BJF15 v Minister for Immigration

[2016] FCCA 1962

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJF15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1962

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take relevant evidence into account – whether the Tribunal’s decision was unreasonable – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2)(aa), 36(2A), 476

Cases cited:
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

First Applicant: BJF15

Second Applicant: BJC15

Third Applicant: BJE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1943 of 2015

Judgment of: Judge Street

Hearing date: 1 August 2016

Date of Last Submission: 1 August 2016

Delivered at: Sydney

Delivered on: 1 August 2016

REPRESENTATION

The first applicant appeared in person

Solicitors for the First Respondent: Mr T Hillyard
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The First Applicant and the Second Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1943 of 2015

BJF15

First Applicant

BJC15

Second Applicant

BJE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 23 June 2015 affirming the decision of the delegate not to grant the applicant’s Protection (Class XA) visas. The first applicant is the mother of the third applicant, and the wife of the second applicant. The second and third applicants made no independent claims for protection and advanced their claim for protection on the basis of being members of the same family unit.

2. All applicants have earlier made a claim for protection which was refused.  The current application is advanced on the grounds of complementary protection consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. The first applicant arrived in Australia on 7 March 2008 on a subclass 571 student visa. The second applicant arrived in Australia on 23 April 2008. The third applicant was born in Australia. The first applicant’s student visa ceased on 29 March 2011. The applicant thereafter remained an unlawful non-citizen until located by an immigration compliance team on 21 July 2011.

3. The first applicant’s first application for protection was lodged on 4 August 2011. The first applicant claimed to fear harm if she returned to China on the basis that her daughter would be discriminated against because she was born out of wedlock. The first applicant claimed to fear that situation arose because the first and second applicants were not the legal age for marriage in China when they wed in Australia and that they breached China’s family planning laws and feared harm on that basis.

4. The first applicant also claimed to fear harm on the basis that she may be arrested and retained by Chinese authorities because of her church and religious activities and her religious beliefs as well as those of her parents.  On 19 May 2014, the delegate rejected the applicants’ claims.  The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China there was a real risk that the applicants would be subject to significant harm.

5. The applicants applied for review on 6 June 2014. By letter dated 30 January 2015, the applicants were invited to attend a hearing on 16 April 2015. On 29 April 2015, the applicants were invited to attend a hearing on 27 May 2015.  The applicants attended on both dates and presented claims and evidence.  The Tribunal’s reasons identify the relevant law in relation to complementary protection as well as the two hearings before the Tribunal.

6. The Tribunal noted that the applicant had no difficulty obtaining a passport to come to Australia and made adverse findings in relation to the applicant’s credibility.  The Tribunal was not satisfied of the applicant’s credibility in relation to some aspects of her evidence, and in relation to some of her claims.  The Tribunal was not satisfied and did not accept on the evidence that the applicant was Catholic.  The Tribunal did not accept the applicant’s claims about her involvement with the Catholic Church of China.

7. The Tribunal was not satisfied on the evidence before it that the applicant, if returned to China, would engage in any religious activities in the underground Catholic Church that would place her at risk of harm on that basis, or that she would be at risk of being arrested if she returned to China on the basis of her religious activities as she had claimed at one stage during the Tribunal hearing.  The Tribunal was not satisfied on the basis of the evidence before it, including its assessment of the applicant’s credibility, that the applicant was forced to leave school in China because of her parent’s religious activities.

8. The Tribunal was not satisfied the first applicant was forced to leave school for several months before she came to Australia as she claimed.  The Tribunal found that the first applicant’s evidence was vague in providing details and clarity around her claims, as well as being inconsistent.  The Tribunal’s overall assessment of the first applicant’s credibility is that the first applicant was not a credible witness.  The Tribunal found that the first applicant exaggerated many aspects of her claims.

9. The Tribunal did not accept that the first applicant is Catholic and did not accept on the evidence that the first applicant’s father was engaged in any significant underground church activity in China that would place him at risk of harm in China or in the relevant province in particular.  The Tribunal referred to the first applicant’s claim concerning data breach and noted that the first applicant was living in the community at the relevant date.  The Tribunal did not accept that the first applicant was at risk of harm on the basis of data breach by the department should she be returned to China.

10. In relation to China’s family planning laws, the Tribunal was not satisfied that if the applicants were to return to China, they would be unable to fund the amount, particularly given the possibility of paying by instalments.  The Tribunal was satisfied on the basis of the country information that it had been referred to, that once the applicants pay their social compensation fee, she and her husband could apply to have the third applicant entered on the household registration, and once registered, the third applicant would be in the same position as other Chinese citizens in terms of ability to access services.

11. The Tribunal found that it was not satisfied that the first and second applicants would face discrimination in China that would amount to significant harm within the meaning of s.36(2A) of the Migration Act 1958 because of the third applicant being born out of wedlock.  The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China, that the first applicant faced a real risk of significant harm on the basis of her claims.

12. The Tribunal found that it was not satisfied that the first and second applicants' daughter is at risk from significant harm in relation to the issues surrounding payment of social compensation fee or that she is at risk of significant harm on the basis of having been born out of wedlock should she return to China. The Tribunal was not satisfied that there were substantial grounds for believing that there is a real risk the applicants will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) of the Migration Act 1958 which refers to an act or omission that causes or intended to cause extreme humiliation, which is unreasonable.

13. The Tribunal found that it was not satisfied there are substantial grounds for believing that there is a real risk the applicants will suffer arbitrary deprivation of their lives or the death penalty if they returned from Australia to China. It was in those circumstances the Tribunal found that the applicants did not meet the criteria under s.36(2)(aa) of the Migration Act 1958 and affirmed the decision of the delegate. 

14. On 13 August 2015, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, put on  affidavit evidence and some submissions. On 8 April 2016, a further order was made by this Court providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed in response to the orders. 

15. The grounds of the application are as follows:

    1. For evidence we presented did not seriously conside the survey

    2. Failing to take into account very relevant facts of the matter

    3. I am not agree with him to give us results

    (errors in original)

16. At the commencement of the hearing, the Court explained to the first 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 excessive statutory power or a denial of procedural fairness to the applicant.

17. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair. The first applicant confirmed that she understood what had been said by the Court. The Court explained that if satisfied that the Tribunal’s decision was affected by relevant legal error, it would set aside the decision and send it back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, it would dismiss the applicants’ application.

18. The Court explained to the applicant that it would have identified the evidence, and then hear the submissions from the first applicant and then hear the submissions from the solicitor for the first respondent, and then hear submissions from the first applicant.  The first applicant confirmed that she understood the nature of the hearing as explained by the Court. The second and third applicants were outside the court but did not wish to come into the court room.

19. From the bar table, the first applicant asserted that the Tribunal had not taken into account the whole of her circumstances and those of her husband and child.

20. The solicitor for the first respondent submitted that what was said by the first applicant from the bar table did not identify any jurisdictional error and that it was apparent from the Tribunal’s reasons that it had considered the claims and evidence of the applicants.  I accept that submission of the first respondent.  The Tribunal’s reasons reflect a comprehensive and orthodox assessment of the applicant’s claims and evidence. The adverse credibility findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Nothing said by the first applicant from the bar table identified any jurisdictional error. 

21. In relation to ground 1, there was no reference to a survey or survey document in the material before the Court or by the Tribunal in its reasons.  Taking ground 1 at its highest as referring to the applicant’s claims and evidence, it is apparent that the Tribunal took into account the applicant’s claims and evidence and made findings in relation to each of the integers of the applicants’ claims.  Ground 1 fails to identify any jurisdictional error.

22. In relation to ground 2, there is no fact that was identified that was said to be relevant that the Tribunal failed to take into account.  Ground 2 fails to make out any jurisdictional error. 

23. In relation to ground 3, I accept the first respondent’s submission that this is nothing more than an impermissible invitation for this Court to review the merits.  This Court does not have power to review the merits of the matter.  Ground 3 fails to make out any jurisdictional error. 

24. The application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 August 2016