BAH15 v Minister for Immigration

[2015] FCCA 3120

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAH15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3120

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal’s findings are supported on the material before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48, 476

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

First Applicant: BAH15

Second Applicant: BAI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1603 of 2015

Judgment of: Judge Street

Hearing date: 23 November 2015

Date of Last Submission: 23 November 2015

Delivered at: Sydney

Delivered on: 23 November 2015

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Mr R White
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1603 of 2015

BAH15

First Applicant

BAI15

Second 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 in the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 19 May 2015, affirming a decision of the delegate not to grant the applicants protection visas.

2. Both applicants were found to be citizens of China, and their claims were assessed against that country.  Both applicants had made earlier applications for protection but had been refused.  Both applicants were seeking to advance a further claim for protection on complimentary protection grounds under s.36(2)(a), consistent with the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71.

3. Both applicants have a reasonably extensive migration history.  The first applicant claims to have departed China to accompany her son to Singapore on 23 December 2004, where she says she remained until 19 June 2010.  The first applicant applied for a tourist visa on 15 November 2005 which was refused. 

4. On 18 October 2006, the first applicant applied for a temporary work (skilled) visa which was refused.  On 18 May 2010, the applicant applied for a further (subclass 676) tourist visa.  On 21 May 2010 that tourist visa (subclass 676) was granted.  On 20 June 2010 the applicant arrived in Australia on the (subclass 676) tourist visa. 

5. On 16 July 2010, the first applicant applied for protection and was granted an associated Bridging visa A (Subclass 010).  On 5 October 2010 the application for protection was refused.  On 18 October 2010 the first applicant sought review before a Tribunal, and on 30 November 2010 the Tribunal affirmed the refusal by the delegate.  The first applicant then became an unlawful citizen on 28 December 2010 after the Bridging visa ceased. 

6. On 17 September 2013 the first applicant was located and detained. On 20 September 2013 the first applicant lodged a further application for protection. On 23 September 2013 the first applicant also sought ministerial intervention. The first applicant’s application for protection was refused on 25 September 2013. The first applicant’s request under s.48 of the Act was not referred on 1 October 2013. On 4 October 2013 a Tribunal affirmed the refusal of the delegate. It was on 16 October 2013 that a further protection visa was lodged by the first applicant.

7. The second applicant arrived in Australia on 5 May 1998 as the holder of a fraudulently obtained Singapore passport under a different name.  On 15 June 1998 the second applicant applied for protection, which application was refused on 17 June 1998 and affirmed by a Tribunal on 7 January 1999.  The second applicant unsuccessfully sought ministerial intervention.  On 4 August 1999 the second applicant became an unlawful person in Australia. 

8. The second applicant made a further ministerial intervention request on 16 July 2010 which was the subject of a non-referral on 31 August 2011.  On 17 September 2013 the second applicant was located and detained.  On 16 October 2013 the second applicant made a further application for protection.  The second applicant is included as a dependent member in the application for protection by the first applicant. 

9. The first applicant’s claims are, effectively, that she had been introduced to Christianity and that there was not religious freedom in China and that there was a denial there of human rights.  The applicants also claimed that they wanted to have a second child, but the one-child policy in China prevented them already, because they had a son.  The applicants claimed a fear of harm if they had a second child. 

10. The delegate found the applicants were not credible and refused to grant the protection visa.  The Tribunal identified overwhelming credibility concerns regarding the second applicant’s identity, but, nonetheless, found both applicants were nationals of China. 

11. In relation to the second applicant’s fears in respect of conversion to Christianity, the Tribunal relevantly found: 

    75. Given the applicant’s evidence that she is not baptised, that she added a little bit about Christianity, and her later evidence that she is Buddhist, indication that Christianity is not her religion, and indication that in any case, the applicants do not fear persecution in the PRC for religious reasons as the applicant expressed in her own words that in relation to Christianity or religious reasons in their view was that it is quite open in the PRC so they do not really have any concerns in relation to religion. 

    76. The Tribunal finds that on the evidence before it that there is no real chance that the applicants would face persecution in the PRC for reasons of religion.

    77. Further, on the evidence before it, noting the applicants both entered and exited the PRC without difficulty, and in the case of the primary applicant travelled to and from the PRC extensively given the evidence set out above on entry and exit procedures in the PRC finds that the applicants are not of adverse interest to the authorities in the PRC for any Convention or any other reason.

12. In relation to the first applicant’s claims concerning a second child, the Tribunal relevantly found: 

    84. Finally, the One Child Policy and laws apply throughout China. The Tribunal considers this to be a law of general application in China. In doing so, it has had regard to whether the law itself is discriminatory in its terms/intent; whether it has a discriminatory impact on members of a group recognised by the Convention; whether it is enforced in a discriminatory way; and whether it is ‘appropriate and adapted to achieving some legitimate object’. The Tribunal finds on the evidence that there is no real chance that the application of the policy in the circumstances of these applicants would involve discriminatory enforcement of the law such as to amount to Convention-related persecution.

    85. … The Tribunal further finds that the application of this law of general application in the circumstances of these applicants would not of itself amount to persecution. The Tribunal finds that the payment of the fine, which can be paid in instalments would not amount to persecution for a Convention reason.   The Tribunal finds that given an absence of evidence of the practice of sterilisation in Fujian that there is no real chance that the applicant’s would face such extreme measures were they to return to the PRC. 

    86.    The Tribunal finds accordingly that there is no real chance that the applicants would face persecution for a Convention reason for breach of family planning regulations in China.  

    87.    The Tribunal has also considered whether there are 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 they will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal has had regard to the evidence and claims put forward by the applicants, including claims relating to religion and family planning and their ability to support themselves in the PRC.  The Tribunal finds that there are not substantial grounds for believing that the applicants would face significant harm at the hands of any potential agents of harm in the PRC.  The Tribunal does not accept that there is a real risk the applicants would suffer significant harm, of a risk to their life, of torture, of cruel or unusual or degrading treatment or punishment if they returned to China. Therefore the Tribunal does not accept that there is a real risk the applicants will suffer significant harm in the PRC. The Tribunal is not satisfied on the evidence, that a real risk of significant harm exists for the applicants. The Tribunal does not accept that the applicants are persons to whom Australia has protection obligations under paragraph 36(2)(aa) of the Act. 

13. The grounds of the application are as follows:  

    1. The First Respondent did not attempt to make consideration in relation to all the claims relating to religion in particular.

    2. The First Respondent took only the interview outcome with the Applicants into the account and not all relevant consideration in making determination.

    3. The Second Respondent failed to exercise discretion and did not take into account of all relevant considerations in respect of the applicants claim in relation to their fear against their safety due to return to the PR (China) as stated in paragraphs 54 to 55; 59 to 61 and 68 to 87, respectively in their determination, and paragraph 87 explicitly sets out the bias against the applicant's claims relating to religion and family planning; 'the full blanket' rejection of all these claims denied the applicants natural justice or procedural fairness in making the determination. The Second Respondent failed to take full and due consideration of the evidence provided before and during r the hearings.

    4. In Paragraph 25 to 35, in particular to paragraphs 25, 28, 34 and 35, the second Respondent denied the applicants natural justice or procedural fairness in making determination whilst maintaining that the applicant's claims of the consequences for herself and the children are not accepted. In so doing, the second respondent did not give proper consideration as to the particular financial circumstances and hardship that the applicants have found themselves into, the real threat and harm against them and particularly towards the children on their return to the country of origin (as reflected prominently in paragraphs 81, 82 and 85 - 87 in the determination).

    5. There was no evidence to support finding in paragraphs 79, 83 and 86 in the determination of the second respondent that the due consideration being taken of the factors raised by the applicant in the hearings and in her submission made earlier (to both the First Respondent and the second respondent);

14. This is a matter which was fixed for hearing by orders of a Registrar of the Court on 23 July 2015, and the applicants were given an opportunity to file an amended application, affidavit evidence and put on submissions.  No such documents were filed.  

15. In relation to ground 1, it is clear that the Tribunal took into account the first applicant’s claim relating to religion.  The Tribunal noted the first applicant’s evidence that she was a Buddhist and that Christianity was not her religion.  The adverse findings by the Tribunal in relation to the first applicant’s claims concerning religion were clearly open.  Ground 1 fails to make out any jurisdictional error. 

16. In relation to ground 2, it is clear from the Tribunal’s reasons that the Tribunal did not confine its analysis of the applicants’ claims and evidence to the interview with the applicants.  I note that the Court has treated grounds 1 and 2 as if referring to the second respondent as an error by the first respondent can give rise to no jurisdictional error. 

17. By letter dated 29 January 2015 the applicants were invited to give evidence and present arguments at a hearing to be held on 14 May 2015.  The applicants appeared on that date to give evidence and present arguments and were assisted by an interpreter as well as their registered migration agent.  There are no relevant circumstances that were identified that the Tribunal failed take into account.  Ground 2 fails to make out any jurisdictional error. 

18. In relation to ground 3, there is, again, no identified factor or matter that it is alleged the Tribunal failed to take into account.  Insofar as bias is alleged, bias must be clearly alleged and properly proved.  No case of bias is proved.  To the extent that the applicant identifies adverse findings in respect of the applicant’s claims and evidence, that is not a basis upon which bias can be made out.  The adverse findings by the Tribunal in relation to the applicants’ claims relating to religion and family planning and rejection of those claims are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits. 

19. Further, the finding by the Tribunal rejecting the applicant’s claims does not give rise to a denial of natural justice or a denial of procedural fairness.  It is clear that the Tribunal engaged in a thorough analysis of the applicant’s claims and gave comprehensive reasons for the rejection of the applicant’s claims.  No jurisdictional error is made out by ground 3. 

20. Ground 4 is, in substance, an admissible endeavour to take issue with the merits of the matter which were for the Tribunal to determine.  The adverse findings in relation to the applicants’ claims were clearly open on the evidence, and there is no substance in the assertion of a denial of natural justice or denial of procedural fairness by reason of the adverse determination of the applicants’ claims.  Ground 4 fails to make out any jurisdictional error. 

21. In relation to ground 5, it is clear that there was evidence to support the adverse findings, and ground 5 appears to be a further impermissible challenge to the adverse findings made by the Tribunal.  For the reasons given, ground 5 fails to make out any jurisdictional error.  Nothing was said by the applicants from the bar table to identify any jurisdictional error. 

22. There being no jurisdictional error made out, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 November 2015