BBV16 v Minister for Immigration

[2016] FCCA 2394

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBV16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2394

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – show cause hearing – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Federal Circuit Court Rules 2001, r.44.12.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BBV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1142 of 2016

Judgment of: Judge Street

Hearing date: 13 September 2016

Date of Last Submission: 13 September 2016

Delivered at: Sydney

Delivered on: 13 September 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Gawidziel
Australian Government Solicitor

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1142 of 2016

BBV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 April 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of China.

2. On 3 January 2014, the applicant applied for a Visitor, Tourist Stream (Offshore) (FA 600) visa, which was granted on 10 January 2014. On 10 February 2014, the applicant arrived in Australia. It was not until 30 April 2014 that the applicant lodged an application for protection.

The Delegate’s Decision

1. The applicant claims to fear harm on the basis that he will be forcibly sterilised on account of breaching the one-child policy if he returns to China.

2. The applicant failed to attend the scheduled interview before the delegate on 15 December 2014. The delegate was not satisfied of the applicant’s claims and dismissed them in their entirety. The delegate was not satisfied that the applicant fears harm if returned to China for any Refugees Convention reason. The delegate was not satisfied that the applicant’s fear was well-founded and was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason.

3. The delegate was also not satisfied that there were reasonable 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 non-citizen will be subjected to significant harm.

The Tribunal’s Decision

1. On 15 January 2015, the applicant applied for review. By letter dated 29 February 2016, the applicant was invited to attend a Tribunal hearing on 3 May 2016. The applicant appeared on that date to give evidence and present arguments. The Tribunal identified the relevant law, as well as setting out the applicant’s claims and evidence.

2. The Tribunal found that the applicant’s claims about why he left China were not credible. The Tribunal did not accept the applicant’s claims that he fled China to avoid being forcibly sterilised. The Tribunal found that the applicant was of no interest to Chinese authorities for any reason at the time he left China. The Tribunal did not accept that the applicant had been harmed, or threatened, or otherwise mistreated in China in the past as a result of his wife falling pregnant with a second child, or that he left China because he was afraid of being forcibly sterilised.

3. The Tribunal did not accept that there is a real chance that the applicant would be forcibly sterilised or otherwise mistreated or harmed in any way if he was returned to China. The Tribunal did not accept that the applicant has a well-founded fear of being persecuted for a Refugee Convention reason if he returns to China now or in the reasonably-foreseeable future.

4. The Tribunal also did not accept that 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 the applicant will suffer significant harm for the purpose of s.36(2)(aa) of the Act. The Tribunal found that the applicant did not satisfy the criteria of s.36(2) of the Act and affirmed the decision of the delegate.

Proceedings Before This Court

1. On 30 June 2016, a Registrar of the Court fixed the matter for a show cause hearing and gave the applicant an opportunity to file an amended application, affidavit evidence, and submissions. At the commencement of the hearing, the Court explained to the applicant that a show cause hearing, under r.44.12 of the Federal Circuit Court Rules 2001, was a hearing to determine if the applicant had an arguable case. The Court explained that the applicant had an arguable case if he had a reasonable argument that the Tribunal’s decision was affected by legal error. The Court explained that the legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

2. The Court explained that if satisfied there was a reasonable argument that the Tribunal’s decision was affected by legal error, the matter would be fixed for hearing on another occasion. The Court explained that if not satisfied that the Tribunal’s decision was the subject of a reasonable argument that it was affected by legal error, it would dismiss the application. The Court explained that, in summary, it was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful or a reasonable argument that the Tribunal’s decision was unfair.

3. The Court explained to the applicant that it would identify the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The grounds of the application are as follows.

   On 4th Jan. 2014 we had a son. But we did wsnt to have a daughter.In Sep. 2013 my wife felt pregnant and went into hiding with her coursin.

   • Unfortunately, my wife was located by the authorities and forced to have an abortion on 4th Nov. 2013.

   • Ater that, I was forced to have the surgical sterilisation.

   • My wife and family all didn't want o see this happen so the only option was for me to hide overseas untill there was a change of policy.

   • The member of Tribunal said: “ I have found that there is no real chance that the applicant will be forcibly sterilisation or face harm of any type of if he returns to China.: {in No.28 paragraph of the decision of Administration Appeals Tribunal.}. I think the member's view is wrong because it is the China policy of “One Family One Child” that if the wife was forced for an abortion, her husband must be forced to have surgical sterilisation. The member didn't know the China policy of “One Family One Child
   “,which led the member making judictional error.

   (errors in original)

5. The grounds of the application are in substance, a restatement of the applicant’s claims and fail to identify any jurisdictional error. From the bar table, the applicant submitted that the decision of the Tribunal was unfair and that as Australia is a democratic country, he considered that the decision was not correct.

6. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. I am satisfied on the material before the Court that the applicant had a genuine hearing. On the material before the Court, there is nothing to establish that the Tribunal failed to comply with its obligation of procedural fairness in the conduct of the review. In substance, the applicant’s submissions from the bar table were an impermissible invitation inviting this Court to review the merits of the matter. This Court has no jurisdiction to review the merits. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

7. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that it is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 September 2016