Afh17 v Minister for Immigration

[2018] FCCA 3567

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFH17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3567

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal complied with its obligations of procedural fairness – whether the Tribunal had a real and genuine engagement with the applicant’s claims and evidence – whether the Tribunal failed to consider integers of the applicant’s claims – whether the Tribunal provided logical and rational reasons in support of its adverse findings –  whether the Tribunal bought an independent and impartial mind to the review – no jurisdictional error made out – amended application dismissed.  

Legislation:

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

Applicant: AFH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 23 of 2017

Judgment of: Judge Street

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Perth

Delivered on: 4 December 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Jackson
Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 4 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 23 of 2017

AFH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 December 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant arrived in Australia on a student visa on 5 February 2010. The applicant remained unlawfully after the expiry of that visa in Australia from 2 August 2010 until 3 October 2014.

3. The applicant claims to fear harm by reason of his Christian religion and his connection with Christians. The applicant applied for the visa on 3 October 2014. On 9 November 2015, the delegate found the applicant failed to meet the criteria for the grant of a Protection (Class XA) visa.

4. The applicant applied to the Tribunal for review. By letter dated 24 October 2016, the applicant was invited to attend a hearing on 16 December 2016. The applicant appeared on that date to give evidence and present arguments.

5. The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal identified the applicant’s migration history and the substantial period of time in which he remained unlawfully in Australia before applying for a Protection visa. The Tribunal summarised the applicant’s claims. The Tribunal referred to the applicant claiming that he faces persecution from the government because of his religious beliefs and activities. The Tribunal expressly referred to the four year delay before the applicant applied for protection. It was in those circumstances that the Tribunal drew the adverse inference from the fact the applicant did not lodge a Protection visa application until he had run out of all other options.

6. The Tribunal referred to the applicant having been young when he said he stopped attending church in China, but found his inability to specify a denomination caused the Tribunal to have concerns about the genuineness of his claimed beliefs. The Tribunal found the applicant’s evidence as to his conduct and content of the services was vague and lacking in detail. The Tribunal for that reason had concerns about the genuineness of the applicant’s claimed religious activities in China.

7. The Tribunal referred to inconsistencies between the applicant’s evidence given to the Tribunal in his statement and his oral evidence relating to the events that caused him to stop attending church. The Tribunal found the applicant’s decision to leave China and then remain in Australia with no visa were unrelated to his protection claims.

8. The Tribunal found the applicant gave contradictory evidence as to how and when his aunt became a Christian and what problems his aunt faced because of religious activities. The Tribunal made further reference to inconsistencies in the applicant’s evidence and in relation to his aunt’s faith and considered these inconsistencies and lack of detail to be critical as to the genuineness of the applicant’s claims. The Tribunal did not accept the genuineness of the applicant’s claimed religious beliefs.

9. The Tribunal did not accept as credible the applicant’s claims for protection. The Tribunal did not accept the applicant has a well-founded fear of persecution, well-founded fear of serious harm from the Chinese authorities, or anyone else, because of his family’s involvement with the underground churches. The Tribunal did not accept the applicant has a well-founded fear of serious harm from Chinese authorities, or anyone else, due to his religious beliefs.

10. The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm.

11. The Tribunal found the applicant failed to meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 13 January 2017. On 12 April 2017, a Registrar made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. The applicant did in fact put on an amended application filed on 21 February 2017.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant submitted that he was facing criminal charges in China. No such claim was advanced before the Tribunal. No such claim was identified in his two statements that he advanced before the Tribunal. Further, such a proposition is inconsistent with the form he completed in relation to alleged criminal charges. A claim that was not raised before the Tribunal cannot give rise to any jurisdictional error by the Tribunal.

4. The applicant’s submissions otherwise indicated that he wished to remain in Australia and was fearful of returning to China. The Tribunal made adverse findings in relation to the applicant’s claimed fears and referred particularly to the inconsistencies in the applicant’s evidence, including drawing the adverse inference from the applicant’s long period of remaining unlawfully in Australia before applying for protection.

5. The Tribunal’s adverse credibility findings in that regard cannot be said to be illogical, irrational or unreasonable. The adverse credibility findings were open for the reasons given by the Tribunal. The applicant’s disagreement with the Tribunal’s reasons does not identify any relevant legal error. The applicant’s submissions from the bar table otherwise invited the Court to engage in impermissible merits review. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The eight paragraphs in the amended application are as follows:

   1. I don't think DIBP and AAT's decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in Australia.

   2. DIBP and AAT's did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3. AAT failed to prudently consider my risk, especially my commitment of paralyzing if I return to origin.

   4. AAT's failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

   5. AAT treat my case unfair and unreasonable and did not consider that I will be persecuted by the Chinese government due to my Christian believe.

   Grounds of the application

   1. I have been actively involved in church actives in Australia. my action and religious performance has been evidenced by church elder with reference.

   2. AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.

   3. The tribunal's decision could give rise to an apprehension of bias in the mind of a reasonable observe.

Paragraph 1

1. In relation to paragraph 1, it is the Tribunal’s decision only that this Court has jurisdiction to review. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal.

2. The proposition that the applicant contends that the decision was not fair and reasonable in substance takes issue with the adverse findings made by the Tribunal. The Tribunal provided logical and rational reasons in support of the adverse findings that were dispositive of the applicant’s claims as summarised above. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by paragraph 1.

Paragraph 2

1. In relation to paragraph 2, it is apparent from the Tribunal’s reasons as summarised above that the Tribunal did consider the applicant’s statements and evidence and took the same into account in considering whether or not the applicant’s claims were genuine. It was open and relevant to the Tribunal to take into account the inconsistencies and, in particular, the substantial delay before applying for protection in determining whether or not to accept the applicant’s claims.

2. For the reasons earlier given, the adverse credibility findings were open. The proposition that the Tribunal did not consider the applicant’s statements and evidence is without substance and is inconsistent with the reasons as summarised above. The Tribunal’s reasons reflect a real and genuine consideration of the applicant’s claims and evidence. No jurisdictional error arises in relation to paragraph 2.

Paragraph 3

1. In relation to paragraph 3, the proposition that the Tribunal did not properly consider the applicant’s risk in substance is asserting a disagreement with the adverse findings. For the reasons already given, the adverse findings were open for the reasons given by the Tribunal as summarised above. No jurisdictional error is made out by paragraph 3.

Paragraph 4

1. In relation to paragraph 4, it is apparent that the Tribunal, for the reasons already given, took into account the applicant’s claims and submissions and there has been no evidence or claim identified that the Tribunal failed to consider. No jurisdictional error is made out by paragraph 4.

Paragraph 5

1. In relation to paragraph 5, this is, in substance, a repetition of ground 1. For the reasons already given, the Tribunal’s reasons were open to the Tribunal and, on the face of the material before the Court, the Tribunal conducted the review in accordance with the statutory regime. The applicant’s assertion that he will be persecuted by the Chinese government is, in substance, a disagreement with the adverse findings and does not identify any jurisdictional error. No jurisdictional error is made out by paragraph 5.

Ground 1

1. In relation to what is now ground 1, the applicant’s assertions of his involvement in activities in Australia were matters that were referred to by the Tribunal and the Tribunal made adverse findings that were open to the Tribunal. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, it was relevant and permissible for the Tribunal to consider whether or not to accept the applicant’s claims, particularly in the circumstances where the applicant had delayed four years before making the application for protection. The adverse credibility to findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, no conduct has been identified to support the allegation of apprehended bias. For that reason alone, ground 3 cannot succeed. Insofar as ground 3 is based on the adverse findings by the Tribunal, the adverse findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, the Tribunal conducted the review with an open mind, reasonably capable of persuasion as to the merits. No jurisdictional error is made out by ground 3.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2019