AES16 v Minister for Immigration

[2016] FCCA 1170

FEDERAL CIRCUIT COURT OF AUSTRALIA

AES16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1170

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to apply the relevant law – whether the Tribunal erred in making adverse credibility claims against the applicant – whether the Tribunal denied the applicant procedural fairness – real chance test – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 476

Applicant: AES16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 187 of 2016

Judgment of: Judge Street

Hearing date: 16 May 2016

Date of Last Submission: 16 May 2016

Delivered at: Sydney

Delivered on: 16 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr T Galvin
Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 187 of 2016

AES16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 13 January 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of China, and his claims were assessed against that country. The applicant was issued a Chinese passport that was valid on 29 February 2012. The applicant used that passport in 2013 to visit Malaysia, Singapore and Thailand.

2. On the 7 October 2013, the applicant was granted a subclass FA 600 tourist visa.  On 11 May 2014, the applicant arrived in Australia on that tourist visa.  On 6 August, shortly before the expiry of that tourist visa, the applicant lodged an application for protection.  The applicant claimed to be harmed by reason of his practice of Falun Gong.  The applicant claimed that particular incidents had occurred involving authorities on 20 May 2013 and on 24 December 2013.  The delegate found the applicant was not a credible witness. 

3. The delegate rejected all the applicant’s material claims on the grounds of being false.  On 4 May 2015, the applicant applied for review of the delegate’s decision.  On 30 November 2015, the applicant was invited to attend a hearing to take place on 7 January 2016.  The applicant appeared on that date to give evidence and present arguments.  The Tribunal found that the applicant was not a credible witness.  The Tribunal found that it did not believe that the applicant had a well-founded fear of persecution in China if he returned to China in the foreseeable future. 

4. The Tribunal also found that there is nothing to indicate that, should the applicant return to China, as a necessary and foreseeable consequence of his removal from Australia back to China there is a real chance or risk of significant harm to him because of Falun Gong practice. 

5. On 24 March 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed by the applicant. 

6. The application identifies the following grounds:

   1 The Tribunal did not exactly follow 36(2) (aa) of the Act. As a Falun Gong practitioner, I will face significant harm if returning to China. I cannot live without Falun Gong, the possibility that I will continue to practice Falun Gong is very high. But in China Falun Gong will be considered as cult, if I go back, I would be arrested. The Tribunal wrongly undervalued the evidence I got adverse attention of authorities in China.

   2 The Tribunal unreasonably rejected my explanation to why I did not apply the protection visa immediately after my arriving to Australia. The truth ignored by the Tribunal was that I did not know about protection visa until practitioner Yan told me about it. I came to Australia to avoid persecution and I was genuinely fearful for my safety and well-being, but it is not necessary to conclude that I would have taken at least some steps to inquire about the possibility of seeking protection in Australia, since I did not know about it.

   3 Through I only have limit knowledge of Falun Gong, it does not mean that I am not a devout Falun Gong practitioner. My head bashed by a baton and got hurt. I have depression now and my memory was bad. Forgetting details in the interview was very normal. RRT conclude that I called for a break because I did not want to answer the Tribunal's questions rather because my head was hurting based on no evidences, which was unfair. RRT should evaluate my health condition.

7. At the commencement of the hearing, the Court explained to the applicant that the matter was fixed today for hearing.  The Court explained that the hearing was to determine whether the Tribunal’s decision was affected by legal error.  The Court explained that the legal error had to be either an excess of statutory powers by the Tribunal or a denial of procedural fairness to the applicant. 

8. The Court identified that if satisfied there was a legal error by the Tribunal of the relevant kind, the decision would be set aside, and otherwise, if not satisfied that the Tribunal’s decision was affected by legal error, the application would be dismissed.  The Court also explained that it would identify the evidence and hear submissions from the applicant and then submissions from the first respondent and hear the applicant’s submissions in reply.  The applicant confirmed he understood the nature of the hearing as explained by the Court. 

9. In relation to ground 1, it is clear that the Tribunal identified the correct principles in relation to complementary protection and, in particular, s.36(2)(aa) of the Migration Act 1958.  Nothing said by the applicant identified any jurisdictional error in the application of the complementary protection criteria.  The adverse finding by the Tribunal in relation to the applicant’s credit was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  Ground 1 fails to make out any jurisdictional error. 

10. In relation to ground 2, this is, in substance, an impermissible challenge to the adverse findings made by the Tribunal.  For the reasons given, it was open to the Tribunal to make adverse findings in relation to the applicant and the applicant’s claims, and those adverse findings were reasonable and open on the material before the Tribunal.  Ground 2 fails to make out any jurisdictional error. 

11. In relation to ground 3, this is, in substance, a further impermissible challenge to the adverse findings of credit by the Tribunal.  It is clear from the decision of the Tribunal that during the course of the hearing the applicant asked for a break because his head hurt.  This was the second break in the course of the hearing on the face of the Tribunal’s reasons.  That break requested by the applicant occurred at a point of time in which the Tribunal was raising with the applicant inconsistencies in his evidence and his claims. 

12. The Tribunal made express reference to the fact that during the hearing, the applicant displayed certain behaviour in response to questions that were put that appeared to convey that the applicant thought he was entitled to refugee status and did not believe that the Tribunal should be questioning him.  The Tribunal referred to the applicant calling for a break and indicated that it had formed the view that the request was not because the applicant genuinely had a head that was hurting but rather the applicant did not want to continue answering the questions from the Tribunal. 

13. That was an adverse finding that was open for the Tribunal to make.  Nothing said in ground 3 identifies any jurisdictional error.  From the bar table, the applicant maintained that he did have a headache and that he had asked for a 10-minute break.  It is clear that the Tribunal did give the applicant a break.

14. The applicant, also from the bar table, said that he had delayed in applying for protection because he did not know anything and because of his limitations in English.  This is a further impermissible challenge to the adverse findings of fact made by the Tribunal and does not identify any jurisdictional error.  The application fails to identify any jurisdictional error.  Nothing said by the applicant identifies any jurisdictional error.

15. The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 May 2016