BCF17 v Minister for Immigration

[2018] FCCA 2475

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2475

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider claims – whether the Tribunal erred in making adverse credibility findings – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7

Applicant: BCF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 759 of 2017

Judgment of: Judge Smith

Hearing date: 13 August 2018

Date of Last Submission: 13 August 2018

Delivered at: Sydney

Delivered on: 13 August 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr J Hutton, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 759 of 2017

BCF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 15 February 2017.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of China who arrived in Australia on 3 April 2014 on a visitor visa and on 19 May 2014, she applied for a protection visa.  The applicant claimed that she and her husband had had twin girls in 2011 and that she had fallen pregnant with the expectation of giving birth to a son in 2013.  However, the authorities in China discovered this and forced her to undergo an abortion.  The applicant claimed that she feared similar things might happen if she were to return to China. 

3. On 15 April 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.  The applicant attended a hearing conducted by the Tribunal on 14 December 2016. 

4. At that hearing, the applicant was asked a number of questions concerning her claims.  Amongst other things, she was asked whether she had any evidence of the birth of her twin daughters.  The Tribunal told the applicant at the end of the hearing that it would wait for one week to allow her to provide such additional information to it. 

5. On 15 February 2017, the Tribunal made its decision to affirm the decision of the delegate.  In its statement of reasons, the Tribunal stated that the applicant’s failure to provide any documentary evidence about the existence of her twin daughters caused it to seriously question whether the applicant did, in fact, have two children and noted that the applicant was unable to provide a credible explanation for why she was unwilling to provide such evidence at the hearing. 

6. The Tribunal also noted that the applicant’s evidence to the Tribunal regarding her past experience lacked any circumstantial detail and had to be heavily prompted, leaving it with the impression that the applicant was not recounting her actual personal experiences but rather recalling the contents of her written statement.  At [41] of its reasons, the Tribunal noted that other aspects of the applicant’s evidence lacked plausibility and that the applicant’s suggestion that she was forced to undergo pregnancy screening on a monthly basis seemed far-fetched. 

7. At [42], the Tribunal stated that the cumulative effect of those features of the applicant’s evidence led the Tribunal not to be satisfied that the applicant was married with twin daughters.  The Tribunal was not satisfied that in 2013, as claimed, the applicant fell pregnant and was apprehended by family planning officers, taken to the hospital and forced to undergo an abortion. 

8. On the basis of those findings, the Tribunal was not satisfied that the applicant would suffer any harm connected with the enforcement or implementation of China’s family planning laws should she return to China now, or in reasonably foreseeable future.  Accordingly, it was not satisfied that the criteria for the grant of a protection visa were met and so affirmed the decision under review. 

Consideration

1. In her application for judicial review, the applicant re-states a number of the claims made in support of her protection visa application and states in addition, that the Tribunal ignored the fact that Chinese authorities cruelly treated young women by means of forced abortions.  The re-statement of claims in support of the protection visa does not advance the applicant’s case in this Court.  This Court has no power to decide one way or another whether the applicant satisfies the criteria for a grant of a protection visa, and so it is irrelevant to the Court’s task whether or not the applicant’s claims were true.  In other words, it is beyond the Court’s jurisdiction to engage with the merits of the Tribunal’s decision. 

2. Further, while it is true that the Tribunal did not deal with, in terms of making positive or negative findings about the way in which the Chinese authorities deal with younger women, it was unnecessary for the Tribunal to engage with that issue because of its other findings.  The Tribunal’s task was to determine not what might happen to other people, but what might happen to the applicant herself.  One of the bases upon which it was asked to, and did assess that question, was to determine what had happened to the applicant in the past.  That was because what the applicant claimed to have happened in the past was the basis for her fears of what might happen to her in the future. 

3. As I have explained, the Tribunal rejected the applicant’s claims.  Its reasons for doing so included specific elements of the applicant’s own evidence and, in general, the lack of particularity and circumstantial detail in it and her unwillingness to provide corroborating evidence about the existence of her own children.  Each of those reasons provided a logical basis for the Tribunal’s rejection of the applicant’s claims. 

4. In light of that and on the material before me, I am satisfied that the Tribunal afforded the applicant procedural fairness in accordance with the requirements of pt.7 of the Migration Act 1958 (Cth).

Conclusion

1. I am not satisfied that the Tribunal’s decision is affected by jurisdictional error.  As the Court’s power is limited to acting only in circumstances where there is jurisdictional error, the consequence of my conclusion is that the application must be dismissed. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     5 September 2018