BGT15 v Minister for Immigration

[2016] FCCA 2473

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2473

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant raised an arguable case for the relief he seeks – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 426A

Applicant: BGT15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1870 of 2015

Judgment of: Judge Manousaridis

Hearing date: 15 September 2016

Delivered at: Sydney

Delivered on: 15 September 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the First Respondent: Mr A. Day of
DLA Piper

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1870 of 2015

BGT15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), that the application be dismissed because the application does not raise an arguable case for the relief it seeks. The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grand the applicant a Protection (Class XA) visa (Protection visa).

2. The applicant is a citizen of the People’s Republic of China.  In his application for a Protection visa, the applicant claimed that he and his wife violated the “one child policy” by having a daughter in 2004 in circumstances where they already had a son.  As a consequence, the applicant and his wife were fined RMB10,000.  The Family Planning Committee locked the applicant’s wife in an old cattle shed, and his wife was not released until they paid the fine.  The applicant also claimed his wife was “forced to do the ligation”.

3. The applicant and his family lived in poverty and were able to “make it through” because of the help they received from friends.  In 2011, however, the applicant’s wife fell pregnant again. This was not planned.  A doctor informed them the child could not be aborted because it would put the wife’s life at risk.  The applicant’s wife gave birth to a boy, and they were fined RMB30,000. 

4. The applicant and his wife went to the Family Planning office to inform them the ligation had failed, that fining them was unreasonable, and to seek compensation.  The police were called and members of the office said the applicant’s wife secretly underwent a surgery to enable her to have children again.  The applicant became very angry and hit the policeman.  The police charged the applicant, detained him in the local police station, and hit and kicked the applicant, covering his entire body with injuries. 

5. The applicant further claimed that in December 2012 the local government in his area planned to sell a large amount of land to developers to build villas and a residential area.  The applicant and his family disagreed with their house being demolished without compensation; and the compensation that was offered to them was considered insufficient by the applicant and his family.  The applicant refused to sign documents and was told that his house would be demolished in any event.  In alleged circumstances which it is unnecessary to repeat here, the applicant alleged he was coerced into signing demolition documents, that he, together with other villagers, protested, and that, as a result of his protesting, he was imprisoned and subjected to “severe extortion methods” to confess to illegal rallying.  When the applicant did not confess, the police beat him, slapped him, and kicked his stomach. 

6. The police did not let the applicant sleep or eat, and threw cold water on the applicant at night time.  The applicant was detained for 15 days, was mistreated both by the police and inmates during that period, and was forced to work for long periods, including cleaning the toilets and carrying food supplies.  After 15 days, the applicant was released after his wife paid a fine of RMB5,000.  The applicant was extremely angry and disappointed with the “corrupt and dark government and society” and even considered suicide.  The applicant’s wife feared the applicant would be arrested again, and asked him to leave China to avoid persecution.  The applicant came to Australia in December 2013. 

7. By letter dated 21 April 2015 sent to the applicant’s authorised recipient nominated in his “application for review to the Refugee Review Tribunal”, the Tribunal informed the applicant it had considered the material before it, but was unable to make a favourable decision on that information alone and invited the applicant to appear before it on 11 June 2015 to give evidence and present arguments.  On 26 April 2015, the Tribunal received a “response to hearing invitation” form indicating the applicant would be attending the hearing.

8. Neither the applicant nor his migration agent, however, attended the hearing on 11 June 2015; nor did either of them inform the Tribunal that the applicant was running late or to request a postponement of the hearing. The Tribunal, in those circumstances, decided to make a decision on the review pursuant to s.426A of the Migration Act 1958 (Cth) (Act), without taking any further action to enable the applicant to appear before it. 

9. The Tribunal referred to the claims made by the applicant in his Protection visa application and to the delegate’s decision record, which to the Tribunal indicated several inconsistencies between the applicant’s written evidence and his oral evidence. The Tribunal referred to its being unable to: 

   (a) obtain further details about the applicant’s claims from him; 

   (b) discuss with the applicant when his land was acquired and where his family moved to thereafter; 

   (c) ascertain whether the applicant received compensation and, if so, how much the applicant received; 

   (d) explore with the applicant how he was able to obtain a passport in his circumstances; 

   (e) ascertain why there were inconsistencies between the applicant’s written claims and the evidence he gave to the delegate on 27 June 2014; 

   (f) discuss why the applicant now fears returning to China; and

   (g) discuss relevant country information with the applicant. 

10. The Tribunal also referred to the applicant’s written claims containing insufficient detail and to the applicant’s not attending the Tribunal hearing, and was unable to be satisfied of the genuineness of the applicant’s claims, whether they are well-founded or for the reasons claimed. The Tribunal was unable to be satisfied that the applicant has a well-founded fear of persecution for reason of actual or imputed political opinion or any other Refugees Convention-based reason, and found the applicant does not satisfy the criterion specified in s.36(2)(a) of the Act.

11. The Tribunal was also unable to be satisfied 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 he will suffer significant harm, and found the applicant, therefore, does not satisfy the criterion specified in s.36(2)(aa) of the Act.

12. The application filed with this Court contains three grounds of review.  These are:

    1.I [applicant’s name] disagreed with the decision that the RRT have made. 

    2.The circumstances which I am currently in, if I returned to China I will be arrested again. 

    3.I request that the Court Registrar review my application for a grant of a Protection visa in Australia. 

13. None of these grounds raises an arguable case for relief.  The first ground simply expresses disagreement with the Tribunal’s decision, and it therefore invites merits review.  As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant is entitled to a Protection visa.  The Court’s jurisdiction is limited to determining whether the Tribunal reviewed the applicant’s case according to law having regard to the grounds stated in the application that is before it. 

14. The second ground also discloses no arguable case for relief.  It invites the Court to consider whether the applicant will be arrested in China or otherwise face harm if he returns to China. The Court does not have jurisdiction to determine such questions. As I also informed the applicant, the only person or authority that has power under Australian law to consider and determine whether Australia owes protection obligations to a person is the Minister, acting through a delegate usually, and, if the Minister does not agree Australia owes protection obligations to an applicant, by the Tribunal and now the Administrative Appeals Tribunal on application for review. 

15. The third ground also discloses no arguable case for judicial review because it invites the Court to consider whether the applicant should be granted a Protection visa. And the Court has no jurisdiction to determine that question. 

16. During the hearing before me, I asked the applicant what complaint he had about the Tribunal’s decision. The applicant, who is not legally represented, said he gave truthful evidence and did not know why the Tribunal found he gave untruthful evidence. As I informed the applicant, however, the Tribunal did not make any finding that the applicant was untruthful. The Tribunal said that on the material before it, and in view of the applicant’s not attending the hearing before the Tribunal, it was unable to be satisfied of the genuineness of the applicant’s claim or whether they were well-founded, or for the reasons claimed. 

17. There is one final matter to note, although not raised by the applicant either in his application or in anything he submitted to me. The Minister submitted the Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Act.  There is nothing in the material before me that could raise an arguable case the Tribunal did not comply with those provisions. 

18. In these circumstances, therefore, I am satisfied the application does not raise an arguable case for the relief it seeks, and I propose to dismiss the application. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 23 September 2016