FEDERAL COURT OF AUSTRALIA CAL16 v Minister for Immigration and Border Protection [2017] FCA 1630 Appeal from: CAL16 v Minister for Immigration [2017] FCCA 1866 File number: NSD 1214 of 2017 Judge: RARES J Date of judgment: 15 November 2017 Legislation: Migration Act 1958 (Cth) s 36 Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 CAL16 v Minister for Immigration [2017] FCCA 1866 Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 Date of hearing: 15 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 30 Counsel for the Appellants: The First Appellant appeared in person on behalf of both appellants Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS NSD 1214 of 2017 BETWEEN: CAL16 First Appellant CAN16 Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 15 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's 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) RARES J: 1 This is an appeal from the decision of the Federal Circuit Court to refuse the appellants, who are husband and wife, Constitutional writ relief from the decision of the Administrative Appeals Tribunal given on 8 July 2016 which affirmed the decision of the Minister's delegate not to grant the appellants protection visas: CAL16 v Minister for Immigration [2017] FCCA 1866. Background 2 The appellants are citizens of China. The only claims for protection arise from the circumstances of the husband, his wife's claims being those arising from being a member of his family. The husband arrived in Australia using a fraudulently obtained passport, endorsed with a visitor visa on 14 January 2007. He applied on 13 February 2007, for a protection visa on his own behalf and on behalf of his wife claiming to be entitled to protection as a refugee. That application failed before the Minister's then delegate and on 30 October 2007 in the then Refugee Review Tribunal. He applied to the then Federal Magistrates Court and this Court unsuccessfully for Constitutional writ relief. After his last appeal failed, he became an unlawful non-citizen in Australia from 12 September 2008. 3 On 17 December 2013, the husband lodged a further application for protection which also included his wife. 4 The husband and wife lived and worked in Fujian Province. They married in around 1988 and they have two sons, one born in 1989 and the other in 1991. The husband worked in nurseries and eventually commenced his own business. He claimed that, as a result of a Sichuan government enterprise (the debtor) failing to pay him a significant sum of money, he organised a large protest that came to the attention of the Chinese authorities, having previously unsuccessfully asked the debtor to pay the debt owed to him. He also claimed that he had asked other government agencies to assist him. Finally, he claimed that he had organised a sit-in protest in front of the debtor's offices. He claimed that he and others in the sit-in protest were detained for three weeks by the Public Security Bureau (PSB) for their involvement in an anti-government protest and disturbing the normal social order. He claimed that, after being released, he wrote to the central government in Beijing seeking that it investigate the debtor and PSB in the locale of the debtor in Sichuan. 5 He also claimed that he had asked the Chinese Government to establish a legal system to protect basic human rights of ordinary citizens. He claimed that he had made multiple copies of his letters and asked his staff to send them to both the Sichuan and Fujian provincial governments but that, unexpectedly, he became the target of the authorities of the Chinese Government and that the police came to his house and made frequent checks. 6 He claimed that in late December 2006, a person from the municipal government informed him that the PSB had decided to take immediate measures against him because he had been identified as an anti-government activist who held a large amount of information for anti-government propaganda. He claimed that, as a result, he had no choice but to flee China on a false passport. He claimed that after he had left China, he thought that the PSB would relax its persecution of his family and would spare his youngest son because the government was aware that he had gone abroad. 7 The husband claimed that the debtor had told his business partner that it had paid him (the husband), but because he had fled abroad, he must have taken the money with him and that the business partner should cease making demands on the debtor, because the husband had the money that was claimed to be owed. He claimed that his business partner asked the appellants' younger son to pay the money back, but he, being very young, had no money. He claimed that his former business partner did not believe the young boy. He also claimed the police had been to his house, threatening the younger son, saying that they knew the husband had fled abroad with the money and when he came back he should turn himself in to the police, and that the younger son had better be honest. He claimed that his elder son had been forced to flee to Australia and that he was worried about his younger son. 8 He claimed that he had become a Christian in Australia and that his younger son came here after escaping from the Chinese Government in February 2012. After the refusal of their claims to be refugees, he claimed that he and his wife had remained in Australia illegally because they feared return to China. The husband also claimed that the Chinese Government would have a further reason for persecuting him, because they would know he was a Christian and, therefore, neither he nor his family would be safe were they now to return. 9 The delegate interviewed the husband, having reviewed the findings by the 2007 Tribunal. Essentially, apart from the additional claim in respect of his conversion to Christianity, the husband's claim rehearsed much of what had been before the 2007 Tribunal and formed the basis of his failed claim for protection under the now s 36(2)(a) of the Migration Act 1958 (Cth). 10 The husband claimed before the delegate that he had been involved in the protest outside the Sichuan government agency at which up to 300 people had attended. The delegate found this claim implausible because, first, country information indicated that Chinese authorities strictly enforced restrictions on illegal assembly, secondly, 300 people would not risk their own safety by joining a protest of the nature claimed by the husband, which related, of course, to his personal business activity, and thirdly, that an agricultural agency of a provincial Chinese government, such as the debtor, would be involved in a human rights violation which was so extreme as to be denounced by a large group without much agitation. 11 The delegate also found that the husband's claim to be a Christian and to fear significant harm within the meaning of s 36(2)(aa) for reasons of being a Christian had been fabricated. Accordingly, the delegate refused the appellants' claims for a protection visa. The proceeding in the Tribunal 12 The Tribunal considered correctly that it had no jurisdiction to revisit the refusal of the appellants' claims to be entitled to protection as refugees under s 36(2)(a) of the Act: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366. The Tribunal therefore dealt with the appellants' claims solely on the basis of the complementary protection ground under s 36(2)(aa). 13 In essence, the Tribunal did not accept the husband's claims as credible. It found that he was not at real risk that he would suffer significant harm as a consequence of his failed business transactions from any creditors, his business partner, the Sichuan police or the PSB or any other China authority when he left China or if he were returned to China. The Tribunal accepted the husband had come to Australia to earn money to repay the debt to his business partner, which he had done. It found by allowing his elder son, who was then not quite 17 years of age, to return to China from the safety of Australia to sign documents relating to his debt was inconsistent with the husband's claim that he was at risk of significant harm and that the younger son could not live at home because of the danger that the husband was facing. The Tribunal considered that by sending his elder son back to China the husband had exposed his son to the risk of the harm that the husband claimed he would suffer. 14 It also found that the husband's claim that the police went to their home in China and threatened the younger son, forcing him to flee to Australia on a false passport later in 2011 or 2012 was inconsistent with his evidence at the hearing that the younger son could not live at home because of the threat to the husband who had left China in January 2007. The Tribunal remarked that nothing had happened to the younger son in China, prompting a response from the husband that his son had been threatened at home and he could not live there. The Tribunal found that it did not accept that the husband would have forgotten such an incident had it occurred and found implausible that the police would still be interested in the husband five or six years after he had left China. 15 The Tribunal also found that the husband had given inconsistent accounts of the protest activity that he claimed had occurred. It noted that at various points in his account, the protest involved between 10 and several hundred people. 16 Importantly, for this appeal, the husband told the Tribunal that he was not seeking protection on the ground of his religion. The Tribunal accepted that statement and, for that reason, did not consider any claim in relation to his religion. 17 Ultimately, the Tribunal did not accept that the husband had suffered significant harm in China or that there was a real risk that he would suffer any such harm in China were he return there then or in the reasonably foreseeable future for any one or more of the reasons that he claimed. Accordingly, it affirmed the delegate's decision. The proceeding before the trial judge 18 The appellants raised three grounds before the Federal Circuit Court that appear to have been drafted by a person who had some familiarity with the appellants' case but which raised legal arguments that are difficult to relate to that case. The first ground asserted that the Tribunal had found, which it had not, that the husband had taken no steps to stop his wife returning to China to Australia. In fact, he had stopped his wife returning and, instead, they had sent their older son. The second ground asserted that the Tribunal, first, had not identified and dealt with his claims to have been a refugee for the purposes of s 36(2)(a) and that that was a jurisdictional error, and secondly, failed to take into account the chance of the husband being detained based on his involvement with the sit-in protest, being a claim that obviously arose on the known material before the Tribunal that it had to consider it. The third ground alleged that the Tribunal had failed to assess his involvement with the local Christian church in terms of being an underground religion. 19 The trial judge dismissed each of those grounds for reasons which, in my view, were correct. He said on the first ground: The finding impugned by the applicant is at [58] where the Tribunal held: The primary applicant told the Tribunal that his wife was planning to return to China with their older son around Christmas 2006. It was her decision to remain in Australia when she found out the primary applicant was coming to Australia. He did not tell her or their older son not to return. The Tribunal does not accept that if there were such a risk of harm to him from November or early December that he had left his home, he would not have told his wife not to return from the safety of Australia. ... The Tribunal's point in this paragraph was simply that it was inconsistent for the [husband] to say on the one hand, that he was in fear of harm and yet, on the other, not to warn his wife about the danger of such harm. That reasoning was basic common-sense. The Tribunal did not make any finding about the wife's ability to avoid harm by acting discreetly. In light of that, the issues that arose in S395/2002 do not arise in the circumstances of this case … 20 His Honour pointed out that the Tribunal did not make any finding about the wife's ability to avoid harm by acting discreetly in accordance with the authority that the ground of review had invoked, namely Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. 21 His Honour rejected the second ground, saying that it appeared, as it does, to be an amalgamation of a number of different complaints. His Honour found, correctly, that the Tribunal had not accepted that the husband had been involved in any protests, and therefore did not need to consider that claim any further. The second complaint in ground 2, his Honour identified, was the Tribunal's rejection of his claim to have been involved in the protest for which the Tribunal gave a number of reasons based on its adverse view of the husband's credibility. The Tribunal found, as his Honour pointed out, that the husband's evidence about the protest was inconsistent. The trial judge noted that the Tribunal had not erred in that finding both in respect of the husband's inconsistent accounts of how many people were present or involved in the protest, as well as his inconsistent accounts about the time at which it occurred. The Tribunal found that, because of these inconsistencies, the husband's claim was not credible, and that that finding, his Honour found, was open on the material before the Tribunal. 22 His Honour rejected the third ground on the basis that it had no substance, first, because the Tribunal had no power to revisit the rejection of the appellants' claims to be entitled to protection as refugees that had occurred in 2007 and 2008, secondly, because the husband never claimed to have belonged to an underground religion and, moreover, had expressly disavowed any claim to rely on a fear of significant harm based on his religion when he was in the Tribunal. In those circumstances, the trial judge correctly found that the Tribunal was not obliged to consider that claim and its decision could not be challenged on that basis. For those reasons, his Honour dismissed the application with costs. This appeal 23 The appellants raised three grounds of appeal, namely that the Tribunal, first, had not identified correctly the potential harm that they feared from the Chinese Government, secondly, had not taken into account, in arriving at its adverse findings of fact, the supporting documents that the appellants had provided in and, thirdly, had reviewed the husband's case unfairly by failing to recognise the persecution that he would face were he returned to China. 24 In his oral submissions today, the husband said that he was telling the truth and that the Tribunal should have believed him. He claimed that the interpreter at the Tribunal hearing had not translated properly. 25 The Minister argued that the appellant should not be permitted to raise new arguments that were not put before the trial judge unless some reason appeared to warrant that which, the Minister argued, was not the present case. 26 In my opinion, none of the grounds of appeal or the arguments which the husband has put today has any substance at all. 27 First, the Tribunal correctly identified the harm that the husband claimed to fear were he returned to China. It disbelieved his evidence about the factual basis on which he claimed that fear arose. That was, quintessentially, the Tribunal's function, namely to consider and assess whether the factual circumstances by reference to which the husband claimed he would suffer significant harm were he returned to China then or in the reasonably foreseeable future, were such as engaged Australia's protection obligations under s 36(2)(aa). Having considered in detail the credibility of the husband's assertions as to the circumstances under which he claimed to have come to Australia, the Tribunal did not regard any of those claims as credible. Therefore it did not need to deal further with the claims that the husband had made that he feared harm by reason of those circumstances. 28 The second ground of appeal does not appear to make any sense. The Tribunal accepted the husband's account that he had come to Australia on a false passport, which he submitted to it together with his genuine one. The husband does not appear to have put before the Tribunal any other documents for it to take into account. He took me to nothing in the appeal papers, which I have read independently for the purposes of preparing to hear the appeal, to show that in fact, he put any documents before the Tribunal beyond those that established his identity. 29 The third ground is merely a complaint going to the merits of the Tribunal's finding that the husband was not credible. The hearing before the Tribunal lasted over three hours. The Tribunal considered the husband's claims in detail and rejected them. There is no evidence that the interpretation at the Tribunal hearing was in any way inadequate. The husband put no evidence before either the trial judge or myself to support a complaint about the interpreter. Accordingly, the argument is without substance and I reject it. Conclusion 30 In my opinion, the appeal is without substance and must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 31 January 2018