post-hearing submissions. The Tribunal identified that it made adverse credibility findings in respect of the applicants’ credit for reasons that were set out. Relevantly, in that regard, the Tribunal referred to the fact that the first applicant travelled to Japan shortly after he claimed he was detained and mistreated and then voluntarily returned to China four days later was a matter that cast doubt upon his claims of past harm in August 2009. That was a finding that was open on the evidence before the Tribunal.

2. The Tribunal referred to the fact that, despite having claimed to have been detained and mistreated by the Chinese authorities in August 2009, on 26 August 2009 the first applicant departed China on a valid passport issued in his own name and travelled to Japan before returning to China four days later on 30 August. The Tribunal made reference immediately thereafter as follows:

   When initially asked whether he had any concerns about returning to China so shortly after being abroad, the applicant said, “No.”

3. The Tribunal then referred to reminding the first applicant that in his written statement he had said when the police told his wife they would release him soon and that they must stop the business, that he was also informed that he was on a black list and told that he must report to the police whenever he needed to travel and he must present himself when called to the police and that these words sent shivers down his spine. The first applicant’s evidence was that he reported to the police before he travelled to Japan and that they asked him whether he was travelling alone or with friends.

4. The Tribunal found the first applicant’s evidence about why he travelled to Japan for four days in August 2009 to be confused. The Tribunal made reference to the first applicant’s initial responses to why he travelled to the effect that he was deeply hurt physically and mentally and then being asked whether there was any other reason he went to Japan and responding “no”. The Tribunal then asked the first applicant about how long he stayed in Japan, then when asked whether he considered staying in Japan rather than returning to China, he said he went to Japan to close his Japanese office and to dismiss staff.

5. The inconsistency in the first applicant’s evidence was raised with the first applicant by the Tribunal. The Tribunal noted that the first applicant then told the Tribunal that, because he felt hurt, he did not want to carry out any business and Japan was very expensive and if he closed the business, he did not need to pay any fees. The first applicant advised that the business in Japan was different to the serviced apartment business. The Tribunal referred to the second applicant corroborating the first applicant’s evidence about the reasons he travelled to Japan, saying that he needed to close the business for financial reasons and that he was suffering from mental problems.

6. The Tribunal found that the first applicant’s evidence about experience of past harm in China and his fragile mental state at the time he travelled to Japan in August 2009 was undermined by the fact that the first applicant returned to China after spending four days in Japan. The Tribunal made reference to the first applicant’s written claims where the first applicant felt fearful and anxious about reporting requirements imposed upon him when he was released from the hospital and that he initially told the Tribunal he travelled to Japan because he was deeply hurt physically and mentally and that that evidence was difficult to reconcile with the fact that the first applicant returned to China after spending only four days in Japan and his evidence that he had no concerns about returning to China so shortly after being detained.

7. The Tribunal made reference to having considered the first applicant’s evidence that his problems appeared to have ended after his wife paid the bribe to secure his release and his impression from the police interrogation that the police did not have the full details about his case and that his fears that he would face persecution only manifested when he received the anonymous phone call in August 2012. The Tribunal also considered the first applicant’s written submissions that Japan was a nice place, but prone to earthquakes and that he preferred to seek protection elsewhere.

8. The Tribunal considered it highly improbable that a person in the first applicant’s situation of being arrested, detained, mistreated by Chinese authorities in August 2009 and hospitalised under police guard and only released subject to reporting obligations would travel abroad immediately after these events, but give no thought to claiming asylum and had no concerns about returning to China.

9. The Tribunal also identified concerns in relation to the applicants’ evidence as to their trigger for leaving China to be improbable and undermined by the timing of their departure from China, noting that the applicants left China on valid passports issued in their own names. The Tribunal identified having raised with the first applicant the issue concerning the arrest of a particular person that occurred in August 2012 and that if the authorities had had adverse interest in the first applicant, they would have had time to interrogate the first applicant if he was of any adverse interest to the authorities before he left China in November 2012.

10. The Tribunal identified raising with the first applicant that if he was of interest to the authorities, they would have taken action against him in 2009. The Tribunal identified raising with the first applicant at the second hearing if the applicants were of adverse interest to the authorities because of information the authorities had obtained when they arrested the particular person in August 2012, then the authorities would have had ample opportunity to question the applicants before they left China. The Tribunal found the applicants’ timing of travel to Australia undermined their claims that they decided to leave China because of the anonymous phone call in August 2012 and they were fearing an arrest at any time. The Tribunal found that the applicants had not credibly explained why, if they believed they were in imminent danger of being apprehended by the Chinese authorities, they did not make arrangements to travel out of China immediately after obtaining visas to travel to Australia instead of remaining in China until November 2012.

11. The Tribunal made reference to the first applicant’s explanation of health ailments and alleged signs of a miscarriage. The Tribunal found that the first applicant’s capacity of travel within China after August 2012, prior to their departure, undermined their claims that their travel out of China was delayed because of health issues. The Tribunal found that the first applicant’s alleged suffering of medical conditions was not supported by any medical evidence.

12. The Tribunal found that if the applicants were of adverse interest to the authorities following the arrest of the particular person on 19 August 2012, the time of the alleged phone call, then the authorities had ample opportunity to question the applicants before they departed China on 2 November 2012. The Tribunal found that, in light of the first, second and third applicants being able to depart China on valid passports issued in their own name on 1 November 2012 strongly indicates they were not, at that time, of any adverse interest to Chinese authorities for any reason and that this cast further doubts on the applicant’s claims that, at the time they left China, the first applicant was under official investigation following the arrest of the particular person in August 2012.

13. The Tribunal made reference to the first applicant’s evidence about being on a blacklist being vague and speculative and the Tribunal made reference to the first applicant in the second hearing saying that the particular officer did not warn him about the blacklist during the telephone conversation in September 2012 when he warned the first applicant he was under investigation. The first applicant also confirmed that, after he returned to China from Japan on 30 August 2009, he travelled in and out of China on multiple occasions without difficulty. The Tribunal noted that the first applicant did not report to the authorities before travelling out of China on subsequent occasions and found the fact that he was able to do so indicates that he was not of any adverse interest to the authorities at these times and found this cast further doubt upon the first applicant’s claims he was subject to monitoring.

14. The Tribunal found that the first applicant’s claims about being of adverse interest to the Chinese authorities were deepened by the fact that the first applicant does not appear to have been the subject of a summons or an arrest warrant nor had the authorities taken any attempts to locate the applicants before they left China or in the immediate aftermath of their departure.

15. The Tribunal found that the assertion that the first applicant’s mother was interrogated by the Chinese authorities in August 2014 lacked credibility and lacked plausibility. The Tribunal made reference to the fact that the applicants’ departure on valid passports in their own name would be known to the Chinese authorities. It is in this context that the claim about the first applicant’s mother being interrogated in August 2014 as to the first applicant’s whereabouts lacked credibility.

16. The Tribunal found the applicants’ claims to have attracted the adverse attention of the Chinese authorities were not credible by reference to corroborating documentation.

17. The Tribunal was prepared to accept that the first applicant was of Korean ethnicity and that, whilst he was in China, he managed serviced apartments in Beijing between 2006 and 2009. The Tribunal identified that the issue was not whether they were running apartments but whether they provided accommodation and assistance to North Korean defectors, and whether this assistance had come to the attention of the authorities in 2009 and again in 2012.

18. The Tribunal was not satisfied the applicants’ claims to have attracted adverse attention of the authorities were credible. The Tribunal found that the material inconsistencies in the testimony of the first applicant was not overcome by the consistent evidence provided by the second applicant.

19. The Tribunal did not accept the applicants’ claims as credible, and did not accept the applicants ever provided shelter to North Korean refugees in their serviced apartments, or that they concealed the presence of North Korean refugees from local authorities, or that they ever provided any form of assistance to the North Korean refugees. The Tribunal did not accept that the first applicant was approached by the Beijing State Security Bureau in 2009, or that he was taken to the police station by the PSB officers where he was detained, assaulted by other prisoners, and then taken to hospital under police guard.

20. The Tribunal did not accept that the first applicant was injured whilst in police custody as claimed, or that he was subject to police investigations as claimed. The Tribunal did not accept that the police directed the applicants to close their serviced apartment business, or that the first applicant was only released from hospital after the second applicant paid police a bribe to secure his release.

21. The Tribunal did not accept that an anonymous person contacted the first applicant in August 2012 and advised that a particular person had been arrested, or that the first applicant received a warning from a particular officer in September 2012. The Tribunal did not accept that the applicants have ever provided shelter or assistance to North Korean defectors as claimed. The Tribunal rejected the applicants’ claims in their entirety that they attracted adverse attention of the Chinese authorities.

22. The Tribunal did not accept that the applicants have a well-founded fear of persecution on account of their political opinion or for any reason if returned to China now or in the reasonably foreseeable future. The Tribunal did not accept that the adult applicants were of any adverse interest to the Chinese authorities, and did not accept that they would be arrested, detained, interrogated or charged with criminal offences or otherwise mistreated by the Chinese authorities, and rejected that they would be unable to care for the child applicants. The Tribunal did not accept the applicants have any profile with the Chinese authorities other than that of ordinary Chinese citizens, and did not accept the applicants have ever, or are now, of adverse interest to the Chinese authorities for the reasons claimed.

23. The Tribunal noted that no separate claim had been raised on behalf of the child applicants, and on the evidence before the Tribunal, it was found there was no other basis for concluding that the applicants are entitled to protection as refugees. The Tribunal did not accept the applicants have a well-founded fear of being persecuted for reasons of their real or imputed political opinion, or for any other Convention reason if returned to China now or in the reasonably foreseeable future. The Tribunal found that the applicants were not refugees under the Act.

Complementary protection assessment

1. The Tribunal did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China there is a real risk that any of the applicants will suffer significant harm within the meaning of s.36(2)(aa) of the Act.

2. The Tribunal found that the applicants are not persons in respect of whom Australia has any protection obligation, and found that the applicants failed to meet the criteria under s.36(2)(aa), and that the applicants were unable to meet the criteria under s.36(2)(b) or (c).

Proceedings before this Court

Grounds in the application

1. The grounds in the amended application are as follows.

   1. The Tribunal failed to conduct the review required by law; and or failed to have proper regard to the oral evidence of the First Applicant; and or made the decision in the absence of probative evidence:

   (i) The Tribunal stated at CB408 [44]-[45] of its decision:

   44. For all the reasons that follow, I do not accept the applicants' claims are credible.

   45. I consider the fact Mr [X] travelled to Japan shortly after he claims he was detained and mistreated and then voluntarily returned to China four days later casts doubts upon his claims of past harm in August 2009. Despite having claimed to have been detained and mistreated by the Chinese authorities in August 2009, on 26 August 2009 Mr [X] departed China on a valid passport issued in his own name and travelled to Japan before returning to China four days later on 30 August 2009 (Tribunal file, folio 113). When initially asked whether he had any concerns about returning to China so shortly after being detained, Mr [X] said no.

   (emphasis added)

   (ii) However, the First Applicant never said to the Tribunal that he had no concerns about returning to China after being detained. A transcript of the hearing records the following exchange between the Tribunal and the First Applicant:

   Member: Did you have any concerns about travelling out of China to Japan on the 26^th August so shortly after you had been detained?

   Applicant No.

   (see page 41 of the affidavit of Z, affirmed on 31 July 2015)

   (iii) The Tribunal stated at CB413 [60] of its decision:

   60. Ultimately, I do not accept the applicants' claims as credible ...

   (iv) The Tribunal proceeded to reject the Applicants' claims in their entirety, at CB413-414 [60]-[61], based on its finding that the Applicants claims were not credible.

   (a) The Tribunal, in conducting its review, was required to have proper regard to the evidence before it, the claims made and the integers of those claims. Its failure to have regard to the First Applicant's answer to the question asked of him, as set out in particular (ii) above meant that it failed to conduct the review required by law. The failure was of significance to the review, because it consequentially found that the Applicants' claims were not credible and it rejected the Applicants' claims in their entirety. That failure constituted jurisdictional error.

   (b) There was no evidence that the First Applicant was asked by the Tribunal if he had any concerns about returning to China so shortly after being detained. Nor was there evidence that the First Applicant answered 'no' to that question. The Tribunal relied on the purported answer to the purported question as a basis for rejecting the Applicants' claims as credible. The Tribunal's decision was made in the absence of probative evidence. That failure constituted jurisdictional error.

Applicants’ submissions

1. Mr Dobbie, the solicitor for the applicants, took the Court to the Tribunal’s reasons, and in particular the start of the adverse credibility findings identified as being “for the reasons that follow”, and the reasoning of the Tribunal in relation to the adverse credibility findings. Mr Dobbie took the Court to the transcript and in particular question 246, which relevantly is as follows.

   Q246     Did you have any concerns about travelling out of China to Japan on the 26th of August so shortly after you had been detained?

   A  No.

2. Mr Dobbie submitted that there was no actual question asked about returning to China and concerns of the first applicant to which the first applicant said “no”, and submitted that the concept of the applicant having no concerns about returning to China was material to the adverse credibility findings and was twice picked up in paragraph 47 in reference to the first applicant having given evidence that he had no concerns about returning to China so shortly after being detained. This was then the subject of reasoning, referring to the high improbability of a person being subjected to the alleged treatment in August 2009, being hospitalised, being the subject of reporting obligations and then travelling abroad after those events, but giving no thought to claiming asylum and having no concerns about returning to China.

3. Mr Dobbie submitted that the first applicant did not give evidence to the effect that he had no concerns about returning to China in August 2009, and that the Tribunal had misunderstood the first applicant’s evidence in a material respect to the reasoning on credibility, constituting a jurisdictional error.

Consideration

1. The Court has carefully looked at the transcript of the two hearings before the Tribunal and the context in which on the first hearing day the question arose at question 246. Relevantly, at questions 45 to 49, before the Tribunal on the first day, the following exchange occurred:

   Q45 Yeah. I know you were - I can see that you were in Japan in 2009. Why did you go to Japan in 2009?

   A 26th of August. I remember this very clearly because I went there to close my business there.

   Q46 So, you went to Japan on the 26th of August, 2009 and how long were you there for?

   A Four days in 2009.

   Q4 7 So, when did you go back?

   A 30th of August.

   Q48 30th of August, okay, and did you go to Japan at any other time in 2009?

   A Yes.

   Q49 And how long did you got to Japan for in April?

   A The 23rd and I came back the 30th. All the Japanese visas I held were business visas.

2. The Tribunal also asked in the course of the transcript on the first day and on the second day of hearing a question to the effect of whether the applicant had any difficulties with the authorities whilst living in China after coming back from Japan in 2009 until receipt of the warning in 2012, and the applicant responded “no”. At the second hearing, the gist of that question was put as to whether the first applicant had any problems, and the first applicant responded “no”.

3. The Tribunal’s reasons are not to be read with a keen eye for error. On a fair reading, the Tribunal in paragraph 45 was summarising the gist of the applicant’s evidence when the Tribunal initially asked whether he had concerns about returning to China so shortly after being detained and the first applicant said “no”.

4. The question that was asked by the Tribunal as to whether the first applicant had concerns about travelling so shortly after having been detained, to which the first applicant said “no”, was one fairly to be understood by the Tribunal as involving travel out of China to Japan and back again within four days, and that travel commenced on 26 August 2009. The Court does not accept that the Tribunal made an error of fact in its reasoning in relation to whether the first applicant had concerns in respect of the trip made at the end of August from China to Japan and back so shortly after being detained.

5. That this reflects a fair reading of the Tribunal’s evidence is also supported by the summary immediately before the reference to the gist of question 246 that was summarising the essence of the evidence earlier given about the travel following the applicant’s release in August 2009 from China to Japan and back over a period of four days in Japan. The question as to whether the applicant had concerns about travelling out of China to Japan on 26 August 2009 so shortly after being detained, to which the first applicant responded “no”, in the Court’s opinion, clearly included the travel out of China to Japan and return again.

6. Even if, on a fair reading, it was found that there was an error by the Tribunal, it was not in the present case a material error. It is apparent that the Tribunal correctly understood the applicant’s claims, and the adverse credibility findings were open on the material before the Tribunal and cannot be said to be illogical or unreasonable. The adverse credibility findings in relation to the applicant having departed so shortly after the alleged abuse in August 2009 was an adverse credibility finding that cannot be said to lack an evident and intelligible justification.

7. The first applicant’s evidence to the effect that he had no concerns, even if construed as limited to travelling out of China, does not identify any material fact-finding error, or any misunderstanding of the applicants’ claims. If there be a literal error by the Tribunal in its reasoning, it was peripheral in the present case to the adverse credibility findings. No jurisdictional error is made out by Ground 1 of the amended application.

Conclusion

1. The amended application is dismissed.

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

Date: 3 August 2017

CORRECTIONS

1. Reasons for Judgment: Page 10, Paragraph 37, removal of a name.

2. Reasons for Judgment: Page 10, Paragraph 37, further removal of a name.