AMA15 v Minister for Immigration
[2015] FCCA 1954
•17 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMA15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1954 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Refugees and Migration Division) – Protection (Class XA) visa – complementary protection – whether the Tribunal failed to consider an integer of the applicant’s claim – where applicant withdrew part of his claim at the Tribunal hearing – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 476 |
| SZGIZ v Minister for Immigration and Citizenship [2013] 212 FCR 235 |
| Applicant: | AMA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1035 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2015 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondents: | Ms N Maddocks DLA Piper |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1035 of 2015
| AMA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 24 March 2015 affirming the decision of the delegate not to grant the applicant a Protection (class XA) visa. On 14 May 2015 the Court made orders fixing the matter for hearing today, and providing an opportunity for the applicant to amend the application and file any further affidavit evidence or put on written submissions. The applicant has not done so. The application raises the following grounds:
1 Regarding to the money I.owes in China, at the beginning, I borrowed RMB 700,000 from loan sharks and owes a further RMB 1,200,000 to factory owners. RRT made use of their advantages beating about the bush continually and making meaningless logical trap in the hearing. I pointed out that I could recall the specific events in order to provide evidences by questioning and answering specific. RRT never questioned me specific or just questioned general questions, but RRT ·required me to provide details answers. This ignored my own situation and was against the law. According to the law, RRT should make full sense of my own situation and not require excessive evidences.
2 The Tribunal failed to make a fair 'complementary protection' grounds test. I own a huge amount of money and I am a FalunGong practitioner. I would face persecution upon return to China. There are substantial grounds for believing that, there is a real risk that I will suffer significant harm if l removed from Australia to China.
The applicant had a long migration history, having arrived in Australia on 12 December 2004, which is set out in para.4 of the Tribunal’s decision. The applicant lodged a protection application on 20 January 2005 and, leaving aside the history of that application, it was unsuccessful. On 11 February 2014, the applicant lodged a protection visa application for a second time and, consistent with the principles in SZGIZ v Minister for Immigration and Citizenship [2013] 212 FCR 235. The second application was assessed to consider whether the applicant’s claims fell within the complementary protection provisions of s.36(2)(aa) of the Act.
That application for protection on the grounds of complementary protection was refused by the delegate on 22 May 2014, and the applicant then sought review before the Tribunal, at which he appeared on 19 March 2015 to give evidence and present arguments, and was assisted by an interpreter. The applicant was found to be a citizen of China, and his protection claim was assessed against that country as the receiving country. The applicant initially advanced two fears of persecution, the first being a Falun Gong practitioner, and secondly because of alleged debts he owes in China.
The Tribunal found that there were numerous and significant concerns in relation to the applicant’s evidence, and was not satisfied the applicant had been truthful in his evidence or claims. Materially, in relation to the applicant’s claim of a fear of persecution as a Falun Gong member, the Tribunal records as follows:
28. In his written claims the applicant claimed to fear returning to China because of business debts. He also referred to having been persecuted as a Falun Gong practitioner. However, at the 2015 hearing he initially stated that there was no other reason he feared returning now besides the issue with the debts as he can avoid all the other reasons. When the Tribunal asked if he had any fears about returning to China because of his Falun Gong practice he stated that it has been such a long time and if he avoids it then it would not be a problem. When the Tribunal asked when he started practising Falun Gong he stated that he did not want to talk about this issue. When the Tribunal asked if he was saying that he did not want to make any claims in relation to Falun Gong he replied “let it go”. The Tribunal clarified with him that although his written claims referred to Falun Gong he now only wants to make claims in relation to his debts. He confirmed that this was correct. The Tribunal is satisfied that the applicant has withdrawn his claims in Falun Gong and therefore the Tribunal does not find it necessary to make any findings in relation to this.
The Tribunal set out detailed reasons in support of its adverse credit findings, and in respect of the claim relating to alleged debts owing in China, relevantly found:
27. The Tribunal finds the concerns set out above so numerous and significant that it is not satisfied that the applicant has been truthful in his evidence or claims. The Tribunal is not satisfied that the applicant owned a shoe business in China in relation to which he incurred substantial debts from a failed commercial transaction. The Tribunal is not satisfied that the applicant is being sought by factory owners or loan sharks because of any debt he owes to them. It follows that the Tribunal is not satisfied that the applicant was accused of being a Falun Gong practitioner because of the debts, that the applicant was detained in China because of the debts, that his business was forced to close or that his friend was detained after the applicant departed China. 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 because of any debts incurred in China.
The Tribunal also noted that there had been a previous claim made in relation to his family’s treatment during the Cultural Revolution, in respect of which the applicant stated, at the hearing before the Tribunal, this happened a long time ago and he can avoid the issue now. The Tribunal made the following further findings:
29. At the 2015 hearing the applicant stated that he only wished to pursue his claim in relation to the debts. In relation to previous claims made in his first protection visa application arising from his family’s treatment during the Cultural Revolution he stated at the 2015 hearing that this happened a long time ago and he can avoid the issue now. The applicant did not raise this in his current protection visa application. In light of his evidence, the time that has passed since the relevant events and the lack of harm to the applicant as a result of the Cultural Revolution since then, 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 because of his family’s treatment during the Cultural Revolution.
30. … In light of his evidence, the time that has passed since the relevant events, his evidence that he is no longer involved in any political activities and the lack of harm to the applicant as a result of his past political activities since 1989, 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 because of his political opinion.
31. 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.
It is in those circumstances that the Tribunal found that the applicant did not satisfy the criteria under s.36(2)(aa), and that the applicant was not a person in respect to whom Australia had a protection obligation under s.36(2)(aa) or (c). The applicant was invited to put submissions in response to the first respondent’s written submissions or in support of his application and indicated that there was nothing he wished to put. The first respondent’s submissions are that the grounds raised in the application are an impermissible challenge to the adverse findings of fact by the Tribunal, and do not disclose any jurisdictional error.
The Court raised with the first respondent the fact that ground 2 sought to resurrect the claim relating to being a Falun Gong practitioner. I accept the first respondent’s submission that this claim was clearly withdrawn by the applicant before the Tribunal and that it was not a claim which in those circumstances the Tribunal had to address. Materially, the Tribunal asked the applicant whether he wanted to make any claims in relation to Falun Gong and he replied, “let it go.”
I am satisfied the Tribunal went further by taking steps as recorded in its reasons to clarify with the applicant that although his written claims referred to Falun Gong, he now only wants to pursue the claim in relation to his debts, and it is clear from the Tribunal’s reasons that the applicant confirmed that was correct. It is clear that, in those circumstances, the applicant had withdrawn the claim before the Tribunal in respect of a fear of persecution by reason of being a Falun Gong practitioner.
In those circumstances, it is not open to the applicant to contend that it is a jurisdictional error by reason of the Tribunal not addressing a claim that the applicant had clearly withdrawn. The review required by the statutory regime is only of the claims made by the applicant of claims that should be approved on the material before the Tribunal and not claims that are clearly withdrawn.
I accept the first respondent’s submissions that the Tribunal properly conducted the review and addressed the applicant’s claim in relation to alleged debts, and it was a matter for the Tribunal to determine whether it accepted the applicant’s credit. There is no error as alleged in ground 1.
In relation to ground 2, the Tribunal carefully set out the criteria for complementary protection in the incorporated attachment to the reasons of the Tribunal, and there was no error in the application of those statutory criteria by the Tribunal. Ground 2 fails to make out any jurisdictional error. The adverse findings by the Tribunal were clearly open on the material before the Tribunal. The applicant had a genuine hearing and the Tribunal, on the material before the Court, complied with the statutory obligations in respect of the conduct of the review. The application is dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 21 July 2015
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