SZHYH v Minister for Immigration and Border Protection (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: ALLSOP CJ
• Judgment Date: 30 April 2019
• Neutral Citation: [2019] FCA 589
• Date: 30 April 2019

FEDERAL COURT OF AUSTRALIA

SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589

Appeal from:	SZHYH v Minister for Immigration and Anor [2017] FCCA 3086
File number:	NSD 2301 of 2017
Judge:	ALLSOP CJ
Date of judgment:	30 April 2019
Catchwords:	MIGRATION – application for Protection Visa – complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) – adverse credibility findings made against appellant based on inconsistencies – corroborating evidence afforded lesser weight – whether unwarranted assumptions made – whether Tribunal failed to consider holistically the evidence before it – whether Tribunal reached conclusions about the credibility of the appellant in a way that was legally unreasonable
Legislation:	Migration Act 1958 (Cth) ss 36(2)(aa), 48A
Cases cited:	ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 ASB17 v Minister for Home Affairs [2019] FCAFC 38 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 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 Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Re Minister; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 SZHYH v Minister for Immigration and Border Protection (No 2) [2018] FCA 1417 SZHYH v Minister for Immigration and Border Protection [2018] FCA 687 SZHYH v Minister for Immigration and Citizenship [2009] FCA 1001
Date of hearing:	11 May 2018; 12 December 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	57
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr B D Kaplan
Amici Curiae	Mr S Free SC with Ms C Trahanas

ORDERS

		NSD 2301 of 2017
BETWEEN:	SZHYH Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	30 April 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court of Australia made in SYG 551 of 2016 on 15 December 2017 be set aside, and in lieu thereof it be ordered that:

   1. the decision of the Administrative Appeals Tribunal dated 23 February 2016 be set aside;

   2. the matter be remitted to the Administrative Appeals Tribunal for re-determination according to law; and

   3. the first respondent pay the applicant’s costs.

3. The first respondent pay the appellant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1. This is an appeal from orders of the Federal Circuit Court of Australia made on 15 December 2017 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) of 23 February 2016 affirming the decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The appellant’s claims for a protection visa reach back to early May 2005, when he arrived in Australia from the People’s Republic of China. Within two weeks of arrival, he made his first application for a protection visa claiming that he would be killed if he returned to China. He was about 36 years old when he made this application. I will come to the claims presently.

3. The first application was refused by a delegate of the Minister in August 2005 and affirmed in November 2005 by the Refugee Review Tribunal (RRT) (the first Tribunal). In July 2007, this first Tribunal decision was set aside by the Federal Magistrates Court of Australia.

4. In October 2007, the RRT once again affirmed the delegate’s decision (the second Tribunal). In October 2008, this second Tribunal decision was also set aside by the Federal Magistrates Court.

5. In February 2009, the RRT once again affirmed the decision of the delegate (the third Tribunal). This time, on 4 June 2009, the Federal Magistrates Court dismissed an application for judicial review. In August 2009 an appeal to this Court was dismissed: SZHYH v Minister for Immigration and Citizenship [2009] FCA 1001. On 10 March 2010 the High Court refused special leave to appeal.

6. After the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 that was concerned with the proper construction and reach of s 48A of the Migration Act 1958 (Cth), the appellant, on 26 September 2013, lodged another (second) visa application. This application was refused by a delegate on 13 June 2014. The AAT affirmed this decision on 23 February 2016. An application for judicial review of this (fourth) Tribunal decision was dismissed by the primary judge in the Federal Circuit Court on 15 December 2017. The appeal is from those orders.

7. The claims for this visa were (as was necessary by reason of s 48A construed in accordance with SZGIZ) based on the complementary protection criterion in s 36(2)(aa) of the Migration Act; that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to China, there is a real risk that the appellant will suffer significant harm.

8. The appellant’s claims were set out from [5]-[22] of the decision record. The primary judge summarised them at [17] of his reasons from a letter of the appellant dated 28 December 2011 attached to his earlier protection visa application:

a) The Applicant fled from China to Australia in 2005 due to persecution.

b) In early 2005, following the suicide of his friend as a result of local government bullying, the Applicant organised gatherings, parades and quiet sit-ins in order to protest to the government and to ask for justice. This course of action “infuriated the local government” which led to his arrest by the Public Security Bureau in China on 8 February 2005.

c) While under arrest, the Applicant was “cruelly tortured and treated inhumanly”. In order to get out of prison, in March 2005 his wife bribed the Public Security Bureau and he was able to get bail, conditional upon him being restricted from moving and being “on call at all times”.

d) Due to fearing for his life, fear of “being arrested and locked up again”, and being “afraid that [he] could suffer no more” the Applicant came to Australia.

e) The Applicant fears...