AOW15 v Minister for Immigration

[2015] FCCA 2198

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOW15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2198

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – whether the Tribunal’s findings in relation to credit were reasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: AOW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1156 of 2015

Judgment of: Judge Street

Hearing date: 14 August 2015

Date of Last Submission: 14 August 2015

Delivered at: Sydney

Delivered on: 14 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner-Knight
Australian Government Solicitors

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 First Respondent’s costs fixed in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1156 of 2015

AOW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 31 March 2015 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 as the receiving country.

2. The applicant entered Australia in February 1998 on a South Korean passport and applied for protection which was refused.  The applicant sought a review of that decision and the delegate’s refusal was affirmed on 11 February 1999 and the applicant became a prohibited non-citizen for over a decade. 

3. The applicant lodged a second claim for protection consistent with the principles identified in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 in respect of complementary protection which was refused by the delegate on 29 May 2014. The applicant then sought a review before the Tribunal and appeared before the Tribunal on 31 March 2015 to give evidence and present arguments and was assisted by an interpreter.

4. When deciding whether or not the applicant was entitled to the benefit of a protection visa on complementary protection grounds, the Tribunal identified that there was significant issue in this case as to whether the applicant was a reliable witness and the Tribunal found:

   7. …Another very significant issue in this case is Mr [AOW15]’s reliability as a witness. Having considered all of the evidence in this matter I find that he is an overwhelmingly unreliable witness.

5. The issues raised in the application are as follows:

   1. I disagree with Immigration and RRTs decision since I am a genuine Falungong member. They did not consider that I will be in danger if I return

   2. RRT did not consider that I am still actively practicing in Australia and it will also bring me a big trouble if I return home

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

6. The applicant’s claim for protection was to the effect that he feared significant harm if returned to China because he practised Falun Gong.  The Tribunal identified that claim and the evidence given by the applicant in support of that claim.  It was a matter for the Tribunal to determine whether or not to accept the applicant’s evidence. 

7. Relevantly, the Tribunal found:

   21. I find on the evidence before me that Mr [AOW15] is not a genuine Falun Gong practitioner. Whereas I can accept he first learned with a friend who was later deported, I find on the evidence before me that Mr [AOW15]’s account as to when the friend was deported is unreliable, and I do not accept on the evidence before me that Mr [AOW15] first learned Falun Gong much before lodging his new protection visa application. I do not accept that Mr [AOW15] ever learned or practiced Falun Gong in a public place such as Belmore Park. In fact I am not satisfied on the evidence that his interest in Falun Gong was ever anything but an afterthought, arrived at upon learning that new protection visa applications were being accepted for the purpose of considering complementary protection claims.

   22. I do not believe that Mr [AOW15]’s engagement with Falun Gong in Australia has or would ever come to the attention of the authorities in China, or in any other way lead to significant harm. I do not believe that his story about [X] is truthful. I believe that if anyone in China were to ask Mr [AOW15] if he had ever had any involvement in Falun Gong he would deny it, not to avoid being persecuted as a genuine Falun Gong practitioner but because he is not and has never been a genuine Falun Gong practitioner. I find that Mr [AOW15] would not take up Falun Gong in China even in private for the sole reason that he is not genuinely interested in Falun Gong.

   23. …On review of all of the evidence in its entirely, I find that Mr [AOW15]’s new application for a protection visa has been purely opportunistic.

   24. On the evidence before me, I am not satisfied I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that Mr [AOW15] will suffer significant harm.

   25. For the reasons given above, I am not satisfied that Mr [AOW15] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   26. There is no suggestion that Mr [AOW15] 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, Mr [AOW15] does not satisfy the criterion in s.36(2).

8. Ground 1 of the application seeks to cavil with the adverse finding of fact made by the Tribunal.  The adverse finding in relation to the applicant’s credibility was open on the material before the Tribunal and ground 1 does not disclose any jurisdictional error.  It is clear that the Tribunal held a genuine hearing and addressed the essential integer of the applicant’s claim. 

9. Ground 2 is a further endeavour to cavil with the adverse finding of credit made by the Tribunal in relation to the applicant being an active Falun Gong practitioner.  This was a matter for the Tribunal to determine and ground 2 is an impermissible challenge to the merits of the decision. 

10. Ground 3 contends that the finding adverse to the applicant in relation to his credit was unreasonable.  The Tribunal has set out the evidence taken into account in coming to the adverse credit findings and it cannot be said that those adverse findings lack an evident and intelligible justification.  It is clear that there was a logical basis on the evidence for the Tribunal to come to the adverse findings of credit. There is no substance in relation to ground 3. 

11. The applicant maintained that he was telling the truth and did not know why the Tribunal had not believed him.  It is clear from the Tribunal reasons the basis upon which the Tribunal came to an adverse credit finding.  Nothing said by the applicant from the bar table identified any jurisdictional error.  This was a case where the Court made orders on 4 June 2015 providing the applicant with an opportunity to file any amended application, affidavit or submissions in support of the claim for relief and no documents were filed.  The application is dismissed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  18 August 2015