BKD15 v Minister for Immigration

[2015] FCCA 3110

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKD15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3110

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – Protection (Class XA) visa – show cause hearing – whether adverse findings were open on the material before the Tribunal – whether bias – no jurisdictional error – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), ss.424A, 425, 476

Applicant: BKD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1969 of 2015

Judgment of: Judge Street

Hearing date: 20 November 2015

Date of Last Submission: 20 November 2015

Delivered at: Sydney

Delivered on: 20 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Maddocks
DLA Piper

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1969 of 2015

BKD15

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 to a decision of the Tribunal made on 22 June 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of China, and his claims were assessed against that country. The applicant arrived in the state on 4 October 2009 as the holder of a subclass 676 visa which expired on 4 January in 2010. The applicant thereafter remained in Australia as an unlawful person until he was granted a bridging visa after lodging an application for protection on 14 March 2014.

2. The delegate refused to grant the visa on 28 July 2014, and the applicant applied for review on 1 September 2014.  On 5 May 2015, the applicant was invited to attend a hearing before the Tribunal on 18 June 2015.  The applicant appeared on that date to give evidence and present arguments before the Tribunal and was assisted by an interpreter.  The Tribunal found the applicant was not a witness of truth and that his evidence was vague, implausible and inconsistent.  The applicant claimed to fear harm in China on the basis that he is a Falun Gong practitioner and had sent Falun Gong material from Australia to his aunt in China. 

3. The Tribunal found the applicant’s claim to have sent Falun Gong material to his aunt in China was unconvincing as his evidence kept on changing and found that it would be implausible for the Chinese authorities that monitor his mail to his aunt and concluded that the applicant’s claims were fabricated.  The Tribunal found the applicant had learnt information about Falun Gong by rote so that he could answer questions about Falun Gong, but was not convinced that he had any personal belief or conviction on Falun Gong. 

4. The Tribunal did not accept the applicant’s claims and evidence about his involvement with Falun Gong. The Tribunal concluded that all the applicant’s claims had been fabricated. By order of a registrar of this Court on 13 August 2015, the matter was fixed for a show cause hearing pursuant to r.44.12. The applicant was given the opportunity to file an amended application, affidavit evidence and submissions. No such document were filed. From the bar table, the applicant raised that the Tribunal had failed to consider his claims and evidence.

5. It is clear from paras.10 and 13 of the Tribunal reasons that the Tribunal set out the applicant’s claims and made adverse findings relevantly in paras.17 and 39.  The applicant made reference to his wife and having lost a baby, and it is clear from the Tribunal’s reasons that the applicant is now divorced from his wife.  The applicant indicated it would not be safe for him to go back and made reference to being a Falun Gong practitioner. 

6. It is clear that the Tribunal took into account the applicant’s claim of involvement with Falun Gong and rejected the applicant’s claims.  Those adverse findings made by the Tribunal cannot be said to lack an evident and intelligible justification.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error. 

7. The grounds of the application are as follows:

   Orders sought by Applicant

   I believe the decision made by RRT is unfair and unreasonable for me as my statement and explanation in hearing have not been able to well consider. The Tribunal's view in my claim lacks of evidence against the fact, especially my belief and practice in Falun Gong are not thoroughly and prudently given a review. I am stressful for Tribunal's decision which is depressed and psychologically stricken.

   RRT has given less consideration and devalued the implication on me, a victim in my broken marriage due to my commitment, persistence and consistence of Falun Gong belief. I actually have fallen into vulnerability in which marriage and child end up aborted.

   RRT failed to take into account of my claim and evidence provided and made decision unadvisedly, failed to give me any chance to make a comment or provide additional information to the outstanding issues or queries.

   The Grounds of the Application are:

   As a Chinese national and committed Falun Gong practitioner, I have pursed my belief and practiced it in Australia. I have involved in the Falun Gong group practice, study, and telling truth event to promote the glory, and essence of Fa Lun Dafa in public. Bearing a fear to be persecuted. I lodged my application for protection.

   I became a victim of my broken marriage and divorced by my ex-wife who denied my Falun Gong belief. I also lost my on- going child after failure of marriage as my ex-wife decide to denounce my Falun Gong status and social ties under her political stress in China.

   I was greatly influenced by one of my relatives, a Falun Gong practitioner in China who is currently under government surveillance and deprived freedom of practice. I have been implicated in the communication or contact with her about transmitting Falun Gong materials on line. This also amounts potential harm and great danger to me, increasing my concern to return for safety reason.

8. The grounds appear to be an impermissible challenge to the adverse findings on the merits of the matter.  They do not disclose any arguable jurisdictional case. To the extent that it is suggested that the Tribunal’s reasons were unreasonable or unfair, it is clear that the applicant was invited to attend the hearing and give evidence and present arguments consistent with the statutory regime.  There is no arguable case that the review was unreasonable or unfair. 

9. It was a matter for the Tribunal to determine the applicant’s credit, and the adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  Further, the adverse findings by the Tribunal do not support an allegation of bias.  Bias must be clearly alleged and properly proven.  The adverse findings by the Tribunal are not a basis upon which bias can be made out, and the grounds failed to disclose any arguable case of bias.

10. Insofar as the grounds seek to advance an issue under s.424A, I accept the first respondent’s submission that no information was identified that enlivened an obligation under s.424A(1). No arguable case of breach of s.424A or s.425 is made out.

11. It is clear that the Tribunal made adverse findings that were open in relation to the applicant’s alleged practice in Falun Gong. The application fails to disclose any arguable case. I am satisfied that this is an appropriate matter to exercise the Court’s powers under r.44.12. The applicant is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 November 2015