AMS15 v Minister for Immigration

[2015] FCCA 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2016

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – Protection (Class XA) visa – bias – where the applicant failed to disclose any conduct indicative of bias – where a fair minded person might not reasonably apprehend that the decision maker might have brought an impartial and independent mind to the determination of the matter on its merits – where remaining grounds impermissible merits review – application dismissed.

Applicant: AMS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1063 of 2015

Judgment of: Judge Street

Hearing date: 24 July 2015

Date of Last Submission: 24 July 2015

Delivered at: Sydney

Delivered on: 24 July 2015

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Respondents: Mr L. Dennis
Sparke Helmore

ORDERS

1. 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.

2. The application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1063 of 2015

AMS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The 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 23 March 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The application identifies the following grounds:

   1, I am a Chinese student and have faithful and committed Christian faith. I have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.

   2, I have been actively involved in church actives.

   3, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

   4, Tribunal's over objective in judging the explanation and the response of the applicant at the hearing

3. Orders were made on 28 May 2015, fixing the matter for hearing and providing the applicant with the opportunity to amend the application, filing further evidence or any submissions in support. The applicant has not done so.

4. In response to the first respondent’s submissions in support of the application the applicant indicated that he intended to come to bring a lawyer but had not done so and had nothing further he wished to say.

5. The first respondent submitted that the grounds raised were in substance in respect of grounds 1-3 were an impermissible challenge to the findings made by the Tribunal and did not identify any jurisdictional error. The respondent submitted that ground 4 did not properly advance the allegation of bias and that no case of bias was properly proved.  The respondent also contended that a fair minded person by reason of the adverse findings of credit made by the Tribunal might not believe that the Tribunal might not bring an independent or impartial mind to determine the application on its merits. 

6. The first respondent submitted that the Tribunal had properly dealt with the applicant’s claim and fear due to his Christian beliefs. In response the applicant submitted that the Department had not fully dealt with the risks that he would face if he returned to China. The applicant confirmed that those risks arose by reason of his Christian beliefs. 

7. This is a case where the Tribunal made adverse findings in relation to the applicant’s credit. The applicant was found to be a citizen of China and appeared before the Tribunal on the 22 October 2014 and 24 February 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent. The Tribunal identified the applicant’s fear of persecution by reason of being a Catholic and of his Christian faith. Relevantly, the Tribunal found:

   55. On the basis of his PRC passport, I accept that the applicant is a national of the PRC and is not a national or citizen of any other country or has a right to enter and reside in any country other than PRC. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that PRC is the applicant's “receiving country” for the purposes of s.36(2)(aa).

   …

   63. On the evidence before me, I am satisfied that the applicant did not attend underground Christian church in PRC. I am satisfied he has created his claims of  following his father and attending an underground church in PRC in order to enhance his claims for the visa sought.

   64. In PVA1 there were no claims made that the applicant held any fears for his safety when returning to China or that anything had happened to him whilst living in China. I accept that it was cheaper for the applicant and his father to apply together, for a visa, but I do not accept as plausible that the applicant’s fear of harm would not be mentioned in PVA1 because he was in the detention centre and all issues were handled by his father. I accept that the applicant was in detention, but I do not accept that the applicant and his father would omit crucial and relevant claims. In PVA2 the applicant did not suggest that he had any difficulty departing China or that the police were interested in him when residing in China.

   …

   67. The independent evidence before me indicates that the PRC authorities set up an extensive computer network in 2003  and the police monitor persons exiting PRC via this computer network. I do not accept the applicant’s explanation that only the local police station were interested in him. I am of the view that were the applicant of interest to the local police at the time he left PRC some mention would have been made in PVA1.

   68. At the 2^nd T2 hearing the applicant said that when he was attending church in China with his father, his father was arrested, detained and paid a fine.  He did not make this claim at the 1^ST T2 hearing, merely stating that the police have a list of names of those who had attended illegal churches and referred to his father’s claimed detention on return to PRC. I am of the view that the applicant created this late claim of his father’s detention when he and his father resided in PRC, in order to enhance his claim for the visa sought.

   69. On the evidence before me I am satisfied the applicant is not a witness of truth. I am satisfied that the applicant has created his claims in order to obtain the visa sought.

   …

   71. As I do not accept the applicant is a witness of truth I do not accept that the documents he has produced to the Tribunal are genuine. Furthermore, the independent evidence, cited below, indicates that authenticating documents from China is a major issue for a number of governments and that the Australian authorities are not able to determine the authenticity of the Certificate of Arrest and summons issued by [Y] Public Security Bureau without identifying the applicant to Chinese authorities. The applicant is from a village near [XY]. There is a very high level of document fraud in northern Fujian Province, especially in [Y]. I place no weight on those documents. It follows that I am not satisfied that the applicant’s father was harassed or harmed on his return to PRC and as I am satisfied that the applicant is not a witness of truth I do not accept that the applicant’s father was a practising baptised Christian in PRC. 

   …

   74. I am satisfied that the applicant is not a witness of truth, I am satisfied the applicant is not a Christian follower of the underground church who merely followed his father. I find that the applicant is not a credible witness and I am of the view that he is prepared to say anything to obtain a visa without any regard for the truth. I do not accept that he is on a list of names in the police station of those who have attended the underground church. I am not satisfied the applicant or his father were of adverse interest to the local police, or to the PRC authorities at the time he left PRC for Australia or that he fled PRC fearing serious harm. I am satisfied that the applicant came to Australia as the holder of a student visa.

   …

   81. I am satisfied the applicant did not flee China fearing harm but came to Australia on a student visa.

   82. I have rejected the entirety of the applicant's claims in relation to his involvement in the underground Church in China and his claims that flow from that. I have found that the applicant was not a Roman Catholic or a Christian and I do not accept that he would practice Roman Catholicism or attend an underground Church if he returned to China now or in the reasonably foreseeable future. Whilst I accept that the applicant had attended the Catholic Church at Flemington I am satisfied that this attendance was in order to strengthen his claims for the visa sought and I do not accept that he has a commitment to practice Christianity into the future. As no adverse religious profile has been imputed to him, it follows that I do not accept that the applicant will be significantly harmed by the local police or any other authorities and will not be able to obtain protection from the Chinese authorities.

   83. In view of the above findings, I am not satisfied that there are 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in subsection s.36(2A) of the Act.

   84. Therefore, I find that the applicant does not satisfy the criterion in s.36(2)(aa). 

   85. 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)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

8. I accept the first respondent’s submissions that grounds 1-3 are in substance an impermissible challenge to the merits of the review and that the adverse findings were reasonably open and cannot be said to lack an evident and intelligible justification.

9. In relation to the allegation of ‘over objective in judging’, I accept the first respondent’s submissions that there is nothing to indicate that the Tribunal did not properly conduct the review in accordance with the Act. I accept the first respondent’s submission that the bias has not been squarely alleged or properly proved. To the extent relevant, in respect of the adverse findings a fair minded person might not reasonably apprehend that the decision maker might not have brought an impartial and independent mind to the determination of the matter on its merits.

10. It was classically a matter for the Tribunal to determine the credibility of the claims advanced by the applicant. The adverse findings as to credibility were clearly open on the material before the Tribunal. The application fails to disclose any jurisdictional error. The application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 July 2015