AVX15 v Minister for Immigration

[2015] FCCA 3012

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3012

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

Legislation:

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

Applicant: AVX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1442 of 2015

Judgment of: Judge Street

Hearing date: 9 November 2015

Date of Last Submission: 9 November 2015

Delivered at: Sydney

Delivered on: 9 November 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms S Given
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1442 of 2015

AVX15

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 1 May 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 claim for protection and complementary protection were assessed against that country. The applicant arrived in Australia on a subclass 600 visitor visa on 11 November 2013 and applied for protection on 7 February 2014.

2. On 13 June 2014, the delegate refused an application for a protection visa and the applicant applied for a review before the Tribunal.  By a letter dated 25 March 2015, the Tribunal invited the applicant to appear at a hearing on 28 April 2015.  The applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent. 

3. The applicant claimed to fear harm from his former employer and the police.  The applicant claimed he worked at a furniture factory and that his employer failed to pay wages for several months and the applicant claimed he organised approximately 160 people to protest.  The applicant alleged he was subsequently assaulted, arrested and detained by his former employer and the police.  The applicant claimed that he was later alleged to be the leader of the riot and was interrogated by the police until he confessed and was transferred to the Ouhai Detention Centre. 

4. The applicant claimed that he was released on bail for medical treatment after his wife bribed the police and he was required to report to the Ouhai Public Security Bureau twice a week.  The applicant further claimed that since he left China, he has been regarded as a person who fled to escape punishment and the applicant says he will be subjected to persecution on his return.  From the bar table, the applicant said he cannot return to China and wanted the protection of the law. 

5. On 16 July 2015, a Registrar of the Court fixed the matter for hearing today and made orders providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  No such documents were filed.  The application identifies under the grounds of the application the following grounds:

   1, I am a Chinese citizen. I have been persecuted and discriminated by Chinese authority and have a fear of return to origin.

   2, I will be in a great danger if I am forced to leave Australia.

   3, RRT unreasonable suspect of the truthfulness of my claims

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

6. The application also discloses what appear to be grounds under Orders Sought:

   1, I don't think DIAC and RRT's decision are fair and reasonable as they failed to take a good consideration in my claim, ignoring my background and actual persecution in China.

   2, RRT failed to prudently consider my risk if I return to origin.

   3, RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

7. The Tribunal found the applicant was frequently evasive and vague, and various aspects of his evidence were confused and inconsistent.  Having considered all of the evidence, the Tribunal did not accept the applicant was a truthful witness or that he had been truthful in his account of his experiences in China and the reasons for leaving China.  The Tribunal found that the applicant’s claims had been fabricated, relevantly, in paras.18 and 22:

   18. The Tribunal considers that the applicant’s evidence as set out above in relation to his involvement in the dispute is unpersuasive. As discussed during the hearing, the Tribunal accepts that there have been cases of workers in factories in China who have been the victims of unscrupulous employees. However, the evidence which was discussed with the applicant both during the Department interview and the Tribunal hearing indicates that major changes have been made to industrial relations laws to regulate both public and private companies. These laws have provided mechanisms for dispute resolution and arbitration processes. The Tribunal considers that the applicant’s evidence that he was elected to be the employee advocate of 160 people, in circumstances where he had only joined the company some 14 months before that time; where he had no knowledge of his own employment basis or contractual obligations; and made no attempts to make inquiries in relation to mechanisms for resolving such disputes, is not credible. The Tribunal accepts that the applicant may not have known about avenues for dispute resolution at the time the company initially failed to pay wages, but does not accept that someone who was elected to be the representative of a large group of people who was considering protesting about the failure of the organisation to pay its workers, would have not made inquiries regarding mechanisms for workplace dispute over the course of several months when the workers were not paid. The Tribunal further considers that the applicant’s evidence during the hearing, indicating that he had no knowledge of the amount of money owed to the factory’s employees either when he organised them to protest or when the company closed, is also not credible. The Tribunal does not accept that a person who was organising a protest in relation to unpaid wages would make no attempts to determine the amount of money owed by the company to its employees who had purportedly not been paid for several months, or that a person who knew nothing about workplace wage disputes would be elected the leader of a large group of people. The Tribunal does not accept the applicant’s explanation for why he would not have made inquiries in relation to this issue; why he would have failed to make inquiries into workplace laws or dispute resolution processes for persons who were owed wages by their employee; or why he would be elected as the representative of a large group of employees. The Tribunal considers that the evidence in relation to this issue is indicative of the fact that the applicant’s claims have been fabricated.

   …

   22. Although the Tribunal accepts that an interview and hearing are stressful processes, the Tribunal does not accept the applicant’s explanation for his “confusion” in relation to the date of his release from detention. The applicant has claimed to have been detained on only one occasion in China. The Tribunal does not accept that he would be unable to recall the date on which he was purportedly released on “medical grounds”. The Tribunal considers that the evidence in relation to this issue is further indicative of the fact that the applicant’s claims have been fabricated.

8. It was in those circumstances that the Tribunal made the following findings:

   27. … The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reasons of his actual or imputed political opinion or for any other Convention reason if he returns to China now or in the reasonably foreseeable future. The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution in China.

9. The Tribunal then turned to the issue of complementary protection and relevantly found:

   28. …For the same reasons as discussed above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm as a result of the reasons he has claimed.

10. It was in those circumstances the Tribunal found the applicant was not a person in respect of whom Australia had a protection obligation and that the applicant did not satisfy the criteria under ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958.

11. In relation to ground 1 identified in the application, I accept the first respondent’s submission that this is, in substance, an impermissible challenge to the adverse findings made by the Tribunal and does not disclose any jurisdictional error. 

12. In relation to ground 2, this fails to identify any jurisdictional error and again is an impermissible invitation for the Court to consider the merits of the application which were a matter for the Tribunal. 

13. In relation to ground 3, it was a matter for the Tribunal to evaluate the credit of the applicant and it cannot be said that the adverse findings of credit lack an evident and intelligible justification.  The Tribunal provided a reasoned basis on the evidence before it that supported the findings.  Ground 3 fails to identify any jurisdictional error.

14. In relation to ground 4, insofar as it advances an allegation of bias, that is a ground that must be clearly alleged and properly proved.  No such allegation of bias is proved.  To the extent that there is a reference to the over-objective judging, that appears to be a reference to the adverse findings.  Adverse findings are not a proper basis upon which an allegation of bias can be made out.  Further, no fair minded lay observer, by reason of the adverse findings, might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of the matter on its merits.  Ground 4 fails to make out any jurisdictional error.

15. In relation to the orders sought, insofar as prayer 1 refers to the delegate, the conduct of the delegate is not a basis upon which jurisdictional error can be made out before this Court.  Insofar as there is reference to the Tribunal, the generalised assertion that the decision was not fair and reasonable fails to make out any jurisdictional error.  It is clear that the Tribunal took into account the applicant’s evidence but did not accept the applicant. 

16. It is clear that the Tribunal took into account the applicant’s evidence and background and claims and made adverse findings dispositive of the applicant’s claims.  Prayer 1 of the orders sought fails to make out any jurisdictional error.

17. Prayer 2 of the orders sought is again an impermissible challenge to the adverse findings of the Tribunal and fails to make out any jurisdictional error.  Prayer 3 of the orders sought asserts a failure to consider the applicant’s statements, explanation and evidence which is clearly contradicted by the reasons of the Tribunal.  Relevantly, the Tribunal in paras.5 to 10, and paras.15 to 26 engaged in a careful review of the evidence.  Prayer 3 of the orders sought fails to make out any jurisdictional error. 

18. Nothing said by the applicant identified any basis upon which there could be said to be a jurisdictional error by the Tribunal.  The application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 November 2015