Federal Court Upholds Denial of Protection Visa Appeal

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

AWZ17 v Minister for Immigration and Border Protection [2018] FCA 651 Appeal from: AWZ17 v Minister for Immigration & Anor [2017] FCCA 2572

File number: NSD 1970 of 2017

Judge: [NAME] of judgment: 8 May 2018

Legislation: Migration Act 1958 (Cth), ss 36, 438

Cases cited: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Citizenship v [NAME] [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 [NAME] v Minister for Immigration and Border Protection [2018] FCA 334

Date of hearing: 8 May 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 19

Counsel for the Appellant: [redacted]

[NAME]: [RESPONDENT]

[NAME]: [RESPONDENT] 1970 of 2017

BETWEEN: [APPELLANT]17 Appellant

AND: [APPELLANT] FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [NAME] Respondent

JUDGE: [NAME] OF ORDER: 8 MAY 2018

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

[NAME]: 1 This is an appeal from orders of the Federal Circuit Court dismissing an application for judicial review brought by the appellant against a decision of the Administrative Appeals Tribunal which had affirmed a decision of a delegate of the Minister not to grant a Protection Visa. The appellant is a citizen of the [NAME]. His claims for protection were described by the Tribunal in its reasons at [13] to [32], being a statement of his written claims and the matters raised by him at his Protection Visa interview. A summary of his claims by reference to those matters is as follows. 2 He says he has four children, two with his first wife and two with [NAME]. The having of two children with each wife was each a breach of China's one child policy and he was required to pay a fine. He claimed that he could not pay the whole amount and his wife was forcibly sterilised. The appellant claims that he made appeals to various levels of government after which he was told to stop those complaints. When he continued to appeal to the government, he says he was taken away and detained for several days during which time he says he was threatened with the administration of a drug that would make him mute and he was required to sign a guarantee promising not to appeal again. 3 After his release, the appellant claims that he sent a letter about what had happened to a relevant government department in Beijing. He claims that officers from the [NAME] subsequently went to his home and he was told that he had illegally overstepped the appeals process and could be imprisoned. Upon this threat, he says he went to a friend's house who helped him travel to Australia. The appellant says that he fears he will be arrested and harmed upon his return and at the Tribunal hearing he raised a new claim that the authorities will assume that he has applied for protection in Australia and will also harm him on this basis. 4 The above were the claims of the appellant. 5 The Tribunal, from [62] and following, made findings and various comments and observations as to the appellant's account. It first of all noted a lack of supporting documentation. The Tribunal found it unusual that the appellant was unable to provide evidence of communications between himself and his family in China and found it unusual that he only had a couple of photographs that he claimed to be of his children. This lack of personal documentation was discussed in [63]. I note that the Tribunal indicated that the applicant's explanation at the hearing for the reasons why he had been unable to produce such further documentary evidence was unconvincing. 6 These matters were dealt with in the decision record of the Tribunal at [40] and [41] as follows:

40. The Tribunal asked the applicant whether he had any photographs of his children on his mobile phone. After looking in his phone for some time, the applicant showed the Tribunal a photograph of three children who appeared to be three of the same children in the photograph shown to the Department at interview. The Tribunal commented that the children appeared to be around the same age as they were in the photograph that had been submitted to the Department and asked the applicant whether he had any more recent photographs. The applicant told Tribunal that the photo in question had been brought to him by a friend who had returned to China for a visit and that he had received no other photographs of his children since his arrival in Australia. The Tribunal asked the applicant whether he had any SMS messages on his phone from his family. The applicant said he did not and that if he missed his family he just called them.

41. The Tribunal put to the applicant that it seemed highly unusual that two years after his arrival in Australia, the applicant had no evidence of any communications with his wife or four children. The Tribunal put to the applicant that it was concerned that he may not have provided truthful evidence about his family composition. The applicant responded that the [NAME] head in his [NAME] was like a spy and so it was not possible for his family to send evidence. 7 I raise that matter now at this point in the reasons because today, from the [NAME], the appellant said as to the lack of documentation that everything at home has been blocked by the authorities. I note this in comparison to the content of [40] and [41] of the Tribunal's reasons. 8 Secondly, the Tribunal identified certain inconsistencies between the appellant's written statement and evidence before the Tribunal. These matters were inconsistency of evidence regarding the number of times that he had appealed to the [NAME], the outcome of those appeals and what occurred during his period of detention. 9 These matters were dealt with at [64] to [66] of the Tribunal's reasons as follows:

64. The applicant's oral evidence to the Tribunal was inconsistent with the claims set out in his written statement in relation to several matters of central significance in the context of his claims. The applicant's evidence to the Tribunal with regard to the number of times he appealed to the [NAME] and the outcome of his appeals was inconsistent with his written statement. The applicant told Tribunal that he had appealed to the [NAME] more than 10 times and had sometimes gone there twice in a month. The applicant told the Tribunal that the outcome of his appeals to the [NAME] was that the [NAME] had asked the [NAME] to arrange for his wife to undergo treatment in a better hospital. In contrast, the applicant's written statement indicated that he had visited the [NAME] on three occasions and had been detained on the third occasion. The applicant's written evidence was that it was the [NAME] who had arranged for his wife to undergo treatment at the [COMPANY]. The applicant's attempts explain these inconsistencies were unconvincing and were in themselves inconsistent with his earlier evidence.

65. The applicant's description of the events that transpired after his arrest at the Tribunal hearing was also different to his written evidence. The applicant told the Tribunal that he had refused to sign a written promise not to appeal again and had been beaten as a consequence. In contrast, the applicant's written statement indicated that he had apologised after being threatened about the consequences if he did not but was still sent for re-education because his apology was not deemed sincere enough. The applicant's written statement did not mention that the applicant had been beaten up. The Tribunal is not satisfied that the applicant's claim, that the friend who assisted him with the statement had told him to keep his statement simple, adequately explains the inconsistency.

66. There was also a difference in the applicant's evidence with regard to the consequences of his appeal to the government in Beijing. The applicant told the Tribunal initially that officers from the [NAME] came and told him that his appeal was improper told that he would be arrested if he did it again. The applicant then added that he was asked to report to the town police station every month. The Tribunal noted that the applicant's written statement had not made any mention of the applicant being required to report to police every month. The applicant again sought to blame the omission on the friend who had helped him with the translation. The Tribunal finds this explanation unconvincing given the weight the applicant attached to his failure to comply with reporting requirements when talking about his fears of returning to China. The failure to make this significant claim in the written statement casts doubt over the claim's credibility. 10 The third matter that the Tribunal commented upon was the appellant's written statement containing significant omissions regarding claims he had subsequently made to the Tribunal. While the appellant claimed before the Tribunal to have been beaten when detained and required to report to the police every month, no mention was made of this in the written statement. This inconsistency by omission is referred to in [65] and [66] of the Tribunal's reasons which are set out above. The Tribunal did not accept that such important information would have been omitted from his statement merely from encouragement to keep his statement simple, such encouragement coming from a friend. 11 The fourth matter that the Tribunal commented upon was that the appellant was able to depart China without issue under his own name and applied for a new passport when he had no immediate need to travel. This was said not to accord with his claim to face arrest and persecution upon return. This matter was dealt with in [67] of the Tribunal's reasons. The Tribunal then, at [68], expressed the cumulative effect of these features of the appellant's evidence as follows:

68. The cumulative effect of these features in the applicant's evidence is that the Tribunal is not satisfied that any of the applicant's claims are true. Specifically, the Tribunal is not satisfied that the applicant was married in China, that he had four children or that he was fined for breaching China's family planning regulations. The Tribunal is not satisfied that the applicant had a wife who was forced to undergo a sterilisation procedure which led to her being paralysed. The Tribunal is not satisfied that the applicant petitioned the [NAME] or made a written appeal to the government in Beijing complaining about his wife's treatment. The Tribunal is not satisfied that the applicant was detained after appealing to the [NAME], beaten or forced to undergo re-education. The Tribunal is not satisfied that the applicant was threatened that he would be re-arrested if he appealed again. The Tribunal is not satisfied that the applicant was required to report to police on a monthly basis and failed to do so. The Tribunal is not satisfied that the applicant departed China owing to any fear for his safety or well-being. The Tribunal is not satisfied that the applicant was of any interest to the [NAME] at the time of his departure or at the time of this decision. 12 It is important to recognise that the requirement of the statute is that on review, the Tribunal, in the place of the Minister, be satisfied of various matters. The cumulative effect of the features of the appellant's evidence meant that the Tribunal was not able to reach a state of satisfaction about the relevant matters that would found the Protection Visa. 13 The Tribunal also dealt with the sur place claim, that is, the claim raised at the Tribunal that the making of an application would, or may be, a ground for protection. The Tribunal had no information, either from the appellant or otherwise, that the [NAME] had any interest in persons who had applied for, but failed, in their application for protection in Australia. There was no basis upon which such a sur place claim could be founded. 14 These conclusions meant that the Tribunal was not satisfied that the appellant met the criteria based on the Refugee Convention and found in s 36(2)(a) of the Migration Act 1958 (Cth). The Tribunal was likewise, for the same reasons, not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the complementary protection criteria in s 36(2)(aa). 15 The reasons of the primary judge in the Federal Circuit Court were such as to indicate an absence of any jurisdictional error or legal error by the Tribunal. The grounds of appeal to this Court are as follows:

1. RRT and Federal Circuit Court failed to Consider my explanation and supporting documents to support my appeal which I believe it is a legal error.

2. I am a Chinese citizen and I will be facing persecution by Chinese government due to my violation of family planning law.

3. I cannot go back to China since I am very scared to be sentenced and discriminated.

4. AAT member and the Federal court did not well consider my fears and persecution if return to my home country. 16 I need not deal with the grounds individually. Together and individually, they identify a complaint as to the result and as to the material not having been properly considered. At the outset, let me emphasise that the fact that the complaints of the appellant may be as to fact finding does not protect the decision from examination for jurisdictional error. It may be, in appropriate cases, appropriate to examine the factual analysis with some care to see whether the Tribunal has engaged in a lawful review of the facts. The High Court has made it clear in cases such as Minister for Immigration and Citizenship v [NAME] [2013] HCA 18; 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, as implemented in this Court in cases such as Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, that however expressed – and there are many ways of expressing it, as discussed in Stretton – an outcome may be so lacking in rational foundation or an attitude to credit and fact finding may display such error or misconception as to amount to a conclusion of legal unreasonableness and, thus, jurisdictional error. That said, it should always be recognised, in particular by persons in the position of the appellant, that it is not this Court's nor the Circuit Court's task to re-find the facts as a fact finder. It is the legality of the decision of the Tribunal that is in issue. 17 I have examined that reasons of the Tribunal with some care as well as considering the reasons of the primary judge. He was not able and I, independently and separately, am not able to identify any aspect of the reasoning of the Tribunal which reflects either a failure to consider the material put before the Tribunal or to deal with it in a rational and logical way. It is important to understand that it is the lack of satisfaction of the Tribunal in the claims put forward that is the matter before the Court. 18 The issue of a certificate under s 438 of the Migration Act must be dealt with. There was a certificate in the material before the Tribunal that was not disclosed to the appellant. The Minister accepts that the certificate was invalid. It was a certificate relating to documents as to the identity of the appellant. The identity of the appellant was never an issue and was not part of the underlying material that gave the Tribunal doubt as to the appellant's version of events. There have been a number of cases in the Court now as to these certificates and their non-disclosure. I am satisfied that there has been no procedural unfairness because there has been no loss of opportunity to advance any part of his case and on no view could the certificate be thought to have prejudiced his interests and could not, and did not even, possibly undermine his prospects of a favourable decision by the Tribunal. I refer, in these regards, to Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 and [NAME] v Minister for Immigration and Border Protection [2018] FCA 334. 19 For these reasons, no error in the primary judge's reasons has been demonstrated and, importantly for the appellant, no error has been demonstrated in the reasons of the Tribunal of a character which would entitle him to an order setting aside the decision. In those circumstances, the orders of the court are that the appeal be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief [NAME].

Associate: Dated: 9 May 2018