BBX16 v Minister for Immigration
[2019] FCCA 348
•21 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBX16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 348 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – applicant claimed that the Administrative Appeals Tribunal committed jurisdictional error by exhibiting procedural unfairness, making a finding without evidence and not considering the Refugees Convention criterion – claims of jurisdictional error not made out – earlier Protection visa application already determined under Refugees Convention criterion – present Protection visa application could only be determined under complementary protection criterion – google map not “information” for the purposes of s.424A of the Migration Act 1958 (Cth) – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 417, 424A Migration Regulations 1994 (Cth) |
| Cases cited: AMA15 v Minister for Immigration & Border Protection [2015] FCA 1424 AWA15 v Minister for Immigration [2018] FCA 604 BVE16 v Minister for Immigration and Border protection [2018] FCA 922 Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 |
| Applicant: | BBX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1146 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 22 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms M. Donald |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 9 May 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1146 of 2016
| BBX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a female citizen of China aged 50 years, having been born on 4 July 1968.
By Application filed in this Court on 9 May 2016 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 20 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 4 September 2014 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 25 October 2006 as the holder of a Temporary Student Guardian (Class TU) (Subclass 580) visa with respect to her son who was studying in Australia. This visa ceased on 31 December 2007 but was extended on 3 January 2008 and subsequently ceased on 31 December 2008.
The Applicant then lodged her first Protection visa application on 18 December 2008 (first Protection visa application) based on her practice of the Christian religion, which was refused by a Delegate on 19 March 2009. On 14 April 2009 the Applicant applied to the Refugee Review Tribunal (RRT) for merits review of the Delegate’s adverse decision but the Delegate’s decision was affirmed by the RRT on 9 July 2009. She applied for judicial review of the RRT’s decision to the Federal Court of Australia, but this application was dismissed by the Federal Court on 25 November 2009.
She then made a request for Ministerial Intervention under s.417 of the Migration Act 1958 (Cth) (the Act) to the Minister on 22 December 2009, which on 18 May 2010 was not referred to him. She ceased to hold a valid Bridging visa on 26 August 2010, following which she continued to reside in Australia as an unlawful non-citizen.
The Applicant was located by officers of the Department of the Minister (Department) on 4 December 2013 and lodged her present Protection visa application on 20 December 2013 (present Protection visa application) as she was entitled to do following the introduction on 24 March 2012 of the complementary protection criterion under s.36(2)(aa) of the Act and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds.
Claims for Protection
In her present Protection visa application form the Applicant claimed as follows:
a)she has been mistreated by Chinese Government officials;
b)she is in fear of harm, mistreatment, arrest and detention by the Chinese authorities, the police and thugs;
c)the Chinese Government has expropriated land in her village without fair compensation. Her husband, relatives and other villagers have protested against the Government and also appealed to the Government higher up, but with a negative result and such protesters have been accused of affray and some have been arrested, detained and then charged; and
d)if she were removed to China she would claim her rights and it is therefore foreseeable that she would be harmed and persecuted by the Chinese authorities.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6] The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7] Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 22 August 2014.
In his Decision Record the Delegate recorded that at the interview the Applicant had reiterated the claims made in her present Protection visa application form and recorded further claims made at the interview by her. In the result the Delegate did not find credible the Applicant’s claim that she would face persecution in China because she would appeal for her rights in respect of confiscated land and noted that she had no documentary evidence of any title to relevant land and no documentation whatsoever that the local Chinese Government had appropriated any land.
The Delegate also recorded that there was a lack of detail or specificity in the Applicant’s claims overall and that she had not been forthcoming with detail at the interview. The Delegate further noted that the Applicant did not make any claim to fear persecution or harm based on her Christianity as asserted in her first Protection visa application.
The Delegate ultimately came to the view Australia did not have protection obligations to the Applicant under either the Refugees Convention criterion pursuant to s.36(2)(a) of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) or the complementary protection criterion under s.36(2)(aa) of the Act.
I note that notwithstanding that the Delegate considered the present Protection visa application under both the Refugees Convention criterion and the complementary protection criterion he only had jurisdiction to consider the present Protection visa application under the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH).
Decision of Tribunal
The Applicant lodged an application for merits review with the Tribunal on 24 September 2014 and gave a copy of the Decision Record of the Delegate to the Tribunal.
The Applicant appeared before the Tribunal on 27 November 2015 to give evidence and present arguments, with the assistance of interpreters in the Mandarin, Fuzhou and English languages.
I note that the Tribunal was correctly of the view that its jurisdiction in considering the present Protection visa application was limited to the complementary protection criterion under s.36(2)(aa) of the Act and not the Refugees Convention criterion under s.36(2)(a). This view was subsequently confirmed as correct upon delivery of judgment in SZVCH on 14 September 2016 at [44] per Kenny, Siopis and Besanko JJ and [113] – [114] per Mortimer J.
At [17] of its Decision Record the Tribunal summarised the Applicant’s claims as made in her first Protection visa application, and at [18] – [19] recorded the claims made by the Applicant in her present Protection visa application form and at the interview with the Delegate.
At [20] the Tribunal recorded that at the hearing before it the Applicant had “stated that her current claim is because all of her land in the village has been taken by the government and she does not have anything”.
At [26] – [44] of its Decision Record the Tribunal recorded its questioning of the Applicant and her evidential responses. At [44] the Tribunal recorded that the Applicant had stated that she did not want the Tribunal to consider any of the claims in her first Protection visa application relating to her having been a member of a Christian underground church in China, or of her being a Christian.
From [45] – [56] of its Decision Record the Tribunal stated its findings and reasons.
At [40] and [48] of its Decision Record the Tribunal accepted the Applicant’s evidence that she had never been involved in any protests against Government authorities and that her husband had not come to the attention of the local authorities since at least 2010. The Tribunal also accepted at [50] that one Mr Tan Lin, who was referred to in documents provided to it by the Applicant, was the Applicant’s nephew and that he had been involved in protests which resulted in his arrest and detention in 2011 and 2012.
Nevertheless, at [46] the Tribunal recorded that it had significant concerns as to the credibility of the Applicant’s claims relating to the land expropriation stemming from the inconsistencies in, and the changing nature of, her evidence. In particular, the Tribunal had regard to inconsistencies in the Applicant’s evidence as to when the land was expropriated, and when and the extent to which the Applicant’s husband was involved in a protest: see [52] and also [37] – [39] of the Decision Record.
At [51] of its Decision Record the Tribunal recorded that there was no evidence that Mr Tan Lin had been involved in protesting about expropriation of land which the Applicant had the right to farm, or that there were any protests in 2008 or 2010.
At [53] the Tribunal expressed its conclusion that on the evidence it was not satisfied that the Applicant’s land had been expropriated or that she had been paid inadequate compensation for any land that may have been expropriated. At [54] the Tribunal stated that it was:
[54] … not satisfied that the Applicant would be involved in protests to Government authorities about expropriation of land and / or payment of inadequate compensation or that she would come to the adverse attention of authorities for these or related reasons.
The ultimate findings of the Tribunal were expressed at [55] and [56] of its Decision Record:
[55] Based on the above finding, the Tribunal finds that there are no substantial grounds for believing that there is a real risk that the applicant would be arrested, detained or suffer physical harm or undue economic hardship if she were to return to her family home to live with her husband in China now or in the foreseeable future.
[56] Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act): s.36.(2)(aa).
The Tribunal therefore concluded at [57] of its Decision Record that it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act. Accordingly, at [59] the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant are as follows:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal made a finding without supporting evidence.
3. The Tribunal failed to consider the applicant's claims in accordance to the refugee criteria.
Consideration
At the hearing in this Court the Applicant complained and submitted to the effect that the Tribunal did not ask her any or many questions and rejected her claims without any evidence. This complaint fails for at least the following reasons:
a)the evidence establishes that the Tribunal hearing took place over a period of 1 hour and 59 minutes and at the hearing before me the Applicant conceded that the Tribunal hearing extended for approximately 2 hours;
b)it is clear from the Decision Record of the Tribunal that there was extensive questioning of the Applicant. At [26] the Tribunal stated as follows:
[26]At the hearing, the Tribunal discussed the applicant’s background, current circumstances and claims for protection.
Then at [27], [30], [31], [32], [33], [35], [37], [38], [40], [41], [42] and [44] the Tribunal records expressly what the Applicant said at the Tribunal hearing in response to its questioning;
c)there is no probative evidence whatsoever that the Tribunal did not sufficiently enquire of and question the Applicant about her claims or did not sufficiently have regard to those claims; and
d)by consent order 4 of 30 June 2016 the onus was upon the Applicant to provide evidence of a Tribunal hearing by transcript if she considered such evidence necessary, but no such transcript was tendered or relied upon by her.
Accordingly, I reject the complaint made by the Applicant at the hearing that there was insufficient questioning of her and insufficient interaction between the Tribunal and herself.
I now turn to the written Grounds of her Application.
Ground 1
This Ground is wholly generalised and no particulars of the alleged procedural unfairness are given.
The Decision Record of the Tribunal contains no indication of any procedural unfairness and there is no other evidence that the Tribunal exhibited procedural unfairness to the Applicant or that the Tribunal did not comply with the natural justice requirements in Division 4 of Part 7 of the Act.
I note that Ms Donald, who appeared for the Minster, noted that at [34] of its Decision Record the Tribunal referred to a Google map of the Applicant’s village, but correctly submitted that this was not information specifically about the Applicant or another person and that it fell within the exemption under s.424A(3)(a) of the Act and as such the obligation in s.424A(1)(a) was not enlivened: see BVE16 v Minister for Immigration and Border protection [2018] FCA 922 at [59] – [64] per Gleeson J.
Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
This Ground is also not made out.
The Decision Record of the Tribunal establishes that it considered a large body of evidence, including the claims made by the Applicant in her present Protection visa application form, at the interview before the Delegate and at the Tribunal hearing and the documents which had been provided to the Delegate and which are summarised at [20] of the Decision Record of the Tribunal.
This Ground is without merit and fails.
Ground 3
I have already noted at [16] above that the Tribunal was confined and limited to considering only the complementary protection criterion under s.36(2)(aa) of the Act and to the decision in SZVCH. That decision of the Full Court, as well as the decision of Markovic J in AMA15 v Minister for Immigration & Border Protection [2015] FCA 1424 means that Ground 3 also fails to establish jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 21 February 2019
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