BKP15 v Minister for Immigration

[2016] FCCA 1679

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKP15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1679

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – real chance test – whether the Tribunal erred in making adverse credibility findings against the applicants – whether the Tribunal failed to consider an integer of the applicants’ claims – whether the applicants’ credibility was raised as a live issue by the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 116, 476.

First Applicant: BKP15

Second Applicant: BKQ15

Third Applicant: BKR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1980 of 2015

Judgment of: Judge Street

Hearing date: 6 July 2016

Date of Last Submission: 6 July 2016

Delivered at: Sydney

Delivered on: 6 July 2016

REPRESENTATION

The first applicant appeared in person.

Counsel for the First Respondent: Mr H Bevan

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1980 of 2015

BKP15

First Applicant

BKQ15

Second Applicant

BKR15

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 26 June 2015 affirming a decision of the delegate not to grant the applicants’ Protection (Class XA) visas. The first and second applicants are wife and husband, and the third applicant is their child. The applicants were found to be citizens of China and their claims were assessed against that country. The first applicant arrived in Australia on 17 June 2007 in possession of a subclass 571 student visa.

2. The first applicant was granted a subsequent subclass 571 visa which was valid until 20 July 2009.  The first applicant departed Australia on 1 January 2009 and re-entered Australia on 18 February 2009.  The first applicant was issued with a noncompliance notice on 24 March 2009 for deferring her course of study.  On 20 July 2009 a decision was made to cancel the first applicant’s student visa.  On 20 July 2009 the first applicant was granted a subclass 572 visa valid until 28 November 2010.

3. The first applicant was issued with a noncompliance notice on 16 October 2009 when she did not commence her course of study.  The first applicant then remained in Australia as an unlawful non-citizen from 29 November 2010 until 2 August 2011 when she lodged an application for protection.

4. The second applicant arrived in Australia on 30 June 2007 in possession of a subclass 571 student visa.  The first applicant was granted a subsequent subclass 571 visa with permission to work on 28 July 2007.

5. On 16 June 2008 the second applicant was issued with a noncompliance notice for failing to commence his course of study. On 8 April 2009 the second applicant’s student visa was cancelled under s.116 of the Migration Act 1958 and the second applicant then remained in as an unlawful non-citizen, from 9 April 2009 until 2 August 2011 when he was included as a dependant in the protection application that was made by the first applicant.

6. In 2011 the first applicant gave birth to a daughter who was included as a dependant in the application for protection on 2 August 2011.  The first applicant’s claims were that she became a Mormon and was baptised in Sydney in July 2007. The first applicant claimed that her mother was a preacher and involved in missionary work in a family church in China, although her father did not approve. The first applicant alleges that when she returned to China in 2009 she claimed that the church gathering was raided by authorities resulting in her and her mother being detained before their release was secured through payment of a fine.

7. After the first applicant’s return to Australia, she claimed her family was harassed by police with a consequence that the family business went bankrupt such that she could no longer support her studies.  The first applicant claimed that both her and her husband’s parents disapproved of their marriage.  The first applicant also claimed that she had sent information and photographs about Chinese Christians joining the Jasmine Revolution which resulted in her friend being taken by the police.

8. The first applicant claimed to fear harm in China on account of her religion and the imposition of financial penalties associated with her marriage and her child.  The first and second applicants have had a further child who, although not included in the application for protection, was included in the Tribunal’s consideration of the applicant’s claims.  The Tribunal set out the applicants’ claims and found that the first and second applicants were not witnesses of truth concerning matters central to and related to their claims of past persecution and future fears.

9. The Tribunal made adverse credit findings for detailed reasons that were open on the material before the Tribunal the findings cannot be said to lack an evident and intelligible justification. The Tribunal concluded that the first applicant was not a witness of truth and that she had fabricated her claims in order to allow her and her family to stay in Australia and that she was prepared to make any claim in order to remain in Australia.  The Tribunal concluded that the second applicant was not a credible or a reliable witness. The Tribunal found the second applicant was not a witness of truth and that he had fabricated claims in order to allow him and his family to stay in Australia and that he, too, was prepared to make any claim in order to remain in Australia.

10. Relevantly, the Tribunal found that the applicants could pay the fee in relation to the third applicant as well as in relation to their further child.  The Tribunal was not satisfied on the evidence before it that the applicants, including the further child, face a real chance of societal discrimination, stigma or ostracism that is sufficiently serious to constitute serious harm or a real risk of significant harm.  The Tribunal found that neither applicant had a genuine fear of forced sterilisation.  The Tribunal found that it was not satisfied that the adult applicants would be subjected to serious or significant harm as a result of China’s family planning.  Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that there is a real chance of the applicant suffering serious harm as a result of breach of China’s family planning laws, religion, adverse attention from authorities or society communication or for any other reason.  It was in those circumstances that the Tribunal concluded that the applicants did not have a well-founded fear of persecution for any reason including for a Convention reason. 

11. The Tribunal was not satisfied that the applicants faced a real risk of harm in the form of discrimination, ostracism, or harm from the authorities in any form such as forced sterilisation or harm at the hands of society or community. The Tribunal is not satisfied that any of the consequences of a return to China for the applicants would constitute significant harm. It was in those circumstances the Tribunal found that the applicants did not satisfy the criterion under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate. 

12. On 20 August 2015, a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, put on affidavit evidence and submissions.  No such documents were filed by the applicants.  The application identifies the grounds as being an attachment which relevantly provides as follows:

    Orders sought by Applicant

    1, I don't think the Department of Immigration and RRT's have reasonably considered my appealing ground due to my committed faith of Mormonism, in particular my religious background, baptism and church involvement in Australia.

    2, RRT made wrong judgment that I have jointed a Mormon church when I first arrived in Australia and subsequently, fairly quickly, got baptized and confirmed, was not because I was a genuine Mormon instead of for a company (nice people). This is against the fact and unacceptable. Further more, RRT's decision in my provision of certificate for my baptism and my purpose of attending the church are also against the reality and produced a deviance or distortion to my statement and explanation. (82-86 on page 20-21)

    3, RRT failed to prudently consider my religious risk and unreasonably and comprehensively consider the harsh practice of underground church in my origin although some churches may share freedom from time to time but the current government hostile policy against family church is just against the real, demolished church in rural area is prevailing.

    The Grounds of the Application are:

    1, I am on a Chinese student background with committed Mormonism faith. With family religious background, I had fear of being persecuted in getting involved in house church in China. The underground church practice caused trouble and repression to my family and I was implicated psychologically.

    2, As committed follower, I have initially involved in Mormon Church when I arrived in Australia at early stage and received baptism. I have kept on my faith and church practice till present in spit of difficulties. My faith is genuine and down to earth in life. I have endeavored in preaching and evangelizing gospels and generated fresh recruitment in church. As a pious Mormon I will bring my faith throughout life wherever I go.

    3, I have a concern of being punished due to our breach of China's Family Planning Law. I am currently a mother of two children and the social compensation imposed on our family of rural background, according to China's Family Planning is overwhelming and far beyond our capability to reach. My family lack of ability to cope with overwhelming social compensation imposed by Family Planning authority due to our breach. Our entire family will inevitably fall into a vulnerability and desperation and survive our life in stressfulness and hardship which amount the harms and torture of wellbeing.

13. 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 a relevant legal error.  The Court explained to the first applicant that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicants.  The Court explained that this in substance meant the Court was determining whether the decision was made lawfully and whether the decision was made fairly. 

14. The first applicant confirmed that she understood the explanation provided by the Court. The Court explained that it would have identified the evidence and then hear submissions from the first applicant and then hear submissions from counsel for the first respondent and hear any submissions by the first  applicant in reply.  The first  applicant confirmed that she understood what was said by the Court. 

15. Orally, the first applicant complained that no one believed her and that she had religious beliefs.  The Tribunal made adverse credit findings that were open on the material before it.  Nothing said by the first applicant from the bar table identified any arguable ground of jurisdictional error.  In relation to the application, the three grounds under the heading “Grounds of Application” are in substance a repetition of the applicants’ claims and do not identify any arguable jurisdictional error.

16. In relation to the three paragraphs under “Orders Sought”, the applicants seek to cavil with the adverse findings by the Tribunal. The applicants were invited to attend a hearing before the current Tribunal on 9 September 2014 which the applicants attended to give evidence and present arguments. 

17. The applicants were assisted by an interpreter.  The first respondent has tendered the transcript of that hearing from which it is apparent that the credibility of the applicants was raised as a live issue.  I am satisfied that the applicants had a genuine hearing and it is apparent from the structure and content of the Tribunal’s reasons that the Tribunal addressed the applicants’ claims. The Tribunal cannot be said to have failed to comply with its statutory obligation. The Tribunal, on the material before this Court, has not failed to comply with the requirements of procedural fairness in the conduct of the review.

18. The assertion that the Tribunal made any wrong judgment does not identify any jurisdictional error. It was a matter for the Tribunal to determine the applicants’ credibility.  It is apparent that the Tribunal did consider the applicants’ claims in relation to religion as well as in relation to family planning and the adverse findings as indicated cannot be said to lack an evident and intelligible justification.  Nothing in paras.1 to 3 under the orders sought by the applicants identifies any jurisdictional error. The applicants have failed to establish any jurisdictional error. The application is dismissed. 

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

Date: 19 July 2016