Bba15 v Minister for Immigration

[2015] FCCA 3129

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBA15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3129

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – whether the Tribunal’s findings in relation to credit were open on the materials – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal failed to fully address the applicant’s claims and evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: BBA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1634 of 2015

Judgment of: Judge Street

Hearing date: 24 November 2015

Date of Last Submission: 24 November 2015

Delivered at: Sydney

Delivered on: 24 November 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms B. Rayment
Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1634 of 2015

BBA15

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 20 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a national of China and that was the country of reference for the purpose of the refugee protection claim as well as his receiving country for the purpose of assessing complementary protection claims.

2. Of material significance in this case is the fact that the applicant arrived in Australia on 7 July 2007 on a TU 571 student visa that was granted on 25 June 2007 and was valid until 23 July 2007. The applicant lodged a further TU 571 visa on 19 July 2007, which was granted until 23 July 2007 and was valid until 15 March 2010. The applicant then became an unlawful person in Australia and did not apply for protection until 23 October 2013. It was in those circumstances that the applicant was found by the Tribunal not to be a credible witness.

3. The applicant’s claims concerned an alleged indebtedness of his father from gambling debts, which it was alleged would be pursued against the applicant. The applicant also alleged that debt collectors had improperly obtained and sold a unit that had belonged to him in China. The applicant also alleged he feared his father would beat him and that he would be pursued for his father’s debts. The Tribunal accepted that the applicant’s father had accumulated gambling debts and was an alcoholic, but rejected the applicant’s suggestion that he would be pursued in respect of his father’s gambling debts.

4. The Tribunal rejected the applicant’s material claims as being exaggerated, if not fabricated.  The Tribunal rejected the applicant’s claim concerning his fear of his father.  The Tribunal also did not accept the applicant was a credible witness in relation to the ownership of the property in China and did not accept the assertion that the property had been improperly sold.

5. On 23 July 2015, a Registrar of the Court made orders fixing the matter for hearing and providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  The grounds of the application are as follows:

   1. The Tribunal erred in arrive at a conclusion without supported evidence.

   Particulars:

   a) At paragraph 14, the Tribunal concluded that the applicant has been working given the applicant's allegedly impoverished circumstances and therefore it came to conclusion that the applicant was not a generally credible witness.

   b) At paragraph 27, the Tribunal arrived to the conclusion that the applicant has disposed of his property to meet his debt in Australia. The Tribunal has not found any evidence that the applicant has owed substantial debt in Australia and The Tribunal has not provided any evidence on the applicant has ability to dispose of the property when the applicant has been in Australia for almost 8 years.

   2. The Tribunal failed in taking into account of relevant consideration.

   Particulars:

   At paragraph 31, the Tribunal did not consider that due to the control of household registration and the corrupt official, the applicant residence is quite easily to be located.

   3. The Tribunal failed to consider all of the applicant's case.

   Particulars

   At paragraph 14, the Tribunal concluded that the applicant has been working all the time. In other words, the applicant has income to support himself.

   On contrary at paragraph 27, the Tribunal inferred that the applicant has debts in Australia.

   If the applicant has been working to support himself as the Tribunal said, then the applicant should not have debt incurred.

6. In relation to ground 1, it was clearly a matter for the Tribunal as to whether it accepted the applicant’s assertion that he had not been working. In the circumstances where the applicant had no family in Australia the adverse finding by the Tribunal in that regard cannot be said to lack in evidence an intelligible justification. The adverse finding in relation to the applicant’s credit in respect of his assertion that he had not been working, was clearly open, logical and reasonable. In relation to the unit, the Tribunal was prepared to accept the property as being owned by the applicant in China, and the finding that the property had been sold was open upon the evidence before the Tribunal. It was open to the Tribunal to find that it had not been illegally transferred and it was open to the Tribunal to find that the proceeds had probably been used by the applicant to support himself in respect of his alleged debts in Australia given his intention to remain in Australia.

7. The adverse findings by the Tribunal in paras.14 and 27 are findings that were open on the material before the Tribunal.  Ground 1 fails to make out any jurisdictional error. 

8. In relation to ground 2, the reference by the Tribunal to the fact that the applicant could reside in a particular location without a real chance of him even being detected by his father was in the context of a finding made by the Tribunal that rejected his claim that he would be subject to serious or significant harm by his father.  This was an adverse finding that was open on the material before the Tribunal and the reference to the possibility of household registration and corrupt officials by reason of which the applicant could be located, is, in substance, an impermissible challenge to the adverse finding of the Tribunal.  There was no relevant consideration that the Tribunal failed to take into account.  Ground 2 fails to make out any jurisdictional error.

9. In relation to ground 3, the Tribunal gave comprehensive reasons for rejecting the applicant’s claims and there was no claim that the Tribunal failed to address. Further, there was no illogicality in the findings of the Tribunal. Ground 3 fails to make out any jurisdictional error.

10. From the bar table, the applicant asserted that the Tribunal made findings without any evidence. That contention clearly lacks substance. The adverse findings in relation to the applicant’s credit were open on the material before the Tribunal, including the credit concern arising from the failure of the applicant to make any application for protection having arrived in Australia in 2007 and then having become an unlawful person for a period of almost two years before applying for protection. The reference by the applicant to the proposition that he was poor and the Tribunal’s findings about the fact that he had been working do not identify any jurisdictional error.

11. It was clearly open to the Tribunal to make the findings as to the applicant’s lack of plausibility in the assertion that he had not been working in the period he had been an unlawful person in Australia.  The Tribunal did not find, as the applicant suggested from the bar table, that he has been forced to sell his unit, rather the Tribunal found that the unit had probably been disposed of and that the proceeds had probably been used by the applicant for his own benefit.

12. The Tribunal rejected the contention that it was improperly sold. Those findings were open and there is no unreasonableness or lack of logic in the findings made relating to the unit or the applicant’s employment. It was a matter for the Tribunal to make findings in respect of the applicant’s claim concerning his father. The applicant’s assertion that the applicant could be found is, in substance, an impermissible challenge to the adverse finding of fact by the Tribunal. Nothing said by the applicant from the bar table identified 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:  25 November 2015