BFO17 v Minister for Immigration

[2017] FCCA 1977

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFO17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1977

Catchwords:
MIGRATION – Application for a Constitutional writ – show cause hearing – no arguable jurisdictional error – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), ss.5,36, 476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BFO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 857 of 2017

Judgment of: Judge Street

Hearing date: 18 August 2017

Date of Last Submission: 18 August 2017

Delivered at: Sydney

Delivered on: 18 August 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms K Hooper
HWL Ebsworth Lawyers

ORDERS

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

2. The applicant pay the first respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 857 of 2017

BFO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 27 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 spent four days in Australia as a ship crew member in 2009 and arrived more recently in a crew member in a ship in February 2011. The applicant disembarked that ship on 16 February 2011. The applicant then remained unlawfully in Australia until lodging an application for protection on 23 June 2014.

3. The applicant claimed to fear harm by reason of being a Christian and by reason allegedly, of attending church in Australia. The applicant also alleged that he was involved in the underground church activities in China.

4. On 15 April 2015, the delegate refused to grant the applicant a protection visa. The delegate made adverse credibility findings in respect of the applicant, and found the applicant failed to meet the criteria for the grant of a visa under the Act.

Review by Tribunal

1. The applicant applied for review on 12 May 2015. By letter dated 12 October 2016, the applicant was invited to attend a hearing on 29 November 2016. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the applicant’s background in relation to the visa application and the appearance of the applicant before the Tribunal. The Tribunal set out the relevant law. The Tribunal identified the applicant’s claims and evidence. The Tribunal identified raising matters with the applicant in relation to the applicant’s credibility in the course of the hearing.

3. The Tribunal found the applicant provided confusing and inconsistent evidence to the Tribunal regarding his employment history in China. The Tribunal found this raised issues in relation to the applicant’s credibility. In relation to the applicant’s claims concerning underground Christian activities in China, the Tribunal found that the extent of the inconsistencies between the applicant’s written submissions and evidence at the hearing meant the Tribunal was unable to be satisfied that the applicant was introduced to Christianity, involved in the underground church activities in China, that he organised family gatherings, and he was taken to the police station and interrogated and forced to sign a statement renouncing his beliefs.

4. The Tribunal was not satisfied that members of the Public Security Bureau inquired about his whereabouts since he came to Australia, given the very little information the applicant was able to provide to substantiate the claim. The Tribunal referred to the applicant’s allegations concerning Christian activities in Australia. The Tribunal was unable to be satisfied the applicant attended a church in Australia. The Tribunal noted the applicant was unable to provide an address or name of church, or the name of the person who introduced him to the church. Further, the applicant was only able to describe in the most general matter what happens during the service. The Tribunal found these matters undermined the applicant’s credibility as a witness in relation to his practice of Christianity in Australia.

5. The Tribunal found the evidence provided by the applicant did not satisfy the Tribunal that the applicant was a Christian. The Tribunal found the applicant not to be a truthful or credible witness. The Tribunal found the applicant was unable to describe basic tenets of Christianity revolve around critical celebration fundamental to his faith. The Tribunal was not satisfied the applicant had told the truth in relation to critical aspects of his claims.

6. The Tribunal found the applicant’s subsequent attempts to explain discrepancies between his application and his evidence at the hearing were self-serving and contradicting the material provided in support of his application. The Tribunal noted a warning in relation to adverse findings in relation to credibility. The Tribunal was of the view that the applicant’s evidence should have been relatively consistent over time between the written claims and the oral evidence, and should be plausible and coherent in relation to the claims made of important matters and should provide sufficient detail to demonstrate that the applicant experience the events claimed. The Tribunal found the applicant did not provide evidence that was consistent, plausible, coherent and convincing, and considered the totality of the applicant’s claims in evidence individually and cumulatively.

7. The Tribunal was not satisfied the applicant suffered any of the harm claimed. The Tribunal was satisfied the applicant would not, in the foreseeable future, be a Christian or engage in any of the claimed future Christian activities, that he therefore has no real chance of suffering any serious harm for that or any other Convention reason and that the Tribunal was not satisfied the applicant had a well-founded fear of any Convention-related persecution.

8. The Tribunal found there is no real chance the applicant would suffer any of the harm defined in s 36(2A) and s 5(1) of the Act in the foreseeable future if returned to China. The Tribunal found there are not 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 he would suffer significant harm.

9. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision on the review.

Application to this Court

1. On 6 July 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. The grounds in the application are as follows:

   1. In the whole interview process of AAT, the officer asked me questions with the tone of a query, which made me extremely intense. The officer asked me when I came to Australia, I answered that I forgot it. Later, he asked me if it was 17 February 2017, I replied that it should be 15 February, since I remembered it was the day after the valentine's day, I was left with such an impression. But the officer thought my words were inconsistent and doubted their authenticity.  How much do you think the exact date of going abroad is related to the authenticity of my words? It is simply impossible.

   2. I told AAT officer that there were about 20 to 30 people for each gathering and the gathering was located in one of the farmer's home. But the officer said it was impossible to have so many people in one's home. In fact, houses in villages are very big and it is normal to have 20 to 30 people. I cannot understand why he doubted it. It cannot mean anything. It makes no sense. The AAT officer asked such a questions, I really doubted his competence and ways of doing things.

   3. It is more ridiculous that the police officers came to house to arrest us. AAT officer asked me when the police officers came to the house. I replied that there were 6 police officers after 2000. The AAT officer said it was in 2010 in my statement. I experienced twice of being caught, one was after 2000 and the other was in 2010. I did not know which one the officer asked and he did not explain clearly. So he thought my statement was false, but he could not give me any reasonable explanation. It is meaningless.

   4. I also joined in religious gathering in Australia almost on a weekly basis, the location is in Auburn. The officer asked me the detailed address. Since I cannot understand English, so I cannot speak correctly, is it not reasonable? But the irresponsible attitude of AAT and arbitrary led to my application failure, it is extremely unfair.

3. At the commencement of the hearing, the Court explained to the applicant that the matter was listed today for a hearing under r 44.12 of the Federal Circuit Court Rules 2001 (the “Rules”). The Court explained that this was a hearing to determine whether the applicant had an arguable case. The Court explained that this involved considering whether the applicant had an arguable case that the Tribunal’s decision was affected by relevant legal error.

4. 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 applicant had a reasonably arguable case that the Tribunal’s decision was unlawful or unfair. The court explained that if it was satisfied the Tribunal’s decision was the subject of a reasonable argument that it was unlawful or unfair, the matter would be fixed for a hearing on another occasion. The Court explained to the applicant that if it was not satisfied the Tribunal’s decision was the subject of a reasonable argument that it was unlawful or unfair, the application would be dismissed with costs.

5. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant as to why the Tribunal’s decision was unlawful or unfair. The court explained that provided the applicant put submissions, the Court would then hear submissions from the solicitor for the first respondent and then the applicant would have an opportunity to put submissions in reply.

6. When invited to put submissions, the applicant indicated that he did not know what to say. The Court explained to the applicant that unless the applicant put submissions in support of the application or in answer to the written submissions of the first respondent, the Court would not call upon the solicitor for the first respondent. The applicant confirmed the submissions had been read to him and confirmed that he had nothing to say.

7. In relation to ground 1, the applicant takes issue with the adverse credibility finding by the Tribunal. The adverse finding in relation to the applicant’s evidence being inconsistent was open to the Tribunal, and cannot be said to lack an evident and intelligible justification. 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. No arguable jurisdictional error was made out by ground 1.

8. Ground 2 is a disagreement with the adverse findings made by the Tribunal in relation to the applicant. For the reasons already given, those evidence findings were open. No arguable jurisdictional error was made out by ground 2.

9. Ground 3 again is a disagreement with the adverse findings by the Tribunal. Those adverse findings were open. No arguable jurisdictional error was made out by ground 3.

10. Ground 4 reflects in substance, a disagreement with the adverse findings by the Tribunal. The Tribunal provided rational and cogent reasons in support of the adverse credibility findings. Ground 4 is in substance, an invitation for this Court to engage in an impermissible merits review. No arguable jurisdictional error is made out by ground 4.

11. I take into account the Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [20-25], [51-60]. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r 44.12 of the Rules. No arguable case of jurisdictional error is disclosed by the application.

12. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017