WZAVG v Minister for Immigration

[2015] FCCA 2083

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAVG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2083

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal decision – protection visa application – Chinese citizen – eye injury – availability of medical treatment – whether well-founded fear of persecution – whether real risk of significant harm – whether impermissible merits review – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 91R(2), 476, 477

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

Applicant: WZAVG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 407 of 2014

Judgment of: Judge Antoni Lucev

Hearing dates: 28 May and 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Perth

Delivered on: 14 August 2015

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr P Corbould

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 407 of 2014

WZAVG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding commenced on 17 December 2014 by the applicant filing an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 13 November 2014, is at Court Book (“CB”) 149-159. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), to refuse the applicant’s Protection (Class XA) visa (“Protection Visa”) application. The Delegate’s Decision, made on 21 January 2014, is at CB 88-95.

Background to the Judicial Review Application

1. The background to the Judicial Review Application is as follows:

   a)the applicant is a citizen of the People’s Republic of China (“PRC”) who was born on 20 November 1977: CB 63;

   b)the applicant first entered Australia on a student visa on 31 August 2010 (which expired on 12 March 2011: CB 5) and has resided in Australia since entry: CB 71 at [11];

   c)on or about 30 August 2011 the applicant suffered an injury to his eye in a workplace accident while an unlawful non-citizen working illegally as a gyprocker in the construction industry: CB 16;

   d)on 15 June 2012 the applicant applied to the former Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (“Department”) for a Protection Visa: CB 84 and 150;

   e)on behalf of the applicant Forms 866B and 866C applying for a Protection Visa were lodged with the Department by Andrew Lee Lawyers on 29 June 2012: CB 20-45;

   f)the applicant was interviewed by the Delegate on 1 April 2014 and on 11 April 2014 the Delegate refused to grant a Protection Visa to the applicant: CB 82 and 88-95;

   g)on 15 May 2014 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 118-119;

   h)the applicant was represented in the review proceedings before the Tribunal by a registered migration agent, Mr Lanshan Gao of Aubridge Group Pty Ltd: CB 118-119;

   i)the applicant attended a Tribunal hearing on 30 September 2014 when he gave evidence and presented arguments: CB 142-144;

   j)on 13 November 2014 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 149;

   k)the applicant was advised of the Tribunal Decision by letter dated 17 November 2014: CB 161; and

   l)on 17 December 2014 the applicant applied to this Court for judicial review of the Tribunal Decision.

Tribunal Decision

1. In the Tribunal Decision the Tribunal found that:

   a)the applicant’s claims for protection were based on:

   i)his family’s political affiliation with the former Chinese Kuo Ming Tang party (“KMT”): CB 153 at [24];

   ii)his practice of Falun Gong: CB 153 at [25]-[26];

   iii)his need for eye surgery and the discrimination he would face as a disabled person if he returned to the PRC and lost the vision in his eye: CB 152-153 at [21]-[23] and CB 154 at [30]; and

   iv)community disapproval of his separation from his wife and return to the PRC without her: CB 154 at [30];

   b)the applicant was a particularly unreliable witness who had fabricated claims for protection based on his grandfather’s past role as a high ranking official with the KMT and his claim to be a Falun Gong practitioner: CB 156 at [37] and 157 at [42] and [43], and that his credibility was further affected by the delay of almost two years between arriving in Australia and submitting a claim for protection, his misrepresentation to the Department concerning his willingness to leave Australia when he applied for a bridging visa, and his evasiveness when questioned about working in Australia without permission to do so: CB 156 at [37];

   c)the applicant had sustained an eye injury in Australia, but did not accept that he would not be able to receive proper and appropriate treatment for his eye injury in China: CB 152 at [44];

   d)the applicant would not be denied treatment for his eye injury on Convention grounds, and that it was satisfied that the applicant would be able to obtain the funds in the PRC to pay for treatment of his eye injury, and subsequently pay it back after getting a job in the PRC: CB 157 at [44]; and

   e)although there could be some disapproval of the applicant’s separation from his wife and his return to the PRC without her, it was not satisfied that there was a real chance that he would face “serious harm” as that term is defined in s.91R(2) of the Migration Act: CB 157-158 at [45].

2. The Tribunal concluded that, having regard to all of the evidence, the applicant did not have a well-founded fear of persecution on any Convention ground should he return to the PRC now or in the reasonably foreseeable future: CB 158 at [46].

3. In its assessment of the applicant’s claims under the complementary protection provisions of the Migration Act, the Tribunal:

   a)did not accept that the applicant faced a real risk of significant harm on the basis of his claim that his grandfather was a high ranking official with the KMT or his claim to be a Falun Gong practitioner;

   b)considered that the applicant would be able to access treatment for his eye injury in the PRC but that, if he did in fact lose the vision in his eye, he may suffer some discrimination which would not amount to significant harm; and

   c)was satisfied that there was not a real risk that the applicant would face significant harm at the hands of his family members or anyone else as a result of their disapproval of his separation from his wife and return to PRC without her: CB 158 at [48].

4. Having concluded that the applicant did not meet the refugee criterion in s.36(2)(a) of the Migration Act, and did not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act, the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 158 at [51] and CB 159 at [53].

The Judicial Review Application

1. The applicant’s Judicial Review Application filed on 17 December 2014 contains a single ground of review, as follows:

   The Tribunal failed to give sufficient consideration to my claims that I will in fact lose the vision in my eye if I return to China. Chinese Government does not provide medical assistance to people who can not afford the expensive medical cost due to poverty. I will be unable to seek treatment to recover my eye sight, and I will experience serious hardship and discrimination. The Tribunal failed to assess my claims under s. 36(2)(a) of the Migration Act.

2. The applicant also applied for an extension of time under s.477 of the Migration Act, but no extension is required as the Judicial Review Application was filed within time.

3. The applicant filed an affidavit, affirmed on 17 December 2014 (“Applicant’s Affidavit”) with the Judicial Review Application. The Applicant’s Affidavit set out the chronological history of the matter to the time of the Tribunal Decision in three short paragraphs. The first sentence of the fourth paragraph was “I do not agree with the Tribunal’s decision.” The remainder of the paragraph was in exactly the same terms as the ground of review set out above. The fifth paragraph of the Applicant’s Affidavit says “I request that the Federal Circuit Court review my case so that I can regularize my immigration status.”

4. On 18 March 2015 a Registrar of the Court made orders for the applicant to file and serve any amended Judicial Review Application and further affidavits by 6 May 2015 and an outline of submissions not less than 14 days before the hearing, and listed the matter for hearing on 28 May 2015.

5. When the matter came on for hearing on 28 May 2015 the applicant had not filed any amended Judicial Review Application, further affidavits or an outline of submissions. At the hearing on 28 May 2015 the applicant asserted that various documents had not been received by him, and it was evident that there was some confusion with respect to his address for service which may have resulted in his not receiving appropriate documents until shortly before the 28 May 2015 hearing. That might have then accounted for the applicant’s failure to file any amended Judicial Review Application, further affidavits or an outline of submissions. As a consequence, the Court made the following orders:

   1.The applicant file and serve an outline of submissions by 18 June 2015.

   2.The first respondent any further outline of submissions by 2 July 2015.

   3.The hearing be matter be adjourned to 2.15pm on 28 July 2015.

   4.Costs of today be reserved.

6. The applicant submitted at hearing on 28 July 2015 that he had caused a friend (who he did not name) to forward by email to the “Federal Court” submissions which the applicant personally prepared, but a copy of which he had not brought to Court. The Court asked the applicant whether he recalled what he had put in his submissions and he said as follows:

   So the message I emailed to the Federal Court was about that…because in China, the medical insurance system was very poor, so if I return, I will not be able to continue my treatment and so, in that case, I will not be able to have treatment if I return and I will submit a medical report to the court but, so far, I haven’t actually received the medical report.

   Transcript 28 July 2015, page 3.

7. The applicant confirmed that there was nothing else in the submissions and that he did not wish to put any further submissions to the Court: Transcript 28 July 2015, page 3.

8. The Minister made the following submissions:

   a)that the Tribunal considered the applicant’s claim with respect to his eye injury, and that what was now sought by the applicant was impermissible merits review; and

   b)that the Tribunal did not expressly make findings with respect to the applicant’s claim of discrimination as a disabled person when addressing the applicant’s claims based on the Convention, but that it did not need to do so because no express claim was made, and it otherwise dealt with the matter in terms which indicated that it did not consider that the applicant would be discriminated against on Convention grounds on the basis of his eye injury if he were to return to China.

9. In reply the applicant made further merit submissions in relation to his eye injury, and the alleged insufficiency of the treatment and medical assistance that might be provided to him in China, and assertions about claims to be made in Australia against a lawyer who “failed to do things properly” in an injury or workers’ compensation claim sought to be brought by the applicant, the latter of which self-evidently cannot found a claim of persecution if the applicant were to return to China: Transcript 28 July 2015, page 6.

10. The Court notes that the claims found by the Tribunal to be fabricated, and the claim concerning the applicant’s wife, were not raised by, or in the hearing of, the Judicial Review Application.

Consideration

1. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:

   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 [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.

2. The Tribunal expressly considered the applicant’s claim that if he returned to the PRC without having surgery, he would lose the vision in his eye and face discrimination as a disabled person. The Tribunal did not accept that:

   a)the applicant would not be able to receive proper and appropriate treatment for his eye injury in the PRC; or

   b)treatment would be denied to the applicant on Convention grounds: CB 157 at [44].

3. With respect to the matter raised by the Minister as to the Tribunal not having made any express finding with respect to the claim of discrimination as a disabled person when addressing the applicant’s claims based on the Convention, the Court considers that the Tribunal made its position on that matter quite clear. Under the heading “Assessment of Refugee protection claims” the Tribunal noted the claim that the applicant would be discriminated against as a disabled person in the PRC if he were to return without having surgery in Australia, but did not accept that the applicant would not receive proper and appropriate treatment in China, and, significantly, did not accept that such treatment would be denied to him for one or more of the Convention grounds. That is to say, he would not be discriminated against in relation to his treatment on the basis that he was a disabled person. Further, it is implicit in the Tribunal’s finding that the applicant would be able to obtain funds in the PRC to pay for treatment and to subsequently pay it back after getting a job in the PRC, that he would not be discriminated against on Convention grounds by reason of any disability: see CB 157 at [44]. The Tribunal went on to deal with the claim thus made, together with the other claims made by the applicant, and make a finding that the applicant did not have a well-founded fear of persecution on any Convention ground now or in the reasonably foreseeable future, and therefore did not satisfy the requirements for the grant of the Protection Visa.

4. Reading the Tribunal Decision as a whole, and with an appreciation of the full context of what the Tribunal said, and without intricate over-analysis: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [35] per Gummow ACJ and Kiefel J and footnote 73 per Heydon J, the Court is of the view that the Tribunal dealt with the applicant’s claim of discrimination as a disabled person based on Convention grounds. It arrived at a factual finding which was entirely consistent with the evidence and materials that were before the Tribunal. The Tribunal was also satisfied that the applicant would be able to obtain the funds in the PRC to pay for treatment for his eye injury and subsequently pay it back after getting a job in the PRC: at CB 157 at [44].

5. In its assessment of the applicant's claims under the complementary protection provisions of the Migration Act, the Tribunal also found that if the applicant does in fact lose the vision in his eye, he may suffer some discrimination, but that that discrimination would not amount to “significant harm” as that term is defined in s.36(2A) of the Migration Act: CB 158 at [48].

6. The applicant’s contention that the Tribunal failed to give “sufficient” consideration to his claims concerning his eye injury is itself tacit acknowledgement that the Tribunal did in fact consider the applicant’s claims. Although the applicant may disagree with the Tribunal’s findings, the Tribunal plainly gave consideration to the applicant’s claims in relation to his eye injury.

7. The single ground of review does no more than invite the Court to conduct a review of the merits of the Tribunal Decision. That this is so is confirmed by the Applicant’s Affidavit whereby he expresses his disagreement with the Tribunal Decision: Applicant’s Affidavit at [4], and in which he seeks to have the Court “regularize” the applicant’s “immigration status”: Applicant’s Affidavit at [5].

8. The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and as such, is not reviewable by this Court if, as here, the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.

9. No jurisdictional error is identified or established by the applicant, and it follows that there is no jurisdictional error in the Tribunal Decision.

Conclusions and orders

1. The Court has concluded that the Tribunal Decision is not attended by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

2. The Court will hear the parties as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 14 August 2015