BCG17 v Minister for Immigration

[2017] FCCA 3031

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCG17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3031

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal failed to consider s 91R – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 476

Applicant: BCG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 761 of 2017

Judgment of: Judge Street

Hearing date: 6 December 2017

Date of Last Submission: 6 December 2017

Delivered at: Sydney

Delivered on: 6 December 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Montalban
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 761 of 2017

BCG17

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 14 February 2017, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant was granted a class FA subclass 600 tourist visa on 2 April 2014. The applicant arrived in Australia on 20 April 2014 using a People’s Republic of China passport issued in his own name.

3. The applicant purported to lodge an application for protection on 26 May 2014, however it was deemed invalid. The applicant lodged a valid application for protection on 13 June 2014. On 24 April 2015, a delegate found the applicant failed to meet the criteria for the grant of a visa under the Act.

4. The applicant, in summary, claimed to fear harm as he had proposed to run for Village Chief as the town government was corrupt, and was abducted three days before the election. The applicant alleges the person who abducted him threatened him to disappear from the village. The applicant subsequently told his wife what happened and he departed China two months later.

The Tribunal’s decision

1. The applicant filed an application for a review of the delegate’s decision on 25 May 2015. The applicant was invited by letter dated 28 October 2016 to attend a hearing on 24 November 2016. The applicant appeared on that date to give evidence and present arguments. On 5 January 2017, the applicant was invited to attend a further hearing on 10 February 2017. The applicant appeared on that date to give evidence and present arguments.

Credibility findings

1. The Tribunal found the applicant was not a credible witness owing to inconsistent evidence provided about core aspects of his protection claims. The Tribunal identified in detail the contradictory evidence given by the applicant in relation to his experiences in China, in relation to the threats made by the Village Chief, the location of his work and timelines for conflict, and the basic details of his life in China, including residence, work and movements. The Tribunal found that there was an  absence of details by the applicant in relation to how the villagers reported the town leader’s corruption to the county government, and that the applicant gave evasive responses at the hearing, which the Tribunal found to undermine the applicant’s credibility.

2. The Tribunal found the applicant gave inconsistent evidence about the government investigation into corruption and that the applicant denied an inconsistent earlier statement when put to him. The Tribunal found the applicant gave inconsistent accounts about the amount of support he had received from others for the Village Chief election and was unable to explain how he was a sufficient threat to other candidates to warrant their actions against him. The Tribunal found the applicant gave inconsistent evidence about his actions in attempting to run for Village Chief. The Tribunal found the applicant gave inconsistent evidence about the identities of the village leaders and those that supported him for the election. The Tribunal did not accept the applicant’s evidence that the village leaders wanted to harm him even though he did not personally campaign for Village Chief and/or was not a candidate for Village Chief.

3. The Tribunal found the applicant’s initial evidence that he moved around for several years because of threats of harm from the Village Chief contradictory to his claims that the issues with the Village Chief arose in his last 12 months in China.

4. The Tribunal did not accept the applicant’s claim that the village leaders had harassed his wife and damaged her property since his departure and found the applicant’s evidence in that regard to be incoherent and implausible. The Tribunal did not accept the applicant’s claim that the Village Chief and other village leaders wanted to, or intended to, kill the applicant in China. The Tribunal found the applicant’s inconsistency about who was threatening him and who he feared substantially affected the credibility of his core claims. The Tribunal did not accept the applicant’s evidence that he did not know the identity of the other candidates or the name of the successful candidate in the Village Chief election.

Assessment of claims

1. In totality, the Tribunal found the applicant’s protection claims to lack credibility and did not accept the claims that the applicant reported the village leaders for corruption, that the applicant tried to run for Village Chief, that the applicant was threatened by village leaders, the Village Chief, or Village Chief’s men, that the applicant was captured by village leaders, the Village Chief, or the Village Chief’s men, that the Village Chief’s leaders or Village Chief were interested in harming the applicant in China, or that the applicant’s wife had been questioned, threatened or harmed, or that her house had been damaged in China.

2. The Tribunal was not satisfied the applicant was of adverse interest to the village officials, government authorities, police, or anyone in China. The Tribunal found that the applicant does not face a real chance of serious or significant harm in China as a result and did not have a well-founded fear of persecution for a Convention reason. The Tribunal was not satisfied there is a real risk the applicant would be subjected to significant harm in China.

3. The Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations under the Refugees Convention and found the applicant failed to meet the criteria under s 36(2)(a) of the Act. The Tribunal found the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act and found the applicant failed to meet the criteria under that provision.

Proceedings before this Court

1. On 28 April 2017, a Judge of this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Grounds in the application

1. The grounds in the application are as follows.

   On 2 Feb. 2014 at about 9pm, several persons knocked my home door. They blind olded me and sealed my mouth and took me to a hill outside our village. They were hired by our village chief, threatened me to disappear and never see me again within two days. I had to leave China for Australia to seek protection.

   The Tribunal member did not accept that I will be persecuted if I return to China.

   The Tribunal member did not consider my whole experience according to S91 R (3) of the Migration Act 1958

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

2. The Court explained that it would have identified the evidence, and then hear submissions from the applicant, and 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.

Submissions from the bar table

1. From the bar table, the applicant maintained that he could not go back to China because he would be harmed. The applicant indicated that he had an elderly mother. The applicant’s submissions from the bar table were, in substance, an invitation to this Court to engage in impermissible merits review. This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration of the grounds

Ground 1

1. Ground 1 of the application is, in substance, a repetition of the applicant’s claims and does not identify any error. This Court does not have power to revisit the merits of the application or to make fresh findings in relation to the applicant’s claims. Nothing in Ground 1 identifies any jurisdictional error.

Ground 2

1. Ground 2 reflects a disagreement with the adverse findings by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. The adverse findings made by the Tribunal were open for the reasons given by the Tribunal on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, s 91R did, in fact, apply to this application given its filing date. However, there is no issue under that section raised before the Tribunal. Accordingly, the reference to that provision does not identify any jurisdictional error in the present case.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  24 January 2018