BLB17 v Minister for Immigration

[2017] FCCA 3091

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLB17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3091

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – there is no aspect of the applicant’s claims or evidence that has been identified that the Tribunal misunderstood – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 476

Applicant: BLB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1022 of 2017

Judgment of: Judge Street

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Sydney

Delivered on: 11 December 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms J Strugnell
Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1022 of 2017

BLB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

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 13 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and her claims were assessed against that country. The applicant first travelled to Australia on 6 July 2014 on a multiple entry three month Business (subclass FA 600) visa granted offshore on 18 June 2014 and in effect until 2 November 2014. The applicant complied with the conditions of the visa and departed Australia on 10 July 2014. The applicant travelled to Australia for a second occasion on 2 August 2014. It was not until 17 September 2014 that the applicant lodged an application for a protection visa.

3. The applicant claimed that she was a member with her family members of the Local Church in China. The applicant alleged that although she was baptised, she did not participate in activities during her marriage from 2002 until 2012. The applicant alleged she returned to church activities following her divorce. The applicant alleged that in 2013 she was dobbed in for participating in Local Church activities and fined while her father was beaten.

4. The applicant alleged that in 2014 she was investigated for storing and transporting Recovery Bibles with another sister and was again dobbed in. The applicant alleged she fled to Australia but a few days after she received a call from her sister who advised her it was safe to return. The applicant alleged she returned to China and when she realised the call was an elaborate trap by the police, then she fled back to Australia. The applicant alleged that the police continue to look for her and that her father has been injured by them.

The delegate’s decision

1. On 2 July 2015, the delegate found the applicant with full knowledge provided bogus documentation to the Department in order to fraudulently obtain a Business visa to travel to Australia.

2. In relation to the applicant’s church activities, the delegate found there was conflicting information that affected the applicant’s credibility. The delegate found the applicant was not a genuine practicing Christian in the Local Church. The delegate found the applicant’s claims in relation to detention by the authorities and release after three days to be implausible. The delegate found the applicant’s claim to have delivered Recovery Bibles in China not to be credible and found the applicant had not been arrested or questioned, tortured or fined for transporting Recovery Bibles in China.

3. The delegate found that if the applicant feared serious or significant harm in China after her alleged arrest in February 2014, she would not have waited five months to depart China. The delegate found the applicant’s claims for protection were not credible and found the applicant was not a witness of truth.

The Tribunal’s decision

1. The applicant applied for review on 29 July 2015. By letter dated 22 December 2016, the applicant was invited to attend a hearing on 6 March 2016. The applicant appeared on that date to give evidence and present arguments. The Tribunal identified the background to the review application. The Tribunal incorporated into its reasons an annexure setting out the relevant law as well as Attachment B setting out country information.

2. The Tribunal summarised the applicant’s claims and evidence. The Tribunal also identified that at the outset of the hearing, the applicant indicated she was allegedly stressed about something that had happened to her family in China and said that her father was in hospital. The Tribunal raised with the applicant whether she wanted the hearing adjourned to another day and she said she wanted to continue.

3. The Tribunal identified that it could adjourn the hearing till later in the week or next week and the applicant again confirmed that she wished to continue. The Tribunal took a brief adjournment to let the applicant consider whether she was well enough to continue, and on resumption, the applicant again confirmed that she wished to continue with the hearing. The Tribunal identified that the applicant could indicate during the hearing if she wanted a break and that the Tribunal was still happy to adjourn the matter to another day. The applicant was emotional at times but determined to finish the hearing. The Tribunal expressly referred to taking into account the applicant’s illiteracy and lack of education. The Tribunal found the applicant had no difficulties in understanding and answering the questions. The Tribunal found the applicant was able to fully participate in the hearing.

4. The Tribunal found the applicant was not credible when discussing her membership and her family’s membership of the Local Church in China, as well as in respect of her claim that she was fined for participating in Local Church activities in 2013 and in respect of her claim that she had a role in transporting or storing Recovery Bibles, or in relation to her claim about her family having been harmed when local police were looking for her and when discussing her beliefs and practices in the Local Church.

5. The Tribunal did not accept as credible the applicant’s reasons for returning to China after arrival to Australia in June 2014. The Tribunal found the applicant not to be credible in relation to her claims. The Tribunal found not credible the applicant’s claim that she became an active member of the Local Church in China and that she continued to practice her faith while in Australia. The Tribunal did not accept the applicant was a member of the Local Church in China.

6. The Tribunal was not satisfied the applicant would be subject to serious or significant harm in China for the reason of her involvement in the Local Church in China. The Tribunal was not satisfied the applicant would be subject to serious or significant harm in China for reason of her occasional involvement with the Local Church in Australia.

7. The Tribunal did not accept the applicant was arrested, detained and fined for her attending gatherings of the Local Church in her area. The Tribunal found that claim to have been made to bolster the applicant’s claims for protection.

8. The Tribunal identified the inconsistencies in the applicant’s claims in relation to delivering Recovery Bibles, notably the different accounts of the number of times the applicant was involved in delivering Bibles, which years this occurred, who owned the car she drove and whether they were driving across Provincial borders or within a particular province. The Tribunal discussed those inconsistencies at the hearing and did not find the applicant’s explanations to be credible.

9. The Tribunal found the applicant was not involved with the Local Church in China. The Tribunal found the applicant had no role in transporting Recovery Bibles as claimed. The Tribunal found this claim had been fabricated solely for the purpose of bolstering the applicant’s application for protection.

10. The Tribunal took into account the applicant’s disadvantaged background and limited education with physical and mental health issues. The Tribunal did not accept the applicant’s explanation as credible in relation to her return to China in July and the reasons why she returned to Australia on 2 August 2014.

11. The Tribunal identified the applicant’s claims had been manufactured to support her claim for protection in Australia. The Tribunal found there is not a real chance the applicant will suffer serious harm for reason of her religion or imputed religion or for any other Convention reason now or in the reasonably foreseeable future. The Tribunal found that the applicant’s fear of persecution in China was not well founded.

12. The Tribunal found there are not substantial grounds for believing that the applicant will be at risk or significant harm for any reason if she returns to China. The Tribunal was not satisfied the applicant is a person in respect for whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act and affirm the decision under review.

Before this Court

1. At the commencement of the hearing, the Court explained to the 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 excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

2. The Court explained that it would have identified the evidence, then hear submissions from the solicitor for the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

The applicant’s submissions from the bar table

1. From the bar table, the applicant identified that there had been an incident involving her father just before the hearing. That was an incident referred to in the Tribunal’s reasons and the applicant identified, as summarised in the Tribunal’s reasons, that she wished to proceed with the hearing and the Tribunal was satisfied that the applicant was able to understand and participate in the hearing.

2. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. The applicant maintained that the information that she had provided was true and that she had further information that could support her claims. The Court explained again to the applicant that the Court’s powers were limited to considering whether the Tribunal’s decision was unlawful or unfair. The applicant submitted that she felt the decision was unfair. This in substance, reflects a disagreement with the adverse findings of the Tribunal. For the reasons given by the Tribunal as summarised above, the adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

3. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. In substance, the applicant’s submissions from the bar table invited this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.

4. The orders sought by the applicant in the application are as follows:

   1. I couldn't agree with the decision made by AAT to town down my review application for the following reasons.

   2. Firstly, the decision is unfair and inconsiderable and lack of compassion to my special circumstance, especially my desperate family background and level of illiteracy. Tribunal failed to give a good consideration into my account to specify my Christian faith with Local Church. Tribunal's view on my credibility is hard to believe as I have addressed my story according to my understanding and knowledge indeed.

   3. 1 don't think tribunal has taken seriously and thoroughly in my statement especially my commitment in Local Church practice and its risk for the undergrounded activities are targeted in China. 1 don’t think my explanation given in the hearing. is vague and inconsistent in spite of some mistakes may exist due to my poor inability to express.

   4. My impression is that tribunal has misunderstood my account and took it for granted. I don't think tribunal put sympathy to my family background and ignored my risk and strong desire in embracing my religion. Tribunal also overview the stark religious situation in China especially the pressure and challenge imposed on house church in rural areas in China.

   5. Tribunal failed to well consider my explanation about the reason why I travel to Australia twice and the reason for waiting for five months to leave China. Tribunal's assessment is reckless and hypothetical. I don't think tribunal's assessment on my religion is justified and persuasive as my commitment on Local Church practice is realistic and practical. Tribunal failed to consider my response to all the questions raised in the hearing and share no compromise to my honesty in correcting myself and my attitude for confession.

   6. Tribunal failed to make a necessary investigation or inviting queries on my difficulties through the courses after I arrived in Australia especially how 1 pursue my faith by coping with various difficulties. Tribunal's decision and subjective view are overwhelmed and far from realistic and responsible hearing.

   7. AAT gave no more good consideration on my illiteracy and fail to invite me for comments off hearing for the pending issues and I feel so sad for missing such valuable opportunity I deserve.

5. The grounds in the application are as follows:

   1. As a Chinese national and Local Church adherent, I came from rural area of China. I have suffered hard experience in China with oppression and intimidation imposed by police and local government. I am illiterate and poor to read and express. I survive on my faith and cope with various difficulties and hardship through Holy Spirit and church fellowship.

   2. I have strong fear to return to my origin due to religious repression and persecution. After entering Australia, I have gained financial assistance from Local Church and I spare no effort in church congregation after locating Local Church in Sydney afterwards. I depend on my new life, hope and wellbeing in Christ.

   3. The reality is that Local Church in China has been outlawed and treated as evil cults for over decades. Converts and fellowship are targeted, persecuted and socially disturbed. As committed Christian, I stick to my faith and maintain a constant religious practice after arrived in Australia. I firmly believe I will face life and freedom challenge if go back to China as the religious situation in my origin has yet to be improved.

   4. For sake of my religious freedom, I wish to be protected by Australian government. I wish to live with my current church environment and fellowships so that I can evade from religious oppression and persecution that may challenge me any time in my pursuing of faith in China.

The Court’s reasoning

Orders Sought by the Applicant

Paragraph 1

1. In relation to paragraph 1, the disagreement with the Tribunal’s decision does not of itself identify any jurisdictional error. The Tribunal’s reasons reflects an orthodox approach to the determination of the applicant’s claims and the Tribunal made dispositive findings in respect of those claims that were open to the Tribunal for the reasons given by the Tribunal. No jurisdictional error is made out by paragraph 1.

Paragraph 2

1. In relation to paragraph 2, it is apparent that the Tribunal took into account the applicant’s background and the findings of inconsistencies in rejecting the applicant’s claims in respect of her participation in the Local Church. The Tribunal found the applicant could reasonably participate in the hearing.

2. The applicant’s disagreement with the adverse credibility findings made by the Tribunal does not identify any relevant error. Those adverse findings were not irrational, illogical or unreasonable. No jurisdictional error is made out by paragraph 2.

Paragraph 3

1. In relation to paragraph 3, for the reasons already given, it was open to the Tribunal to make the adverse credibility findings in respect of the applicant. On the face of the material before the Court, the Tribunal correctly summarised the applicant’s claims and made dispositive findings. The inconsistent findings in respect of the applicant being a member of the Local Church as well as her travel history cannot be said to be trivial or insignificant. No jurisdictional error is made out by paragraph 3.

Paragraph 4

1. In relation to paragraph 4, there is no aspect of the applicant’s claims or evidence that has been identified that the Tribunal misunderstood. The Tribunal took into account country information and made adverse findings that were open to it. The rejection of the applicant’s evidence for the reasons given by the Tribunal were open and does not amount to the Tribunal ignoring the applicant’s evidence. No jurisdictional error is made out by paragraph 4.

Paragraph 5

1. In relation to paragraph 5, this in substance again reflects a disagreement with the adverse findings by the Tribunal. The Tribunal made adverse findings as to the applicant’s explanation as to why she travelled to Australia twice. The adverse findings by the Tribunal were open. No jurisdictional error is made out by ground 5.

Paragraph 6

1. Insofar as ground 6 seeks to raise an allegation of bias by reason of the adverse findings. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. There was no easily ascertainable critical fact identified enlivening any obligation to make inquiries. Paragraph 6 in substance reflects a disagreement with the adverse findings that were open to the Tribunal for the reasons given. No jurisdictional error is made out by paragraph 6.

Paragraph 7

1. In relation to paragraph 7, no information was identified enlivening any obligation under s 424AA of the Act. As already indicated, the Tribunal took into account the applicant’s literacy and the adverse findings were open on the material before the Tribunal. No jurisdictional error is made out by paragraph 7.

Grounds in the application

1. The grounds in substance repeat the applicant’s claims and do not identify any jurisdictional error. This Court does not have power to revisit the merits and does not have power to grant relief on compassionate grounds.

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

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  9 February 2018

CORRECTIONS

1. Reasons for Judgment: Page 1, Paragraph 2, delete “his” insert “her”.