AQH15 v Minister for Immigration

[2015] FCCA 2200

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQH15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2200

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the Tribunal put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 476

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

Applicant: AQH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1188 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 S Lloyd
Minter Ellison

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 $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1188 of 2015

AQH15

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 of a decision made by the Tribunal on 10 March 2015 confirming 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 claim was assessed against that country as the receiving country.

2. The applicant first arrived in Australia on 18 April 1998 travelling on a fraudulent passport and first applied for protection on 14 September 1998.  The applicant was refused a protection visa by the delegate on 27 October 1998 and that decision was affirmed by the Tribunal on 23 April 1999.  On 28 May 1999, the applicant remained unlawfully in Australia until he was located and detained on 7 March 2013 whereupon the applicant then made a second protection visa application on 6 September 2013 which was refused by the delegate on 16 May 2014.

3. The applicant was sent an invitation to appear before the Tribunal on 17 February 2015 and completed a response to hearing invitation and attended before the hearing on 8 April 2015 to give evidence and present arguments and was assisted by an interpreter and was also represented by a migration agent.  The second application was on the grounds of complementary protection consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 in relation to the applicant’s claims of fear and that he would suffer significant harm if returned to China.

4. The Tribunal identified serious concerns with the applicant’s credibility.   Relevantly, the Tribunal found:

   68. Nonetheless, I do not accept the applicant’s claim that he was falsely accused of involvement with Falun Gong because his mother and other villagers (but not the applicant himself) opposed the redevelopment of their family home by local government; nor do I accept that the applicant still faces imprisonment for this reason.

   69. I do not accept that the applicant’s account of events is credible. First, while he has been able to repeat the broad outline of his claims he was not able to provide me at the hearing with additional details or background information. For example, it was difficult to obtain from him details of the form the opposition to the property acquisition took, or what the response of the government was. The applicant’s evidence in the end was that he had no involvement in the protests and knew nothing of the government’s response until the day he was out fishing and the local party official delivered the message that he was to be arrested, and should not return home. The applicant indicated that nothing happened that led him to suspect that he faced any problems – there was the opposition to the property acquisition with which he was not involved; there was no warning that he might face repercussions from the local authorities; he faced no actual harassment or any kind of warning. I find this account of events simply implausible. Secondly, as discussed with the applicant at the hearing, the Falun Gong movement was not banned by the Chinese authorities until April 1999. It was only then that the widespread crackdown on practitioners commenced. While it appears that the authorities had some issues with the movement before 1999 as, for example, some Falun Gong publications were banned, and its belief system was questioned, I can find no specific references to arrests of ordinary practitioners during 1997 . Even if there were, it appears highly implausible that local authorities would make false accusations of this particular nature against the family at this time, well before the organisation was banned and apparently without any clear legal basis for the charges. Finally, given the applicant’s evidence that he and his brother were not actually involved in the opposition to the property acquisition, and that the legal title to the property belonged to their mother, I do not accept that the applicant or his brother would have been framed as claimed.

   70. In these circumstances, I do not accept the applicant’s account of the false allegations having made against him, his mother and brother; I do not accept that his wife and sister-in-law admitted the applicant’s involvement in Falun Gong; or that he faces imprisonment as a consequence if he returns.

   71. I consider that, if the applicant faced any outstanding criminal or other charges in China, he would not have been willing to approach the Chinese authorities in Australia to obtain a passport, as he did in 2013; or that a passport would have been issued, apparently without difficulty. Although the applicant suggested that the delay of three months in the issue of the passport was unusual and indicated a problem, I do not accept that this delay reflects anything other than the applicant’s somewhat unusual circumstances, in particular the absence of identity documents and his long absence from China.

   72. While I accept that returning to China after an absence of almost twenty years would be difficult, I do not accept that any aspects of the applicant’s return would cause significant harm, as defined. There is no credible evidence to suggest that the applicant would face the death penalty or the arbitrary deprivation of life. I do not accept that he faces imprisonment because of outstanding Falun Gong related charges, or for any other reason. I therefore do not accept that he faces torture or any other form of significant harm in the context of imprisonment. I do not accept that any difficulties he might face as a consequence of his long absence – such as difficulty adjusting, disconnection from old networks and a lack of family ties – constitute cruel or inhuman or degrading treatment or punishment. The definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act requires that the pain or suffering be intentionally inflicted on a person. Similarly, “degrading treatment or punishment” is defined to mean an act or omission that causes and is intended to cause extreme humiliation. I am not satisfied that any pain or suffering caused to the applicant by returning after a long absence would be intentionally inflicted; nor would any consequence be the result of an act or omission intended to cause extreme humiliation6. In these circumstances, I do not consider that any form of hardship suffered by the applicant on return would constitute significant harm as defined.

   73. Overall, for the reasons set out above, I do not accept that the applicant was falsely accused of involvement with Falun Gong in 1997, or that he fled China for that reason, or that he faces outstanding charges and imprisonment on false charges of being a Falun Gong practitioner. Even if there were some truth in the applicant’s account of the local government’s intention to compulsorily acquire part of his family home, there is no credible evidence before me to suggest that there is a real risk that the applicant would face any kind of harm as a consequence should he return to China after seventeen years. Moreover, I consider that the fact that he applied for, and was issued with a passport in 2013 indicates that he does not fear, or face harm of any kind in China.

   74. In these circumstances, I am not satisfied, based on the information provided by the applicant, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to China, there is a real risk that he will suffer significant harm.

5. The grounds of the application are as follows:

   1. The Refugee Review Tribunal (RRT) failed to provide the applicant (me) with the opportunity to fully comment on the information for my claims.

   2. The Refugee Review Tribunal (RRT) failed to carry out its statutory duty in processing my review application.

   3. Department of Immigration and Border Protection (DIBP) failed to consider all the facts and supporting my claims for protection visa and my special circumstances in relation to my protection visa application. 

6. Insofar as ground 1 raises an issue under s.425 of the Act, it is clear that the applicant was invited to attend a hearing consistent with requirements of the Act and that the applicant did, in fact, attend the hearing. Insofar as ground 1 seeks to identify an alleged non-compliance with s.424A, it fails to identify any information said to fall within that provision and fails to disclose any arguable jurisdictional error.

7. I am not satisfied that there was any information of a kind that enlivened an obligation under s.424A, and I do not accept that the applicant has made out any breach of s.424A or s.424AA. There is no substance in relation to ground 1.

8. In relation to ground 2, it is clear that the Tribunal conducted a genuine hearing and complied with its duty to evaluate the applicant’s claims and evidence.  There is no substance in the assertion of a failure by the Tribunal to properly conduct the review.  Ground 2 is not made out.

9. Ground 3 appears to relate to alleged error by the delegate, which would not be capable of giving rise to any error by the Tribunal or jurisdictional error by the Tribunal.  It is clear, so far as the Tribunal is concerned, that the Tribunal addressed the applicant’s claims and the applicant’s circumstances, and ground 3 is, in substance, an impermissible challenge to the merits of the adverse finding by the Tribunal.  Ground 3 is not made out.

10. The applicant handed up a written submission seeking to identify reasons why the applicant should be allowed to remain in Australia and oral submissions delivered from the bar table to a similar effect.  Nothing said by the applicant from the bar table or in the written submission, which was marked as an exhibit, identify 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:  18 August 2015