SZXTU v Minister for Immigration

[2015] FCCA 2080

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZXTU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2080

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal breached its procedural fairness obligations – whether the Tribunal failed to have proper regard to the applicants’ evidence – whether the Tribunal failed to “carefully” consider the applicants’ claims as against complementary protection criterion – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 420, 425, 426A, 476

Migration Regulations1994 (Cth), Schedule 2

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125

First Applicant:

Second Applicant

SZXTU

SZXTV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 466 of 2014

Judgment of: Judge Nicholls

Hearing date: 24 July 2015

Date of Last Submission: 24 July 2015

Delivered at: Sydney

Delivered on: 24 July 2015

REPRESENTATION

First Applicant: In person

Second Applicant: In person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

ORDERS

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

2. The application made on 28 February 2014 is dismissed.

3. The applicants pay the first respondent’s costs set in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 466 of 2014

SZXTU

First Applicant

SZXTV
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 February 2014 seeking review of the decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal)(“the Tribunal”) made on 30 January 2014 which affirmed the decision of the Minister’s delegate to refuse the applicants Protection (Class XA) visas.

Background

1. Before the Court in evidence is the bundle of relevant documents filed by the Minister (“the Court Book” - “CB”).

2. The applicants are wife and husband and are citizens of the People’s Republic of China (“China”). They arrived in Australia on 23 April 2009 having been granted tourist visas valid until 2 May 2009 (CB 34 to CB 35 and CB 66).

3. The applicants remained unlawfully in Australia until 23 January 2012 when the applicant lodged a protection visa application, which identified her husband as a member of her family unit (CB 1 to CB 32). The applicants were assisted by a person who was then a registered migration agent. 

4. Included with the application was a “personal statement” made by the applicant (CB 38 to CB 40). She claimed that she and her husband had developed and owned a rice wine business in Jiangsu Province, China (CB 38 to CB 40).  The applicant asserted that due to “the government’s persecution” the applicants “lost the winery” and were forced “to escape from China and come to Australia” (CB 38).

5. The applicant claimed that due to the success of the business, the “town government wanted to merge our factory to be Town owned enterprise” (CB 38). The applicant described the conduct of town officials who, on the premise of facilitating a takeover of the business, accused and fined, the applicant “RMB $60,000” for tax evasion.  The applicant claimed that following the fine “the secretary … and the head of town … came up with the new idea and told us they wanted to redesign the land and we had to relocate our winery”, and on 4 June 2008 “the government gave… notice to stop our winery within a month or the government would order relevant departments to take over winery by force” (CB 38).

6. The applicant claimed that in response to the decision she sought to appeal to the Nantong City People’s government, and was subsequently accused of “spreading propaganda against the local government” and threated with imprisonment (CB 39). She claimed that on 23 July 2008 the applicants were detained and interrogated by local police and her husband beaten. The town government took control of the applicants’ business without payment of compensation. The applicants sought appeal.

7. The applicant also claims that both she, and her husband, had actively voiced their opposition to the government and claimed to have signed, in December 2008, the “Charter 08”, an online petition regarding human rights and democratic reforms in China. The applicant claimed that the local authorities were aware of their involvement and on 25 December 2008, while again seeking appeal, the applicants were informed by a neighbour that the police had sealed off their house. Subsequently, the applicants were fearful of being detained and made arrangements to depart China. Following arrival in Australia on 23 April 2009, the applicant contacted her parents who informed her that there were criminal charges against the applicant and her husband and they were now wanted by the authorities.

8. The applicant further asserts that until the application of 23 January 2012, she was unaware of the existence of protection visas, hence the delay in application.

9. The applicant attended an interview on 10 May 2012 (CB 69). On 23 November 2012, the delegate refused to grant the applicants protection visas on the basis that the applicant was not a person to whom Australia has protection obligations pursuant to s.36 of the Act and cl.866.221 of Schedule 2 of the Migration Regulations1994 (Cth) (“the Regulations”) (CB 61 to CB 80).

10. The applicants applied to the Tribunal for review of the delegate’s decision on 24 December 2012 (CB 81 to CB 85). They were assisted by a registered migration agent (CB 93).

The Tribunal

1. The applicant attended a hearing before the Tribunal on 31 October 2013 (CB 99). I note that the Tribunal’s letter of 26 August 2013 invited both applicants to attend, however, on the day of the hearing only the applicant attended (CB 94 to CB 96).

2. The Tribunal affirmed the delegate’s decision on 30 January 2014 not to grant the applicants a protection visa (CB 115).

3. The Tribunal noted in its decision record that it “did not find the applicant to be a credible witness” ([14] at CB 121). In “considering the various internal inconsistencies”, along with the “evasive, implausible and changing evidence”, the Tribunal identified ten primary focus points of the applicant’s evidence ([15] at CB 121, [19] at CB 122, [22] at CB 123, [25] at CB 123, [27] at CB 123, [31] at CB 125, [32] at CB 125, [34] at CB 126, [36] at CB 127 and [37] at CB 127 and CB 130):

   “[15] Firstly, the applicant gave evidence about the guarantor of the loan (used to build the factory) which was inconsistent with the loan documents; she then changed her evidence; and then provided implausible evidence about the guarantor…

   [19] Secondly, the Tribunal was concerned about the applicant’s omission to mention at hearing that she was in hiding, when telling the Tribunal where she lived…

   [22] Thirdly, the Tribunal was concerned about the applicant’s differing evidence concerning whether there are outstanding charges against her…

   [25] Fourthly, the Tribunal was concerned about the applicant’s differing evidence between her statement and the Notice to Halt Business Production that she produced to the Department…

   [27] Fifthly, the Tribunal was concerned about the applicant’s evidence concerning her name being placed on the Charter 08 blacklist and that she was subject to police interrogation on this basis, and also in light of the available country information…

   [31] Sixthly, the Tribunal was concerned about the applicant’s limited knowledge of Charter 08…

   [32] Seventhly, the Tribunal was concerned with the applicant’s claim that despite being on a blacklist, she was able to both obtain a passport, and to leave China illegally…

   [34] Eighthly, the Tribunal was concerned that the applicant made a claim at hearing, that she had not made in her statement, about additional police visits…

   [36] Ninthly, the Tribunal was also concerned that since the Applicant has come to Australia she has taken no steps to remedy the injustice and the significant loss of their investments…

   [37] Tenthly, the Tribunal was also concerned about the applicant’s delay in lodging her protection visa application. According to the statement, the applicants left with a tour group for their own safety; according to the stamps in their passports, the applicants came to Australia on 23 April 2009; yet the applicant said she signed her protection visa application only at the end of January 2012, almost three years later…”

4. The Tribunal, citing the ten points above, made an adverse credibility finding against the applicant ([38] at CB 128).

5. Supplementary documentation was also provided by the applicant, in support of her claim, including “a land lease contract, a taxation administrative penalty decision letter, a certificate for health and hygiene, a Bank of China loan guarantee contract, Hainan Country Hospital discharge report … and Notice to Halt Business Production, Enterprise Legal Person Business License” ([39] at CB 128).

6. The Tribunal considered the documentary evidence and noted that it was “generally consistent” with the applicant’s written claims ([40] at CB 128). The Tribunal did, however, put to the applicant the “significant concern” it had about the genuine nature of the “Bank of China” loan documentation and the “Notice of Halt Business Production”, noting the conflicting evidence given by the applicant at the hearing ([40] at CB 128). Following consideration of the available country information, indicating that fraudulent documents are widely available in China, and in light of the adverse credibility findings, the Tribunal did “not accept that the documentation produced by the applicant… [was] genuine” ([40] at CB 128).

7. On the basis of the adverse credibility finding, the Tribunal rejected the applicant’s claims that ([43] at CB 129):

   “…she and her husband owned a business which was adversely affected by government and police corruption or actions including being served with notices or forced to pay fines; that they petitioned any governmental department in relation to the business; that they supported and have supported Western-style democracy and values; that they held any political views adverse to any Chinese authorities (and which they discussed with others); that they signed Charter 08 and suffer consequences for this reason; that they have been imputed with an anti-government opinion by anyone in China; that the authorities have been interested in their whereabouts since they have been in Australia, or searched for them or threatened them…”

   Furthermore, the Tribunal did “not accept that the applicant will hold or promote anti-government or pro-human rights views in the future” ([43] at CB 129).

8. Ultimately, the Tribunal was not satisfied that the applicant had a “well-founded fear of persecution by the authorities in China or other groups or persons should she return to China now or in the reasonably foreseeable future” ([46] at CB 129). The applicant was therefore not a person in respect of whom Australia had protection obligations under the Refugees Convention and did not satisfy s.36(2)(a) of the Act.

9. The Tribunal also considered the applicants’ claims against the alternative criterion at s.36(2)(aa) of the Act. The Tribunal was not satisfied that “there [was] a real risk that the applicant [would] be harmed in China” ([47] at CB 131) and therefore was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.

10. The second applicant’s application was, in the circumstances, dependent upon the applicant’s claims, given that the protection visa application of 23 January 2012 identified the second applicant as a member of the applicant’s family unit.

11. The Tribunal noted that the applicant’s husband had been invited to attend the hearing, and had indicated he would do so ([50] at CB 130). At the hearing the applicant provided a medical certificate for her husband which stated he was unfit for “interview” “from 31 October 2013 to 31 October 2013 inclusive ([51] at CB 130). I note that that date was the exact date of the hearing before the Tribunal. The Tribunal considered this document and found that there was no disclosure of any reasons, or any diagnosis, to support a reason for the mere assertion that the applicant was unfit to attend ([51] at CB 130).  The Tribunal also noted that no request for an adjournment had been made by, or on behalf or, the second applicant ([52] at CB 130).

12. At the hearing, the Tribunal asked the applicant why her husband had not advanced a claim as a “primary” applicant. That is, advanced claims to fear harm in his own right. The applicant asserted that, at the time of the application they were “not aware of how the forms worked” ([49] at CB 130). The Tribunal noted that while the applicants were represented, such representation was not for the initial application process, and that when the migration agent was deregistered prior to the hearing, the agent continued to assist as a “friend” of the applicants. Nonetheless, the Tribunal considered the second applicant’s claims to protection as they related to, and were advanced by, the applicant.

13. The Tribunal considered the documentary evidence provided by the applicant concerning the second applicant at the hearing, which showed that ([51] at CB 130):

    “…the second applicant had been in a car accident in July 2013; he was examined on 17 August 2013 by his GP who diagnosed that he was suffering from PTSD, poor memory and concentration and persistent headache and trauma to the head... from 5 September 2013 he was fit for alternative duties (home office duties and no driving); and as at 5 September 2013 it was estimated that from 30 October 2013 he would be fit for home duties and lifting no more than five kg...”

14. The Tribunal considered that the second applicant had “been provided with an opportunity to present arguments and give evidence in accordance with s.425 of the Act” ([53] at CB 131). In particular it noted that no submissions were received from the applicant after the hearing on 31 October 2013 ([52] at CB 131). Ultimately the Tribunal was not satisfied that the second applicant had a well-founded fear of persecution in China or that there were substantial grounds for believing that there was a real risk that he would suffer significant harm if returned to China.

The Grounds of the Application

1. The application of 28 February 2014 contained the following three grounds of view:

   “1. The Refugee Review Tribunal (the Tribunal) did not review my case with care and justice. Although the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail is as necessary to enable the examiner to establish the relevant facts, the concept of onus of proof is not appropriate to administrative inquiries and decision-making. In this case, I gave evidence about the guarantor of the loan (used to build the factory), and explained the reason of inconsistent with the loan document. This was ignored by the Tribunal.

   2. The Tribunal unfairly refused my evidence about my political activities. The Tribunal should have examined my political opinion with fairness. My name was placed on the Charter 08 blacklist and that I was subject to police interrogation on this basis. I had been placed on the blacklist by authorities in 2008 for having signed the Charter online. Also I evidenced how I knew my names was on the blacklist because the police came to interrogate me about it at that time.

   3. Tribunal did not carefully consider the alternative criterion in s.36(2)(aa). There is a real chance of we being harmed if we were to return to China. We were afraid of revenge from the local authorities in China. I provided the evidence that the police had come to my parents and asked for us. We were told to return to China and report to the police voluntarily as we had criminal charges against us. The evidence showed if we return back to China within 10 years, the police would arrest us and wouldn’t release us for 10 years. The police and the village government will persecute us if we return back to China.”

Consideration

1. Before the Court today, the applicant appeared in person.  She was assisted by an interpreter in the Mandarin language.  While the second applicant was said to be present in the precincts of the Court, the applicant confirmed that she would speak on his behalf. 

2. The applicant’s submission to the Court today was that she felt that there were some unreasonable aspects to the department’s rejection of her claims. In context, I understood this to be a reference to the Tribunal. 

3. The applicant then proceeded to list a number of these matters which, to a large extent, mirrored the items on which the Tribunal had based its adverse conclusion in relation to her credibility. 

4. The applicant took issue with the Tribunal’s individual findings that were informative of its conclusion of the lack of credibility in her claims.  The applicant submitted that she could not understand why the Tribunal did not accept her explanations, and “reasons”, in relation to its concerns. 

5. As I sought to explain to the applicant, the Tribunal is not required to uncritically accept an applicant’s explanation, nor, indeed, any aspect of an applicant’s evidence. 

6. The issue relevant before the Court today is whether there is any legal error in what the Tribunal has done. It is trite to say that there is no legal error where the Tribunal’s findings, including its findings as to an applicant’s credibility, were reasonably open to it to make on the material that was before it, and for which it gave cogent reasons.

7. Before the Court today, the applicant, in effect, sought that the Court intervene and substitute its own findings of fact for those of the Tribunal.  This is a request for this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Nothing that the applicant said to the Court today reveals any legal error on the part of the Tribunal.

8. What is of immediate note, in relation to all three of the grounds of the application and the material before the Court, is that only the applicant advanced claims to fear harm before the Tribunal. The applicant made a written statement which was lodged with her application.  She attended an interview with the delegate, and at a hearing before the Tribunal. 

9. The second applicant made no written statement, did not attend the interview with the delegate, and did not attend the hearing before the Tribunal. In this latter regard, the Tribunal exercised its discretion, pursuant to s.426A of the Act, to proceed to a decision. The Tribunal’s decision to proceed in this fashion, in relation to the second applicant, was, in the circumstances presented to the Court, reasonable (see [21] – [23] above). The Tribunal gave an “intelligible justification” for the exercise of its discretion to proceed to a decision, without the second applicant having attended at the hearing (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280).

1. As set out above, the core reason that the Tribunal affirmed the delegate’s decision was its comprehensive finding in relation to the applicant’s credibility, which was the basis for its rejection of her factual assertions as to past harm, and to why she said she feared harm in the future. 

2. The Tribunal’s finding, and the antecedent findings which informed it, were all reasonably open to the Tribunal on what was before it, and no jurisdictional error arises from the grounds of the application in this regard (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

3. I now turn to paragraph one of the application. The words “did not review my case with care and justice” possibly seek to invoke s.420 of the Act, with some assertion that the Tribunal acted unjustly. However, as the Minister’s submissions correctly stated, this does not assist the applicants, for the reasons as explained by French CJ in Li (see at [12]). If what is said in paragraph one of the grounds was meant as some complaint that the applicants were denied procedural fairness, such a claim is not made out on what is presented to the Court.

4. Both applicants were invited to a hearing before the Tribunal pursuant to s.425 of the Act. The applicant attended and was given the opportunity to make her arguments and give her evidence. The Tribunal raised with the applicant the issues relevant to the review. In relation to the second applicant, what is set out above stands in answer.

5. The second element in paragraph one, is the assertion that the Tribunal ignored the applicant’s evidence concerning the claimed bank loan, and the guarantor for the bank loan, that was said to have been provided to them in China.  This is one of the matters that the applicant pressed before the Court today. 

6. Any plain reading of the Tribunal’s decision record, and I refer particularly to paragraphs [16] to [18] (at CB 121 to CB 122), reveals that the applicant’s complaint is not that the Tribunal ignored her evidence, but that the Tribunal did not accept her evidence, in this regard.  The relevant findings here were reasonably open to the Tribunal to make. This is another example of the applicant seeking impermissible merits review.  In all, paragraph one of the grounds is not made out. 

7. Paragraph two asserts that the Tribunal unfairly refused her evidence about her political activities, involving her claim to have signed the Charter ’08, which led to her being blacklisted by the Chinese authorities. 

8. It is clear that the Tribunal considered this claim ([27] to [31] at CB 123 to CB 125).  The Tribunal rejected the truthfulness of this claim based on the applicant’s own evidence to the Tribunal and country information that was available to it.  The Tribunal’s findings here were reasonably open to it to make, and no unfairness arises simply because the Tribunal did not believe the applicant.  The Tribunal gave comprehensive reasons for not doing so. Paragraph two of the grounds is not made out.

9. Paragraph three asserts that the Tribunal did not carefully consider the applicant’s claims as against the complementary protection criterion.  This again must be understood in the context of the claim being that, not that the Tribunal did not consider it, but that it did not “carefully” consider that criterion.

10. I note from the material before the Court that the Tribunal did give consideration to this criterion in relation to both applicants.  It found that neither applicant satisfied this criterion. 

11. In relation to the first applicant, the Tribunal relied on factual findings which it had set out earlier in its decision record. No legal error arises in circumstances where the Tribunal is entitled to rely on its earlier stated factual findings (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55] – [56] and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125).

12. The Tribunal proceeded in a similar fashion with the second applicant.  No legal error is apparent here. 

Conclusion

1. In all, none of the “grounds” of the application to the Court reveal jurisdictional error on the part of the Tribunal.  It is appropriate in that circumstance that the application to the Court be dismissed.

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

Associate: 

Date: 6 August 2015