BJT17 v Minister for Immigration

[2020] FCCA 1336

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJT17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1336

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal denied the applicant procedural fairness –no jurisdictional error made out – application dismissed.

Legislation:

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

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: BJT17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 186 of 2017

Judgment of: Judge Street

Hearing date: 25 May 2020

Date of Last Submission: 25 May 2020

Delivered at: Sydney

Delivered on: 9 June 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Mr M Sunits via Microsoft Teams
AGS

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 186 of 2017

BJT17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (‘the Tribunal”) made on 10 March 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. On 10 November 2005, the applicant entered Australia as the holder of a tourist visa valid for two weeks from the date of arrival. On 25 November 2005, the applicant first applied for a protection visa. On 4 January 2006, the protection visa was refused. On 1 February 2006, the applicant sought a review of the refusal to grant the protection visa. On 29 March 2006, the Refugee Review Tribunal affirmed the decision to refuse the applicant a protection visa.

3. On 17 April 2014, the applicant applied for the Protection visa on the grounds of complimentary protection, consistent with the decision of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. The applicant, in summary, claimed to fear harm because he ran a construction business in China, which collapsed, and the investors accused him of fraud. The applicant also alleged that the authorities in his village seized his land and, if he were to return to his village, they would harass and threaten him for the purpose of the return of their money.

4. The applicant also originally claimed that he left China to escape punishment as a Falun Gong follower. In the course of the hearing before the Tribunal, the applicant acknowledged that he was not making a claim based on being a Falun Gong practitioner and that he accepted that he had made a false claim. The applicant alleged, however, that he was advised to do so by his previous migration agent.

5. On 22 April 2015, the Delegate refused to grant the applicant a Protection visa.

6. On 5 May 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. By letter dated 8 November 2016, the Tribunal invited the applicant to attend a hearing on 6 December 2016 before the Tribunal. The applicant appeared on that date to give evidence and present arguments.

7. The Tribunal in its reasons identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims, and, in particular, the acknowledgement by the applicant that he had advanced a false claim.

8. The Tribunal identified inconsistencies between the applicant’s claims at the Delegate’s interview and the Tribunal hearing compared with those in his written application for a Protection visa. The Tribunal did not accept that the inconsistencies could be explained through mistranslation or misunderstanding. The Tribunal found that the applicant exaggerated or fabricated particulars of his claim in order to strengthen his prospects of obtaining a Protection visa.

9. The Tribunal identified that the applicant’s family is still living in China.

10. The Tribunal referred to the applicant’s claims in relation to still owing people money. The Tribunal was prepared to accept that the first applicant borrowed money for a substantial project and that the business deal went wrong and being cheated by a particular person.

11. The Tribunal found the applicant’s evidence about the “mafia way” and being abducted and beaten to be less persuasive. The Tribunal formed the impression that the applicant was making up details on the spot in response to questions asked by the Tribunal rather than accounting events that actually happened. The Tribunal found that the applicant’s responses were vague and lacking in detail that would be expected in respect of a person who had been abducted for two days and beaten.

12. The Tribunal accepted that there were people asking the applicant to repay money that they had invested with him and that this was a stressful situation. The Tribunal did not accept, however, that the applicant was physically harmed, abducted or otherwise hurt or beaten or cut with a knife.

13. The Tribunal explored with the applicant how the business went wrong and the applicant going to Hong Kong for a few months to try and find the particular person that had caused it to go wrong and returning to China from Hong Kong and then allegedly going into hiding.

14. The Tribunal explored with the applicant the work he undertook whilst hiding. The applicant said that he was a tiler/bricklayer and could build houses.

15. The Tribunal explored with the applicant why the people would still be angry with him. The Tribunal raised with the applicant that before he left China, for two years he had lived, worked and saved, and that he made no mention of being harmed during that period.

16. The Tribunal also referred to the applicant’s claim that he might be sued.

17. The Tribunal did not accept that there is a real risk of the applicant suffering significant harm now or in the reasonably foreseeable future if he were to return to China. The Tribunal did not accept that the applicant faces a real risk of significant harm from the people who had invested in his project if he were to return to China.

18. The Tribunal identified the period of time since which the applicant has been in Australia and that the business collapse occurred in 2001. The Tribunal also took into account that the applicant sold his property to repay creditors and has been sending money to them from Australia. The Tribunal found it unlikely that any anger now would be at the same level as 15 years ago. The Tribunal took into account that the applicant had repaid certain moneys.

19. The Tribunal found the applicant’s claims of being physically injured while in China not to be credible.

20. The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to China from Australia, there is real risk he will suffer significant harm. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

21. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 30 March 2017.

2. On 7 June 2017, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant maintained that his claims were all genuine. The Tribunal part accepted the applicant’s claims in respect of a failed project but did not accept the applicant’s claims in relation to having been harmed. The adverse findings by the Tribunal were open for the reasons given by the Tribunal, as summarised above. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

5. The applicant also raised that he had received a letter that his name may have been made public through a search access function on the Commonwealth Courts portal. The letter in that regard identified a potential breach of s 91X of the Act in relation to the applicant’s name.

6. The Court raised with the applicant why the disclosure of his name would give rise to any problems if he returned to China. The applicant contended that someone to whom he owed money might be able to put him in jail. When the Court sought to explore with the applicant why he would face any risk of harm from the disclosure of his name, the applicant then contended that the government would know that he had applied for protection.

7. The applicant did not advance any claim to fear harm from the government in his application for protection relating to complimentary protection. The applicant’s name would have been known to the investors who might sue him or pursue him. Those investors were the subject of consideration of the applicant’s claims by the Tribunal and the Tribunal rejected the applicant’s claims that he had been harmed relating to that failed business.

8. There is no suggestion that any breach of s 91X of the Act in the disclosure of the applicant’s name gave rise to the disclosure or access to the applicant’s claims for protection. The disclosure of the applicant’s name and potential breach of s 91X of the Act does not give rise to any jurisdictional error by the Tribunal or, in the circumstances of this case, any basis by reason of which the Court should find that the decision of the Tribunal should be set aside and the matter remitted for further consideration.

9. The first respondent submitted that the disclosure did not give rise to any jurisdictional error. The Court accepts that submission.

10. No jurisdictional error arises by reason of the disclosure or potential disclosure or potential access through the search function on the Commonwealth Courts portal in respect of the applicant’s name.

11. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the Application

1. The grounds in the application are as follows:

   1. The Tribunal made a finding without supporting evidence, namely, the Tribunal made the finding that the applicant was fabricating claims to strengthen his claim for protection rather than expressing what the applicant believed to be the case.

   2. The Tribunal failed to consider the relevant matter, namely, the result of being sued or being accused of swindling would lead to violence which can cause significant harm.

   3. The Tribunal failed to consider the Hukou system in China. Although the applicant may go to work in other cities in his working life, he, in the end, still has to return to his home village for his social and health benefits. When he is to return his home village, the significant harm is foreseeable.

   4. The Tribunal failed to afford procedural fairness.

Ground 1

1. In relation to ground 1, the Tribunal was entitled to evaluate the credibility of the applicant’s claims. The Tribunal identified logical and rational reasons as summarised above for not accepting the applicant’s claims to have been harmed by the “mafia way” or others in respect of the failed venture. The Tribunal’s reasons in that regard cannot be said to lack an evident and intelligible justification and were open on the evidence. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

2. Accordingly, no jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, it is apparent that the Tribunal made express reference to the applicant’s proposition of being sued as a result of the failed venture but found, in the absence of harm having been suffered by the applicant, that this did not give rise to a real risk of significant harm.

2. The reference to swindling in the applicant’s ground 2 is not the subject of a separate claim, referring to swindling leading to violence. It is, however, apparent that the Tribunal considered the applicant’s claim that the investors would seek to harm the applicant because of the failed venture and that they had harmed him in the past and rejected those claims. This finding subsumed the applicant’s reference to swindling. There is no failure to consider an integer of the applicant’s claims.

3. Accordingly, no jurisdictional error arises by reason of ground 2.

Ground 3

1. In relation to ground 3, there was no claim advanced by the applicant in relation to the Hukou system. Accordingly, no jurisdictional error arises in relation to ground 3.

Ground 4

1. In relation to ground 4, on the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. Further, on the face of the Tribunal’s reasons, the Tribunal raised with the applicant the issues of concern. In relation to the applicant’s claims, on the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal.

2. Further, on the face of the material before the Court, the Tribunal had a real, genuine and intellectual engagement with the applicant’s claims and evidence. There is no basis to find that there was any denial of procedural fairness in the conduct of the review by the Tribunal.

3. Accordingly, no jurisdictional error is made out by ground 4.

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

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 9 June 2020