SZVUM v Minister for Immigration

[2015] FCCA 2263

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2263

Catchwords:
MIGRATION – Application for review of Tribunal decision – whether Tribunal afforded procedural fairness – whether Tribunal did not consider a relevant consideration – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 189, 422B, 476, Part 7

Migration Regulations 1994 (Cth) reg.1.05A

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143
Saeed v Minister for Immigration and Multicultural Affairs [2010] HCA 23; (2010) 267 ALR 204
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 231 ALR 412
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

First Applicant: SZVUM

Second Applicant: SZVUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3414 of 2014

Judgment of: Judge Nicholls

Hearing dates: 5 & 12 August 2015

Date of Last Submission: 12 August 2015

Delivered at: Sydney

Delivered on: 21 August 2015

REPRESENTATION

Applicants: In Person

Solicitor for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 9 December 2014 is dismissed.

3. The applicants pay the first respondent’s costs set in the amount of $8,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3414 of 2014

SZVUM

First Applicant

SZVUN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 9 December 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), now the Administrative Appeals Tribunal, made on 13 November 2014 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

1. Two bundles of relevant documents (“the Court Book” – “CB” and the “Supplementary Court Book” – “SCB”) are in evidence before the Court. These reveal that the applicants are father (“the applicant”) and son (“the second applicant”). Both are citizens of the People’s Republic of China (“China”) (CB 16 and CB 31)..

2. The applicant arrived in Australia on 9 September 2007 as the holder of a visitor visa. He applied for a protection visa on 19 October 2007. This was refused by a Ministerial delegate on 6 November 2007. The Tribunal, as differently constituted, affirmed the delegate’s decision on 22 April 2008. The Federal Magistrate’s Court (as it was then known) dismissed an application for judicial review of the Tribunal’s decision on 3 November 2008 ([1] at SCB page 2 of 13).

3. The second applicant arrived in Australia on 13 February 2007 as the holder of a student visa. He was subsequently granted a further student visa which ceased on 15 March 2009. He remained in Australia “unlawfully” and was subsequently detained pursuant to s.189 of the Act on 29 May 2013 ([2] at SCB page 2 of 13).

4. The second applicant applied for a protection visa on 11 June 2013. That application was refused by a Ministerial delegate on 22 July 2013. An application for review of that decision was determined by a differently constituted Tribunal, affirming that delegate’s decision on 23 September 2013 ([2] at SCB page 2 of 13). The second applicant’s claims were considered as against s.36(2)(a) and (aa) of the Act.

5. The Full Federal Court handed down judgment in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”) on 3 July 2013. The Court found that s.48A of the Act did not prevent a non-citizen from applying for a protection visa on a further occasion where any previous application had been determined with reference only to one of the criteria set out at s.36(2) of the Act for the grant of a protection visa.

The Current Application for Protection Visas

1. The applicants made a second application for protection visas on 29 October 2013. They were assisted by a registered migration agent and solicitor (Mr Chang Hong Liu) (CB 1 to CB 37). In relation to the applicant, in the circumstances, that application was limited to claims to protection made under s.36(2)(aa), (b) or (c) of the Act, given that a previous application had been refused with reference to s.36(2)(a) of the Act.

2. The applicant’s claims to fear harm were set out briefly in the protection visa application form (CB 22 to CB 23). These were that he had been harmed and mistreated by persons in his village and feared harm from creditors, debt collectors and the authorities because of a large debt. He claimed that he had been dispossessed of his land and feared harm on return to China when he would seek to regain it. No further particulars were provided.

3. At an interview with the delegate the applicant provided some details as to these claims. He also claimed to fear harm as a genuine Falun Gong practitioner who had had been “removed” from his household registration by the authorities (CB 57).

4. The second applicant applied as a dependent member of his father’s, the applicant’s, family unit in this protection visa application. His claims to protection, pursuant to s.36(2)(a) and (aa) of the Act, as stated above, had previously been considered and rejected.

5. The delegate refused the applications for protection visas on 23 April 2014 (CB 50 to CB 66). The delegate found that the applicant was not, and had not been, a genuine Falun Gong practitioner. Further, that removal from the family household registration did not occur in the circumstances as claimed. The delegate concluded that the claim concerning the debt was either invented or greatly exaggerated. The application in relation to the applicant was refused on this basis.

6. The delegate found that the second applicant was not “dependent” on his father and, therefore, not a member of his family unit for the purposes of the Act and with specific reference to reg.1.05A(b) of the Migration Regulations 1994 (Cth) (CB 66). The second applicant’s application was refused on this basis.

The Tribunal

1. The applicants applied for review to the Tribunal on 12 May 2014. They were assisted by the same migration agent and solicitor (CB 67 to CB 69). They appeared before the Tribunal at a hearing on 11 November 2014 with their representative (CB 81). At the hearing, on the evidence in the Court Book, only the applicant advanced claims to protection.

2. The Tribunal set out the relevant legal context in its decision record ([6] at SCB page 3 of 13). The Tribunal understood that in relation to the applicant, its consideration must be confined to whether he satisfied the requirements of s.36(2)(aa), (b) or (c) of the Act. Given the second applicant’s circumstances, it understood its consideration to be limited to whether the second applicant was a member of the family unit of a person who satisfies, relevantly, s.36(2)(aa) of the Act ([7] at SCB page 3 of 13).

3. The Tribunal refused the grant of a protection visa to the applicant, finding that he did not meet s.36(2)(aa) of the Act. The basis for the Tribunal’s decision was that it found that the applicant was not a “truthful witness” and had “manufactured” additional claims “following the refusal of his first Protection visa application in an attempt to obtain residence in Australian by relying on the Complementary Protection provisions” ([15] at SCB page 4 of 13). It found, further, that he did not meet the criteria at s.36(2)(b) or (c) of the Act.

4. The Tribunal found that the applicant was not, and had never been, a Falun Gong practitioner. This finding arose from the Tribunal’s assessment of his evidence, and the finding of a lack of credibility of his claims and evidence. The Tribunal gave reasons for this conclusion. These are fairly summarised in the Minister’s written submissions (at [11], with reference to [16] at SCB page 5 of 13 to [25] at SCB page 8 of 13):

   “On 13 November 2014, the Tribunal affirmed the Delegate’s decision to refuse to grant a protection visa to the applicant. Consistent with the decision in SZGIZ, the Tribunal considered the applicant’s claims against the complementary protection criteria set out in s.36(2)(aa) of the Act. In short, the Tribunal was not satisfied that the applicant was a truthful witness and considered that he had manufactured additional claims following the refusal of his first visa application. It was not satisfied that the applicant’s claims, considered singularly or cumulatively, gave rise to a substantial risk of significant harm. The Tribunal reached this conclusion for the following reasons:

   (a) In relation to the applicant’s claimed practice of Falun Gong, the Tribunal found that the applicant was not, and had never been, a Falun Gong practitioner. In so finding, the Tribunal identified the following matters which centrally weighed on the applicant’s credibility:

   (i) despite claiming in the first visa application to be a Falun Gong practitioner, no such claims were made to the Department in connection with the applicants second visa application until his interview with the Department on 21 March 2014;

   (ii) the applicant’s evidence in relation to his practice of Falun Gong was internally inconsistent and otherwise ‘problematic’;

   (iii) the applicant demonstrated little knowledge of Falun Gong, despite his claim to have been a practitioner since 1995; and

   (iv) the applicant’s failure to provide evidence that he practiced Falun Gong in Australia was indicative of his Jack of interest in Falun Gong. The Tribunal also did not accept the applicant’s explanation that local practitioners thought he was a Chinese spy or ‘probe’.”

5. Based on its adverse credibility finding the Tribunal subsequently found that the entirety of the land confiscation claim had also been manufactured ([27] at SCB page 9 of 13).

6. However, the Tribunal found that even if it were to accept that the applicant’s land had been forcibly acquired, and that inadequate compensation had been made, it was not persuaded on the evidence before it that the applicant or his family would take further action such as to attract harm ([27] at SCB page 9 of 13).

7. The Tribunal rejected the applicant’s claim in relation to the debt and the money lenders. It found his evidence in this regard to be inconsistent and implausible ([28] at SCB page 9 of 13 to [32] at SCB page 11 of 13).

8. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there was a real risk that he would suffer significant harm. Therefore, the Tribunal found that the applicant did not meet the criterion at s.36(2)(aa) of the Act ([34] at SCB page 11 of 13).

9. The Tribunal also found that the applicant did not meet s.36(2)(b) or (c) of the Act, in that no other member of his family held a protection visa ([35] at SCB page 11 of 13).

10. In relation to the second applicant, the Tribunal found ([36] at SCB page 11 of 13):

    “As the applicant does not satisfy the criteria for a Protection visa, it is unnecessary for the Tribunal to consider whether [the second applicant] is a dependent of the applicant and a member of his family unit. This is because he is unable to meet the criteria requiring him to be a member of the family unit of a person who is owed protection obligations. The Tribunal finds, therefore, that the second named applicant does not meet s.36(2)(b) or (c).

Before the Court

1. The application before the Court contains two grounds:

   “The decision of the Tribunal:

   [1] was affected by the procedural unfairness.

   [2] failed to take into account relevant considerations. ”

2. In his written submissions, the Minister notes that the applicant has apparently sought to raise a third ground of review in his affidavit of 6 December 2014. That is, that he was refused a protection visa by the Minister’s delegate without an interview (see [2] of the applicant’s affidavit) (see further below).

3. By orders made by a Registrar on 29 January 2015, the applicants were given the opportunity to file any amended application, evidence by way of affidavit or written submissions. The matter was subsequently set down for final hearing on 5 August 2015.

4. On that date the applicant appeared in person. The second applicant, who is held in immigration detention at a facility in the Northern Territory, appeared by video-link. Both were assisted by an interpreter in the Mandarin language.

5. The applicant sought to raise a complaint not made previously, despite the opportunity to file an amended application. He stated that his son’s “privacy” had been “breached” by the Minister’s department. The applicant claimed that he was not given an opportunity before the Tribunal to raise this matter. The second applicant explained that he had received a letter from the Minister’s department concerning the release of his personal information on the internet by the Minister’s department (“the privacy breach”).

6. The applicants’ explanation for not raising this earlier with the Court, noting the orders made by the Registrar in January of this year, was that the applicant had “told” his “agent about this” and that the “agent failed to submit information in relation to this”. Further, although not entirely clear, the applicant had hoped that his agent would attend Court with him.

7. There is no solicitor on the record in this matter. Nor was there any indication up to 5 August 2015 that the applicants had received legal assistance in making and prosecuting their application to the Court.

8. However, the applicants explained that they had been assisted by the person who had represented them before the delegate and the Tribunal. They confirmed that this person was Mr Chang Hong Liu, who they understood to be both a migration agent and solicitor (see CB 1, CB 13, CB 30, CB 37, CB 46 to CB 48, CB68, CB 70, CB 73, CB 81 and CB 92).

9. Although the applicants had had a reasonable opportunity to prosecute their case including by filing any amended application, and the exact involvement of Mr Liu was unclear, I gave the applicants a further opportunity to amend their application, file evidence in support and to see if their solicitor was able to attend Court to assist them and explain their case. The hearing was adjourned until 12 August 2015.

10. On 7 August 2015, a document said to be an affidavit sworn by the applicant on 6 August 2015, with annexures, was filed in the Court’s Registry.

11. At the resumption of the final hearing the applicant appeared in person. The second applicant appeared by telephone having previously confirmed that he would rely on his father, and possibly their “agent”, to speak for him. They were again assisted by an interpreter in the Mandarin language.

12. It was clear from the applicant that he and his son wanted to press the son’s privacy breach matter. In this context, the Court drew the applicant’s attention to his affidavit of 6 August 2015.

13. A number of significant difficulties emerged in relation to this document. First, and foremost, the applicant disavowed any knowledge of its contents. He explained that his “agent” (Mr Liu) had prepared the document, gave it to him to sign, and filed it with the Court’s Registry.

14. Second, the applicant indicated that he does not speak, read or write English. The affidavit contains no “Interpreter’s jurat”. I understood this to support the applicant’s claim as to the provenance of the document. That is, that he had no knowledge of its contents.

15. Third, the document, at [1], is at best ambiguous. The first sentence refers to the second applicant’s “personal detail”, but the second sentence refers to the applicant’s concern about the “unauthorised” access of his (“my”) details, not his son’s details.

16. At [2] – [5], the document refers to the annexures to the document, concerning only the second applicant. Yet, [6] asserts jurisdictional error on the party of the Tribunal “…in making assessment on my case”.

17. Fourth, the applicant was unable to explain before the Court how the affidavit was relevant to any fact in issue before the Court.

18. It is clear, on what the applicants told the Court, that they left the conduct of their case in the hands of their agent. The first applicant volunteered to the Court that the agent assisted them, including with the filing of the affidavit of 6 August 2015, by preparing and submitting the application and an accompanying affidavit to the Court (on 6 December 2014). The former was said to have been done free of charge.

19. The failure to provide an amended application, making some attempt to link the second applicant’s data breach issue to the Tribunal’s decision, left the affidavit in a position where its relevance to the grounds of the application was not apparent. Nor was the applicant able to assist in any way in this regard.

20. The Minister opposed the grant of leave for the affidavit to be read into evidence.

21. In considering whether to grant leave for the affidavit to be read into evidence, I took the view that the matters set out at [35] – [39] above could possibly be explained, or advanced, by granting the leave to read the document into evidence and giving the Minister the opportunity to extract some explanation by cross-examination of the applicant. This was a course that the Minister had indicated he would seek, if leave were to be granted.

22. However, the applicant’s disavowal of any knowledge of the contents of the affidavit would render any such exercise futile. Separately, the applicant’s disavowal, of itself, is, in my view, sufficient reason not to grant the leave.

23. A further reason is that in the circumstances, even if leave were granted for, in effect the “data breach” documents to be put before the Court, and even if legal error was then to be found in the Tribunal’s decision, there would still remain a strong argument against the granting of discretionary relief that the application to the Court states that it seeks. That is, relief in the nature of certiorari and mandamus.

24. This is because the second applicant’s claim to a protection visa before the Tribunal was limited, for the reasons set out above, to the question of whether he was a dependent of, and a member of the family of, a person who had been granted a protection visa.

25. The Tribunal’s finding that the second applicant was not a member of the family of any such person was reasonably open to it to make on what was before it. For the reasons set out below, there is no jurisdictional error in the Tribunal’s decision in relation to the applicant. Given that the second applicant’s application for the visa was dependent on the success of the applicant’s application (that is, his father’s application), then any return to the Tribunal of the second applicant’s application would be an exercise in futility. In all, therefore, leave to read the applicant’s affidavit was refused.

26. I note further that even if the second applicant’s data breach and privacy claim had been before the Tribunal, or if the matter were to be referred to the Tribunal, this claim is not relevant to the Tribunal’s consideration in relation to the second applicant’s application for review. That is, it is not relevant to the only criteria for a protection visa available to the second applicant, namely s.36(2)(b) or (c) of the Act.

27. It is the case, as the Full Federal Court found in SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143 (“SZSSJ”) that this Court does have jurisdiction in certain circumstances that existed in that case involving the conduct of the Minister and the Tribunal in relation to those applicants, who raised the data breach matter (see SZSSJ at [38] – [43]).

1. However, key aspects of those circumstances are not available or evident in the case before the Court now. It must be remembered that the applicants volunteered that they had legal assistance in the preparation and prosecution of their case before the Court. However, as stated above, despite the opportunity provided to the applicants to file an amended application, and recently repeated and emphasised to them, no amended application has been filed.

2. The application that is before the Court cannot be said to adequately plead the matters noted by the Full Court in SZSSJ (at [41] – [42]) such as to say that the Court’s jurisdiction pursuant to s.476 of the Act is engaged in the current case on this issue. As set out above that application makes two assertions of jurisdictional error on the part of the Tribunal. I also note, with reference to what is set out immediately above, that the grounds of that application are directed only to the Tribunal’s decision.

3. Ground one of the application asserts that the Tribunal decision was affected by procedural unfairness. No particulars are provided. There was no explanation by the applicants before the Court as to what was meant here.

4. As the Minister submits, Div. 4 of Part 7 of the Act contains the exhaustive statement of the requirements of procedural fairness, in relation to the matters that it deals with (see s.422B and see Saeed v Minister for Immigration and Multicultural Affairs [2010] HCA 23; (2010) 267 ALR 204).

5. The applicants have not pointed to, or identified, any breach of Div. 4 of the Act. To make out the claim of procedural unfairness the applicants would need to show that the Tribunal decision was affected by such a breach (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 231 ALR 412 at [60]).

6. In any event, I cannot otherwise see on the material before the Court that the Tribunal breached its relevant procedural fairness obligations. In particular, I note the applicants attended a hearing before the Tribunal. The applicants were given the opportunity to explain and expand on their claims. In this regard, I note that the applicants have not taken up the opportunity to provide evidence before the Court of what occurred at the Tribunal hearing. The only evidence, read before the Court, are the references in the Tribunal’s decision record.

7. The Tribunal’s record reveals that the Tribunal raised its concerns with the applicant’s evidence at the hearing and he was given the opportunity to respond. The issues dispositive of the review were discussed. In all, ground one is not made out.

8. Ground two asserts that the Tribunal’s decision revealed that the Tribunal failed to take into account relevant considerations. Again, no particulars are provided.

9. There is nothing in the material now before the Court to suggest it failed to take into account a relevant consideration as that concept is explained by such authorities as Minister for Aboriginal Affairs v
   Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

10. Further, as the Minister submits such a claim may lead to jurisdictional error being revealed if the considerations were material to the review and the Tribunal unreasonably failed consider then (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]). However, no such error is apparent in the Tribunal’s decision.

11. The Tribunal considered each of the applicant’s claims to fear harm. These were his claimed practice of Falun Gong, deregistration from his household registration, the claimed compulsory acquisition of land and what he said was a large unpaid debt.

12. The Tribunal made findings in respect of each of these matters that were reasonably open to it to make on what was before it, and for which it gave cogent reasons, probative of the material before it. The Tribunal’s adverse finding as to the applicant’s credibility was also such a finding. In all ground two is not made out.

13. As referred to earlier, in his affidavit of 6 December 2014 filed in these proceedings, the applicant claims he was denied an interview by the Minister’s department, that is, before the delegate.

14. First, I note that the Court has no jurisdiction to review the delegate’s decision in circumstances where that decision is reviewable, and indeed was reviewed by the Tribunal under Part 7 of the Act.

15. Second, unlike the Tribunal, there is no statutory obligation on the Minister to provide an interview. Although the principles of common law procedural fairness may require it in certain circumstances.

16. Third, in any event, any such defect in the delegate’s decision would be cured by the Tribunal in circumstances where the Tribunal’s decision is not affected by jurisdictional error as is the case here.

17. Fourth, and on its own dispositive of this issue, the evidence before the Court is that the applicant was interviewed by the delegate (see CB 54 to CB 59).

18. Fifth, it would appear consistent with what the applicant told the Court today in relation to his affidavit of 6 August 2015, that he had little or no knowledge of what was in that earlier affidavit. For example, the applicant was unable to explain why he also purported to give evidence that he and his “mother” made the application for the protection visas on 29 October 2013, when the applicants before the Court, as stated above, are father and son.

19. As referred to above, the applicants were assisted and represented by a migration agent and solicitor in the making of the application for the protections visas and the subsequent application for review (see above at [30]). While the name of the relevant law firm appears to have changed over time, the common element in this representation was “Mr Chang Liu” who is described as “Solicitor and Migration Agent” (see CB 1, CB 13 and CB 46). This person is also described in the relevant documentation as “Chang Hong Liu” (see CB 13, CB 30 and CB 37).

20. The applicant’s affidavit of 6 December 2014 (as with his affidavit of 6 August 2015), filed with his application to the Court for judicial review, contains no “Interpreters jurat”. The applicant’s explanation that his agent/solicitor prepared all documents submitted to the Court leads to the situation that without any explanation from that person, what is asserted in the affidavit of 6 December 2014 does not assist the applicants in revealing jurisdictional error on the part of the Tribunal.

21. For the sake of completeness, I also note that I cannot see error in the Tribunal’s approach to the consideration of the application following the Full Court’s judgment in SZGIZ. The Tribunal’s explanation of how it should approach this “second” application, including how it should approach the second applicant’s inclusion in the application, is without legal error (see [6] at SCB page 3 of 13 to [9] at SCB page 4 of 13 and [34] SCB page 11 of 13).

Conclusion

1. No jurisdictional error is revealed in the grounds of the application to the Court. The application should be dismissed. I will make an order accordingly.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 21 August 2015