AIW15 v Minister for Immigration

[2015] FCCA 1475

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIW15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1475

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error.

Legislation:  

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476, 477

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: AIW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 915 of 2015

Judgment of: Judge Street

Hearing date: 29 May 2015

Date of Last Submission: 29 May 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 915 of 2015

AIW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW 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, in respect of a decision of the Tribunal made on 17 March 2015 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant arrived in Australia on 18 December 2006 and applied for a protection visa on 24 January 2007 which was refused.  The Tribunal affirmed the decision of refusal on 23 May 2007 after the applicant had failed to appear before the hearing.  The applicant was located on 30 September 2013 and detained.  The applicant then applied a second time for a protection visa which was refused on 6 June 2014.  The Tribunal identified, consistent with the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicant was entitled to make a further application in relation to complementary protection.

3. The Tribunal found that there were significant concerns in relation to credibility of the applicant in respect of the events that he claimed occurred in China and in relation to his claims and fears.  The Tribunal carefully summarised the six matters of concern in relation to the applicant’s credibility and relevantly found that the concerns were so numerous and significant, that it is not satisfied the applicant is a credible witness or that he has been truthful in relation to the claimed events in China.  The Tribunal found that it was not satisfied the applicant provided assistance to Falun Gong practitioners, or that he was arrested in China, or that he was assaulted, arrested, followed and monitored by the Chinese authorities, or that his family were questioned, or that he went into hiding, or that he left China because of fear of harm by Chinese authorities.  The Tribunal found that it was not satisfied that there are substantial grounds for believing that it is a necessary and foreseeable consequence to the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm for having provided assistance to a Falun Gong practitioner. 

4. The Tribunal made further adverse findings in relation to the applicant’s claim as follows:

   25. …The Tribunal finds that he has never practiced Falun Gong and would not practice Falun Gong if he was to return to China.  It follows that the Tribunal is not satisfied that it has 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 that he will suffer significant harm as a Falun Gong practitioner.

   Other claims

   26. …For the reasons discussed above the Tribunal is not satisfied that the applicant was involved with a Falun Gong practitioner in China. It follows that the Tribunal is not satisfied that there is a real risk of the applicant being harmed in China by the authorities because of his age.

   27. The applicant also stated that he fears returning because he has no family and no means of support in China. He stated that he can survive here in Australia by only working 1-2 days per week but if he went back he could not do anything and would not get a job because of his age. The applicant appeared genuinely distressed when speaking about his family and the Tribunal is willing to accept that he may be estranged from his wife and daughter. However, he has other family in China including a brother and sister. When asked at the hearing why they could not assist him he stated that they did not have the money to do so. In light of the significant credibility concerns of the Tribunal, including the applicant’s evidence about his past employment, the Tribunal is not willing to accept that the applicant would not be able to obtain any short term assistance while he finds a job, such as food and shelter. Furthermore, the applicant’s evidence was that social security is available in China, as his siblings are currently being supported by it.

   28. As discussed with the applicant at the hearing, the Tribunal does not accept that the applicant would be unable to find any employment in China. He has been able to find employment here in Australia where he does not speak the language and did not have work rights, suggesting a resourcefulness that would make him well placed to find employment in his own country. In addition he has in the past been able to find a range of employment in China and Australia, according to his own evidence, including as a labourer, in construction, as a carpenter, in restaurants and in a factory. As discussed with the applicant at the hearing in the DFAT Country Report for China1 it states that the registered unemployment rate in China is 4.1%, suggesting that most people are able to find employment. In response to this the applicant stated that the reports are also incorrect in relation to the average income. When asked if there was anything else he wanted to say about the unemployment information he stated that he does not want to go back to China because the Australian government is fair to its citizens and in China he would die.

   29. Even if the Tribunal was to accept that the applicant could not obtain employment, for example because of his age or for a period of time after his first arrival, it is not satisfied that this would constitute significant harm. As discussed with the applicant at the hearing as defined in s.36(2A) a person will suffer significant harm if he will be arbitrarily deprived of his life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The applicant does not claim that he would be subjected to the death penalty or to torture as a result of an inability to obtain employment. The Tribunal is not satisfied that the applicant would be deprived of life as he stated that social security is available in China (as evidenced by the fact that his siblings are currently supported by this) and he also has family in China. The Tribunal does not accept that there is a real risk that they would let the applicant die rather than offering him food and shelter.

   30. The Tribunal has considered whether he would be subjected to ‘Cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’, as defined in s.5(1) of the Act. ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The Tribunal is not satisfied that a lack of employment would be intentional inflicted on him or that it could reasonably be regarded as cruel or inhuman in nature. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. As discussed with the applicant the Tribunal does not accept that any harm suffered as a result of unemployment or lack of support would be intentionally inflicted upon him. In response to this the applicant replied that the government would intentionally inflict the harm. The Tribunal does not accept that there is any evidence before it to suggest that the Chinese authorities would prevent the applicant from obtaining employment, rather it would be an individual decision of each employer not to employ someone of the applicant’s age. In making that decision there would be no intention by the employer to harm the applicant.

   31. Therefore the Tribunal is not satisfied that any harm the applicant would suffer as a result of his potential unemployment and lack of support would constitute significant harm.

   32. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that it has 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 that he will suffer significant harm.

   33. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2)(c).

   34. Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) or (c).

5. The grounds of the application are as follows:

   1. The Tribunal erred in finding that Chinese authorities could punish the supporters to the organisation against the government, in circumstances where there was no evidence to support that finding.

   Particulars

   a. At paragraph 13 of the decision, the Tribunal stated that The Tribunal put to him that his evidence to the Tribunal had been that he was not working and had little money at this time and the Tribunal asked how he was able to afford to support his friend. The applicant then stated that he just assisted by delivering food from one friend who owned a restaurant to this other friend who was in hiding. The Tribunal considers that this is a significantly reduced role to that suggested by his written claim that he "harboured" a Falun Gong practitioner. The Tribunal does not find it credible that the Chinese authorities would have such a prolonged interest in the applicant that they would want to detain him and then follow him for a twelve month period after his release, merely because he had transported food to a friend.

   2. The Tribunal committed jurisdictional error in it consideration of whether I would face a wellfounded fear of persecution or a real risk that she would suffer significant harm.

   Particulars

   a. It considers that if the applicant did believe in Falun Gong then he would take the time to practice it here in Australia where he is free to do so. The Tribunal prefers his initial evidence that he is not a Falun Gong practitioner. The Tribunal finds that he has never practiced Falun Gong and would not practice Falun Gong if he was to return to China. It follows that the Tribunal is not satisfied that it has 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 that he will suffer significant harm as a Falun Gong practitioner.

   3. The Tribunal failed to consider an issue that clearly arose on the information before the Tribunal.

   Particulars

   a. Failure to consider whether a denial of a right to social security was persecutory.

6. Ground 1 is an impermissible challenge to the adverse finding of the Tribunal.  There is no identified jurisdictional error.  There is clearly evidence to support the adverse finding in para.13.  The applicant had appeared before the Tribunal on 16 March 2015 to give evidence and present arguments, and was assisted by an interpreter.  The Tribunal clearly raised with the applicant the dispositive issues in relation to the applicant’s claims and evidence.  It was a matter for the Tribunal to determine the issue of credibility.  There is no substance in relation to ground 1.  Ground 2 is an impermissible challenge to the adverse findings of fact where it is open to the Tribunal to make the adverse findings made and is in substance, an impermissible challenge to the merits of the case.  There is no substance in relation to ground 2. 

7. In relation to ground 3, it is clear that the Tribunal did deal with the issue of social security being available to the applicant. The Tribunal found on the applicant’s evidence that social security was available in China and that his siblings were currently being supported by it.  The Tribunal carefully took into account the applicant’s past ability to find employment both in China and Australia, and found on the applicant’s evidence that social security was available, as evidenced by the fact his siblings who are in China are currently.  Accordingly, there is no substance in relation to ground 3. 

8. There was no jurisdictional error of the kind raised in the application.  The adverse findings by the Tribunal were clearly open and the applicant had a genuine hearing, consistent with the statutory regime. The disappearance of the applicant for almost 5 years after the earlier adverse determination until found and detained would in any event be in my opinion disentitling conduct even if an error had been made out.  The application is dismissed. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 June 2015