AZE16 v Minister for Immigration

[2016] FCCA 1941

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZE16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1941

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protections (Class XA) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal’s decision was unsupported by relevant evidence – alleged bias – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 91R(1)(c), 91WA, 476

Applicant: AZE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1028 of 2016

Judgment of: Judge Street

Hearing date: 28 July 2016

Date of Last Submission: 28 July 2016

Delivered at: Sydney

Delivered on: 28 July 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Ms S Burnett
Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1028 of 2016

AZE16

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 4 April 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of China.  The applicant first arrived in Australia on 6 October 2011 and departed on 12 December 2012.  The applicant arrived again in Australia on 1 February 2013.  The applicant’s arrival was based on a student visa that had been granted to the applicant, and it was not until 19 December 2013 that the applicant applied for protection.

3. The applicant claimed to fear harm in China because he is an underground Catholic.  The applicant fears he will be arrested if he returns to China in connection with the death of a person whom he allegedly baptised before the person died. 

4. The applicant claims that in 2008, while returning from a religious pilgrimage to the white bishop in the Fujian province, he and a group of fellow believers were stopped by the police and taken to a nearby police station where they were interrogated.  The applicant alleges that his fellow believers identified him as the organiser of the pilgrimage and he was detained for a day.  The applicant alleges during the detention his arm was badly injured when police smashed a lock against him.  The applicant alleges the Fujian police contacted the applicant’s local police station about his detention. 

5. The applicant alleges that at the end of 2012 he returned to China for a seven-week holiday.  The applicant alleges that it was on this occasion that he baptised the person who died a short time later.  The applicant alleges that in a bid to extort money for funeral costs and compensation from the applicant the dead person’s family alleged the death was somehow related to the applicant.  The applicant alleges that the family of the person that had died visited the applicant’s home from time to time to harass and abuse his family.

6. The applicant alleges that in June 2013 his mother told him that the old man’s family had reported the applicant to the Public Security Bureau and that a case had been filed against him.  The applicant alleges that his mother had subsequently told him that the family of the dead person had filed a summons that he attend a particular Public Security Bureau.  The applicant said that the summons was issued to his mother. The applicant alleges that his mother told him that he has been involved in a murder charge, but did not tell him the details. 

7. On 29 April 2014, a delegate refused to grant the applicant a visa having found that the applicant did not have a well-founded fear of persecution.  The delegate was also not satisfied that Australia had protection obligations to the applicant because there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.

8. The applicant applied for review on 21 May 2014.  The applicant was invited to attend three hearings to give evidence and present arguments.  The applicant attended those three hearings on 6 January 2015, 23 February 2015, and 17 June 2015 and gave evidence and presented arguments. 

9. Prior to the third hearing the Tribunal sent to the applicant information in relation to s.91WA of the Migration Act 1958 that obliges the Tribunal to refuse to grant a protection visa if the applicant has provided a bogus document as evidence of his identity, nationality, or citizenship. The Tribunal noted, in their covering letter, that the applicant had provided evidence as to his identity, nationality, or citizenship using two different names. The Tribunal identified the relevant law and set out in detail the applicant’s claims and evidence and expressed serious concerns about the applicant’s credibility and whether he was telling the truth in relation to significant aspects of his claims. 

10. The Tribunal did not find the applicant to be a credible witness and was not satisfied he told the truth in relation to fundamental aspects of his claim regarding his experiences in China.  The Tribunal found, overall, that the applicant’s evidence was not persuasive, plausible or consistent.  The Tribunal found that the applicant had been untruthful in relation to his past dealings with the department. 

11. The Tribunal set out detailed reasons in support of the adverse credibility findings that were open on the material before the Tribunal.  The Tribunal found that it was not satisfied that the applicant had been truthful in his claims. 

12. It was in those circumstances that the Tribunal found that it was satisfied that the chance of any harm by any person to the applicant by reason of his Catholic religion was remote.  The Tribunal found there was no real chance that if the applicant returns to China he will be persecuted for one or more of the five Refugee Convention reasons.  The Tribunal found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to China there was a real risk he will suffer significant harm. 

13. The Tribunal accepted that the applicant had been served with a summons in respect of a crime that was not evident on the face of the summons. The Tribunal considered whether the issue of the summons in connection with a possible crime constitutes persecution for the purpose of the Convention, or whether it engages Australia’s complementary protection obligations. The Tribunal identified that the application of a non-discriminatory law did not constitute persecution and found that there is no evidence that the Chinese laws in the particular province were applied either discriminately or in a selective way. The Tribunal was not satisfied that the application of the Chinese laws to the applicant would involve systematic or discriminatory conduct as required under s.91R(1)(c) of the Migration Act 1958. 

14. The Tribunal took into account the applicant’s claims and found that there was no real chance that the applicant will be persecuted for any Convention reason or reasons if he returns to China now or in the reasonably foreseeable future, notwithstanding that he has been issued with a general summons to report to a particular location in connection with the possible commission of an unspecified crime. 

15. The Tribunal found that the applicant did not have a well-founded fear of persecution and did not satisfy the criterion under s.36(2)(a) of the Migration Act 1958. 

16. The Tribunal found that there were no 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 the applicant will suffer significant harm. The Tribunal, accordingly, is not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Migration Act 1958. 

17. The Tribunal proceeded to consider whether the grant of a visa was also prevented by s.91WA of the Migration Act 1958. That provision had commenced operation and was applicable to the determination of a visa application at the date of the decision by the Tribunal. The Tribunal identified that the question to be determined in this regard was whether any documents provided by the applicant were bogus documents within the meaning of s.5(1) of the Migration Act 1958. 

18. The Tribunal found that the applicant provided a bogus document on his initial arrival in Australia on 6 October 2011. The Tribunal also found that the applicant provided a bogus document on his most recent arrival in Australia on 1 February 2013. The Tribunal found that the bogus documents were documentary evidence as to his identity, nationality or citizenship for the purpose of s.91WA(2)(b)(i) of the Migration Act 1958. 

19. The Tribunal identified that it then had to consider whether there was a reasonable explanation for the applicant providing the bogus documents. The Tribunal found that the applicant did not have a reasonable explanation for providing the bogus documents on his arrival in Australia. It was on these circumstances the Tribunal found, consistent with s.91WA of the Migration Act 1958, the Tribunal must refuse to grant the applicant a protection visa if he had otherwise been entitled to the same. 

20. On 9 June 2016 the Registrar of the Court fixed the matter for hearing and provided the applicant with an opportunity to file an amended application outlining evidence and submissions.  No such documents were filed. 

21. At the commencement of the hearing the Court explained to the applicant that the matter was fixed for a final hearing, and that the hearing was to determine whether or not the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that, in summary, this meant the Court was determining whether the Tribunal’s decision was lawful, or whether the Tribunal’s decision was fair.  The Court explained that if satisfied the Tribunal’s decision was effected by relevant legal error, it would set aside the decision of the Tribunal and send it back for further hearing.  The Court explained that if not satisfied that the Tribunal’s decision was affected by relevant legal error, it would dismiss the application.  The applicant confirmed that he understood what had been said by the Court. 

22. The Court explained that it would have identified the evidence and then hear submissions from the applicant, and then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply.  The applicant confirmed he understood what had been said by the Court.

23. The grounds of the application are as follows: 

    1. The Tribunal failed to afford procedural fairness.

    2. The Tribunal made a finding without supporting evidence. Namely, the Tribunal denied the applicant credibility by inferring from his lack knowledge of the open letter to China's Catholics by Pope Benedict XVI.

    3. The Tribunal failed to consider the matter objectively, but rather rely upon the member's personally subjective opinion.

24. From the bar table the applicant made reference to the Tribunal’s alleged request for information, and that the applicant had provided a summons to the Tribunal which the applicant contended the Tribunal had said was a fake. The Tribunal’s reasons do not support that contention. The Tribunal’s reasons treat the summons to the applicant as genuine.

25. The applicant also raised that he disagreed with alleged inconsistencies that had been raised by the Tribunal Member with the applicant.  No transcript has been tendered, and the Tribunal Member was entitled to raise inconsistencies and test the applicant’s credit.  The applicant also raised an issue about the Tribunal sending him his passport.  There is a reference in the Tribunal’s decision to the Tribunal asking the applicant for his identity card, and the Tribunal accepted the applicant’s identity by reference to that card.  Nothing said by the applicant from the bar table identified any jurisdictional error.

26. In relation to the grounds in the application, ground 1 is a generalised allegation of denial of procedural fairness.  It is apparent from material before the Court that the applicant was invited to, and attended, three hearings before the Tribunal, and that the applicant had a genuine and meaningful opportunity to present his claims and evidence.  On the face of the material before the Court the Tribunal complied with its statutory obligations in the conduct of the review, and there is no material before the Court to establish that the Tribunal failed to comply with the requirements of procedural fairness.  Ground 1 fails to make out any jurisdictional error.

27. In relation to ground 2, the Tribunal identified evidence in support of its findings.  It was open to the Tribunal to make findings in relation to the applicant’s credit.  The adverse findings in relation to the applicant’s credit were not based on his knowledge of an open letter.  The adverse findings as to credibility reflected unorthodox reasoning by the Tribunal which included the applicant’s provision of false documents to the department and included the delay by the applicant in seeking protection. The adverse credibility findings cannot be said to lack an evident and intelligible justification. Ground 2 fails to make out any jurisdictional error.

28. In relation to ground 3, there is nothing before the Court to support the assertion that the Tribunal applied a personal subjective opinion.  The Tribunal’s reasons, and the material before the Court, are consistent with a proper and lawful review. To the extent that ground 3 raises an allegation of bias, this must be clearly alleged and properly proven. No case of bias is made out. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair, independent and impartial mind to the determination of the matter on its merits.  There is no proper basis to support the allegation made of a subjective opinion in ground 3.  Ground 3 fails to make out any jurisdictional error.

29. The Court also notes that in light of the further adverse finding made by the Tribunal under s.91WA of the Migration Act 1958, there is a separate and independent reason why the applicant is precluded from the grant of a visa. The Tribunal’s reasons in relation to that independent ground were open on the material before the Tribunal, and it is apparent that the Tribunal complied with the requirements of procedural fairness and gave the applicant an opportunity to be heard on the issue raised by s.91WA of the Migration Act 1958. There was no jurisdictional error by the Tribunal in relation to its finding under s.91WA of the Migration Act 1958. That provision was found to have application to the applicant and the grant of a protection visa is precluded by that provision.

30. The Tribunal’s decision is not affected by any jurisdictional error.  The application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 August 2016