APU15 v Minister for Immigration

[2015] FCCA 2203

FEDERAL CIRCUIT COURT OF AUSTRALIA

APU15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2203

Catchwords:
MIGRATION – Administrative Appeals Tribunal (migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal correctly took into account the applicant’s ethnicity – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(c), 476

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

Applicant: APU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1174 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: Mr K Eskerie
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 First Respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1174 of 2015

APU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS 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 (Cth) in respect to the decision of the Tribunal made on 7 April 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of China and his claims were assessed against that country.

2. The applicant entered Australia on 7 July 2002 on a Republic of Korea passport and first made an application for protection using that identity and an unsuccessful appeal to the Refugee Review Tribunal.  The applicant was located on 3 September 2013 and he was then permitted to make a second protection application on 21 October 2013 in relation to what the Tribunal found was his true identity, which application was refused by the delegate on 13 June 2014.

3. The second application was assessed in relation to complementary protection consistent with the principles identified in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 238. The applicant was invited to appear at a hearing before the Tribunal consistent with the requirements of the Act and appeared before the Tribunal on 7 April 2015 to give evidence and present arguments and was assisted by an interpreter and represented by a registered migration agent, although that migration agent did not attend the hearing.

4. The applicant claimed to fear that there was a real risk he would suffer significant harm if returned to China because of his Korean ethnicity and that he had been denied equal opportunities in China because of his ethnicity.  The applicant claimed that he had protested against inequality and discrimination, that the authorities had accused him of creating a disturbance, that he had been sacked from a government owned company and had become jobless, and that he claimed that if he was returned to China he would be persecuted and jailed by the authorities.

5. The Tribunal carefully summarised the evidence given by the applicant at the hearing on 7 April 2015 in relation to the applicant’s claims and, relevantly, the Tribunal found:

   20. The applicant stated at the hearing that he did make a complaint to the authorities about being fired but that the authorities ignored him and he did not suffer any consequences as a result of making that complaint. He stated that he did not have any fears about returning to China now because of this. The Tribunal is not satisfied that the applicant would continue to complain to the authorities or that if he chose to do so, there is any evidence to suggest that he would suffer from significant harm as a result given the lack of past harm and his lack of fears about returning to China. He stated that he had never been arrested or detained in China and that he did not fear that anyone would harm him if he was to return to China now. Therefore, despite the statement in the applicant’s written application form that he fears persecution, harm, discrimination, mistreatment and being jailed by the Chinese authorities, the Tribunal is not satisfied that this is an accurate reflection of his fears. The Tribunal prefers the applicant’s oral evidence and finds that the applicant does not have any fear of harm from the Chinese authorities if he was to return to China and there is no real risk that the Chinese authorities would harm him.

   21. In light of the independent country information referred to above about the treatment of ethnic Koreans in China; the lack of significant harm to the applicant’s family who are ethnically Korean and continue to live in China; the lack of past significant harm to the applicant including his ability to access education, employment and accommodation; the applicant’s own evidence that he would not suffer from significant harm if he returned to China in the future; and the Tribunal’s findings that he could obtain employment and be supported while seeking employment, 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 Korean ethnicity.

   22. The applicant stated at the hearing that the claims made in his first protection visa application were false. He stated that he is not, and never has been, a South Korean citizen and has never lived in South Korea. Therefore 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 activities engaged in while living in South Korea.

   23. 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.

6. It was in those circumstances the Tribunal found that the applicant was not entitled to any complementary protection under ss.36(2)(aa) or 36(2)(c).

7. The grounds of the application are as follows:

   1. The Tribunal erred in construe that the discrimination against me because of Korean ethnicity was not part of the Refugees Convention.

   Particulars

   a) At paragraph 16 of its decision, the Tribunal is willing to accept that there was some low level discrimination against him in one former position because of his Korean ethnicity, such a lack of flexibility in work hours while he was studying, a lack of promotion and allocation of tasks which may have been more beneficial to other employees. The Tribunal accepts that any future employer would be likely to be aware of his Korean ethnicity, including because his ethnicity is stated on his national ID card.

   2. The Tribunal failed to exercise jurisdiction without considering criteria of Refugee Convention applicable to my case. It is obvious that the discrimination on the race constitutes a real risk of being persecution.

   Particulars

   a) At paragraph 19 of the decision, it say "The Tribunal has considered whether the harm which the applicant may suffer in his employment would constitute significant harm. '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 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. 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. The Tribunal is not satisfied that any low level discrimination that the applicant may suffer in his workplace would constitute torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as it is not sufficiently serious to constitute such harm."

8. Both ground 1 and ground 2 appear to misconceive the limited scope of the applicant’s second protection visa application which was confined to the grounds of complementary protection.  It is clear that the Tribunal took into account the applicant’s Korean ethnicity and that the applicant had a genuine hearing and that the Tribunal complied with its statutory obligations. 

9. It was a matter for the Tribunal to determine in relation to the applicant’s claims the impact of his Korean ethnicity and there is no jurisdictional error disclosed by ground 1.  Insofar as ground 1 refers to the matter accepted by the Tribunal in para.16, that does not provide any basis to say that the adverse findings made by the Tribunal were not open and I am satisfied that it cannot be said that the adverse findings lack an evident and intelligible justification.

10. Insofar as ground 2 raises the issue of the applicant’s race it is clear that this was the subject of assessment by the Tribunal in its review.  Both ground 1 and ground 2 fail to identify any jurisdictional error.  Nothing was said by the applicant from the bar table to identify any jurisdictional error.  This was a case where the Court made orders on 4 June 2015 providing the applicant with an opportunity to amend the application, file further evidence, or put on submissions and no such step was taken.

11. 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