ATJ15 v Minister for Immigration

[2015] FCCA 2229

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATJ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2229

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether applicant was a genuine Falun Gong practitioner – whether applicant had a genuine hearing – whether adverse findings of credit were open to the Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: ATJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1319 of 2015

Judgment of: Judge Street

Hearing date: 17 August 2015

Date of Last Submission: 17 August 2015

Delivered at: Sydney

Delivered on: 17 August 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr M J Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document 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 1319 of 2015

ATJ15

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 of the Tribunal made on 21 April 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant arrived in Australia on 12 August 2001 as the holder of a subclass 676 tourist visa.  The applicant lodged an application for protection on 24 August 2001, which was refused on 23 October 2001.  The applicant sought a review before the Tribunal, which affirmed the delegate’s decision on 10 October 2002.  It appears the applicant then sought judicial review, which must have unsuccessfully concluded in about January 2005 because the applicant continued to unlawfully reside in Australia from January 2005 until December 2013.

3. On 15 November 2013 the applicant lodged a second application for a protection visa on complementary grounds consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. That application was rejected by the delegate on 19 May 2014, and the applicant sought a review before the Tribunal in respect of which the applicant received a letter dated 5 February 2015 inviting the applicant to attend a hearing on 8 April 2015 consistent with the statutory regime.

4. The applicant appeared before the Tribunal on 8 April 2015 to give evidence and present arguments and was assisted by an interpreter.  The applicant claimed fear of harm if returned to China, which was found to be her country of citizenship, and against which her claimed fear of persecution were assessed on the basis of her Falun Gong activities.  The applicant was found by the Tribunal not to be a witness of credit, and detailed reasons were provided for the adverse findings as to credit of the applicant in relation to her credit.

5. Relevantly, the Tribunal found:

   36. The Tribunal does not find that the applicant ever practised Falun Gong in China, in Australia, or at all.

   37. The Tribunal is not satisfied that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that she will suffer significant harm.

6. It was in these circumstances the Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations, and that the criteria under s.36(2)(aa) had not been made out, and there was no basis for any other obligation owed to the applicant. 

7. The application identified the following grounds

   1. I disagree with Immigration and RRT's 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

8. The applicant submitted orally that the Tribunal had not considered the impact of her return, that it had been such a long time since she had been there, and that the Tribunal had failed to properly consider her fear of persecution.  The first respondent submitted that what was said orally by the applicant was in substance seeking to take issue with the merits of the application, which was the domain of the Tribunal.  I accept the first respondent’s submission. 

9. The applicant raised orally that she will not be able to get a job.  Nowhere in the statement provided in support of the application for protection on complementary ground, or in the delegate’s summary, or in the summary by the Tribunal does it appear that any such ground was raised by the applicant.  I do not accept that the applicant raised any such issue as part of the fear of a real risk that she would suffer significant harm if returned to China or that such a claim should have been apparent to the Tribunal in its review. Accordingly this issue of being able to get a job was not an integer, or claim that the Tribunal was required to address in its review.

10. I am satisfied that the applicant had a genuine hearing, and the Tribunal properly considered the claims advanced by the applicant and her evidence. I am satisfied that the adverse findings of credit were open on the material before the Tribunal, and that the adverse findings cannot be said to lack an evident and intelligible justification.  Nothing said by the applicant from the bar table identified any proper basis upon which the Court could find there had been any jurisdictional error.  In relation to the three grounds raised in the application the Court notes that on 18 June 2015 orders were made giving the applicant the opportunity to file an amended application, affidavit evidence and submissions, and that no such documents were filed by the applicant.

11. Ground 1 seeks to cavil with the adverse finding of the Tribunal.  It was a matter for the Tribunal to determine whether it accepted the applicant was a genuine Falun Gong practitioner.  The adverse findings were open on the material before the Tribunal and ground 1 fails to disclose any jurisdictional error.  Ground 2 is also an impermissible challenge to the adverse findings of the Tribunal and does not disclose any jurisdictional error.  In relation to ground 3, it was a matter for the Tribunal to assess the applicant’s credit, and it cannot be said that the adverse credit findings lack an evident and intelligible justification. It was open on the material before the Tribunal to make an adverse finding in relation to the applicant’s credibility and the adverse findings have a logical foundation. 

12. The application fails to identify any jurisdictional error.  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:  19 August 2015