BLM16 v Minister for Immigration

[2018] FCCA 2315

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLM16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2315

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant – applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – Applicant seeks to engage in impermissible merits review – no basis to claims of jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A

Cases cited:

AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143

AWA15 v Minister for Immigration [2018] FCA 604

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

Applicant: BLM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1499 of 2016

Judgment of: Judge Dowdy

Hearing date: 21 September 2017

Delivered at: Sydney

Delivered on: 22 August 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr J. Hutton

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 14 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1499 of 2016

BLM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of China aged 52 years, having been born on 14 October 1965.

2. By Application filed in this Court on 14 June 2016 he seeks to quash and impliedly have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 12 May 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 17 October 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa). 

Background

1. The Applicant arrived in Australia on a Student Guardian (Subclass 580) visa on 31 July 2007. He applied for a Protection visa on 6 August 2007 (first Protection visa application). This application was refused by a Delegate of the Minister on 27 August 2007. This refusal was affirmed by the Tribunal (then the Refugee Review Tribunal) on 28 February 2008 and this Court (then the Federal Magistrates’ Court) dismissed an application for judicial review of that Tribunal’s decision on 2 June 2008. The Applicant then became an unlawful non-citizen 28 days following that decision, being 30 June 2008.

2. Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, on 26 November 2013 the Applicant again applied for a Protection visa (present Protection visa application), which is the subject of this proceeding.

Claims for Protection

1. In his present Protection visa application the Applicant included a Statement (stamped as received by the Department of the Minster on 6 August 2007) which had been part of his first Protection visa application. In that Statement and in the present Protection visa application itself the Applicant made the following factual claims:

   a)he was born in Fuqing City in Fujian Province in China on 14 October 1965, and came from a poor family and did not have a good education. After primary school he went to Nanping City to work as a labourer;

   b)he married in July 1989 and there were two sons of that marriage;

   c)he worked as a labourer on various construction sites for eight years, but in 1993 became a fisherman and on 20 July 2001 he went out fishing with his wife and other villagers but there was a gale which sank the boat and caused the death of 20 fishermen (the gale incident). The Applicant and his wife survived;

   d)his wife was a Christian and after the gale incident he became a Christian; and

   e)he began telling other fishermen of his experience and of Christianity and successfully converted many of them. His village was mainly Buddhist, and those who were Christians attended a Government Church. He did not attend the Government Church because he practised his religion on his boat and there were strained relations between the Government and the fishermen in his village.

2. In a second statement dated 15 November 2007 (also included as part of the present Protection visa application and presumably previously used for the purposes of the first Protection visa application) the Applicant made these claims:

   a)his father was from Taiwan and so in his village the Applicant had no standing and was persecuted from time to time; and

   b)he often practised Christianity with a female Christian, and as a result of their spending time together the husband of the female Christian believed the Applicant was seducing her, so he and his six brothers beat the Applicant and the Applicant also beat the husband back. In revenge the husband caused photos of the Applicant attending meetings with other fishermen to be sent to the Public Security Bureau (PBS) and the local court. On 17 May 2007 police arrested the Applicant and on 18 May 2007 he had to appear in the local court and after being granted bail he fled to his uncle’s home in a different village. The husband of the female Christian caused the local authorities to search for the Applicant, and in response the Applicant applied for a visa to Australia on 19 July 2007, and arrived in Sydney on 31 July 2007.

3. In a third statement provided to the Minister by the Applicant’s registered migration agent on 7 May 2014 the Applicant reiterated some of his claims and made new claims regarding the Government’s refusal to provide assistance to the children of the victims of the gale incident. He claimed that he opposed the Government’s failure to adequately compensate the families of the victims of the gale incident, and this caused him to receive negative attention from the Government. He claimed to continue to fear harm in China. He also claimed to suffer from racial oppression because his father is an adopted orphan of Taiwanese extraction.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 12 May 2014.

2. In his Decision Record the Delegate summarised the Applicant’s claims to protection as follows:

   • He attended an underground church in China;

   • He was racially oppressed due to being born to an adopted father with Taiwanese heritage;

   • He was accused of 'hooking up with female staff' by the authorities;

   •He breached the family planning regulations and was fined a social maintenance fee which he was unable to pay; and

   •He experienced a typhoon which resulted in the death of many villagers. Following the typhoon he demanded that compensation money be given to the family members of the dead as the government did not properly forecast the weather. This attracted the negative attention of the authorities.

3. In the result the Delegate found that the Applicant’s responses to questions put to him were at times inconsistent with his written statements and the information which he had previously provided to the Department of the Minister and to the Tribunal in the first Protection visa application. The Delegate found that at times the Applicant provided vague and conflicting responses and at other times avoided answering questions asked of him. The Delegate was therefore not satisfied that the Applicant was speaking from his own experience.

4. Further, the Delegate attempted to explore the Applicant’s claimed adherence to the Christian religion at the interview, but was not satisfied that the Applicant displayed competent knowledge about Christianity, which would be reasonably expected of him given his years of claimed practice, and that the Applicant’s knowledge of Christianity’s key concepts was superficial.

5. The Delegate ultimately did not accept that:

   a)the Applicant had experienced any past harm in China;

   b)the Applicant was a political dissident or a rebel whose protests against the poor compensation offered by the Chinese authorities caused him to be detained and summonsed to appear in court;

   c)the Applicant had any outstanding fines payable to the Chinese Government for having breached the Chinese family planning regulations;

   d)the Applicant was, or ever had been, a genuine Christian;

   e)the Applicant had a genuine fear of returning to China; or

   f)there was any ground, either expressed or squarely raised on the evidence, that satisfied the Delegate that there was any basis for finding that the Applicant feared harm for any Refugee Convention reason in China.

6. The Delegate then considered the Applicant’s claims under the complementary protection criterion. I note that the Delegate only had jurisdiction to consider the present Protection visa application under the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). However, in the result the Delegate considered the present Protection visa application on both the Refugees Convention criterion and the complementary protection criterion, but was not satisfied that Australia had protection obligations to the Applicant under either criterion and he refused to grant a Protection visa to the Applicant.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 11 November 2014 for merits review of the Delegate’s decision. The Applicant, under cover of an email from his registered migration agent dated 6 May 2016, sent to the Tribunal a further statement dated 2 April 2016 which contained a number of new claims. One new claim was that after he had come to Australia he had seen a dating advertisement in the Australian Chinese Daily newspaper for a single lady from Shanghai and that he had paid AUD$10,000 to enter into a “fake marriage”, or “business marriage”, with this lady.

2. On 9 May 2016 the Applicant appeared before the Tribunal with his registered migration agent to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages.

3. The Tribunal was of the view that its jurisdiction in considering the application for the Protection visa was limited to the complementary protection criterion under s.36(2)(aa) of the Act and not the Refugee Convention criterion under s.36(2)(a). This view was subsequently confirmed as correct in SZVCH at [44] per Kenny, Siopis and Besanko JJ and [113] – [114] per Mortimer J.

4. In the result the Tribunal was not satisfied that the Applicant would be subject to significant harm if he returned to China and that he did not satisfy the complementary protection criterion, and it affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.

5. At the hearing before the Tribunal the Applicant tendered an undated medical report from a Dr Tariq Khalil, which indicated that as at 25 May 2014 the Applicant suffered from a mildly enlarged liver, as well as a letter from Campsie Family Medical Centre dated 3 March 2016 which indicated that the he was suffering from a sty in his right eye.

6. At [10] – [12] of its Decision Record the Tribunal gave consideration to whether or not the Applicant was capable of meaningfully taking part in the hearing. At [10] the Tribunal recorded that the Applicant had made reference to his “mental state” but had confirmed with the Tribunal that he had not seen a psychologist or psychiatrist in Australia to date. At [11] the Tribunal recorded that it appeared that the Applicant could competently prosecute his case at the hearing and at [12] it recorded that it was satisfied that the Applicant had been given a real opportunity to put evidence and submissions at the hearing.   

7. The Tribunal then proceeded in its Decision Record by foreshadowing at [15] that it was satisfied that the Applicant was not a generally credible witness. At [16] – [33] of its Decision Record the Tribunal considered the Applicant’s claims under the following headings:

   a)The applicant’s fake marriage in Australia.

   b)The applicant’s work in construction.

   c)The gale incident / the brother’s arrest / the 2008 PSB summons for the applicant.

   In the paragraphs of the Decision Record considering these issues the Tribunal recorded various inconsistencies which it found in the Applicant’s claims as made from time to time, as well as implausibilities in those claims as made and also as when considered in light of independent country information.

8. At [34] of its Decision Record the Tribunal recorded its preliminary findings, which were in substance that:

   a)the Applicant sought to engage in a false marriage in Australia for the purposes of remaining in Australia;

   b)the Applicant had worked in construction in China for eight years and then had commenced work as a fisherman;

   c)the Applicant was involved in the gale incident in July 2001 and was thereafter involved in a protest in 2001 that became violent, but that neither the Applicant nor any of his family members had or have any ongoing problem in China arising from their participation in that protest; and

   d)for the reasons set out from [16] – [33] the Applicant was not a generally credible witness and his health had not materially impacted upon his capacity to put his case to the Tribunal.

9. At [37] – [44] of its Decision Record the Tribunal considered each of the gale incident, the subsequent protest in 2001, the profile of fishermen in China and the Applicant’s departure from China, all in the context of independent country information.

10. At [39] the Tribunal recorded its satisfaction that the Applicant and his family did not have any ongoing problem in China arising from their participation in the protest in 2001 and that was the reason that the Applicant was able to reside in his own home and engage in his usual occupation of fishing in China in the seven years after the protest in 2001.

11. At [42] of its Decision Record the Tribunal recorded its finding that, based on country information, persons engaged in fishing in China, without more, do not have a real risk of being harmed for that reason in China.

12. At [46] the Tribunal recorded that it had put to the Applicant that none of the country information which it had considered might satisfy it that a person from Taiwan, or related to persons from Taiwan, without more, would face a real risk of being harmed for that reason in China, and recorded that the Applicant did not allege that this was incorrect.

13. At [48] – [54] of its Decision Record the Tribunal recorded its consideration of any harm that the Applicant might receive as a result of his Christian faith. At [53] – [54] the Tribunal recorded that the Applicant had conceded at the hearing that members of underground churches in China did not now commonly have problems. Based on his concession and given the country information considered by the Tribunal it was not satisfied that the Applicant faced a real risk of suffering any harm for any reason arising from his claimed religious practice, either in China or Australia.

14. At [55] – [58] the Tribunal recorded its consideration of any harm which might result to the Applicant if he returned to China from the accusation of seducing a neighbour’s wife. The Tribunal recorded that the Applicant agreed that he no longer feared harm in China for this reason and based on that concession and country information the Tribunal was not satisfied that he faced a real risk of suffering any harm in China in relation to this false charge of seduction.

15. At [59] – [64] of its Decision Record  the Tribunal considered whether the Applicant might suffer harm from the one-child policy in China, and noted in [63] the Applicant’s admission that he no longer had any outstanding social compensation fee or other penalty owed in China as a result of the birth of his second son. At [64] the Tribunal recorded its finding that based on the Applicant’s admission in this respect, as well as country information, it was not satisfied that the Applicant faced a real risk of suffering any harm in China for this reason.

16. At [65] – [69] the Tribunal recorded its consideration of whether the Applicant would face a real risk of significant harm in China for reasons associated with his lengthy stay in Australia or being a failed asylum seeker and found that he would not.

17. From [70] – [75] the Tribunal recorded its consideration of the Applicant’s claim to fear not receiving medical attention if he was imprisoned in China. At [70] the Tribunal noted that it did not accept that there was a real risk of the Applicant being imprisoned in China, and found otherwise that he would not be subject to any intentional withholding of available medical treatment in China and that the Applicant would be able to access the medical assistance which is usually made available to persons in China.

18. Having rejected all of the Applicant’s claims the Tribunal affirmed the decision of the Delegate not to grant to him a Protection visa.   

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds relied upon by the Applicant are as follows:

   1. I am scared to return back to China, because there really exists the persecution towards me in China. If I returned back to China, I would certainly be monitored by the staff from the Chinese governmental department due to my previous experience. Even I could face prison time losing any freedom or human rights in China.

   2.The Department and the Tribunal doubted my creditability unfair and unreasonable. I hided in mountains for several years after the protest due to the fear of persecution until I got a change to flee to Australia. My brother was arrested in 2008 although it has been several years since the 2001 protest. It is obvious that I will definitely be arrested if I go back to China like my brother.

   3.In terms of my departure from China, I stated that I have paid a large amount of money to an agent to help me flee from China successfully. I am not very clear about what the agent did, but the outcome was what I wanted. I did not use a fraudulent passport was because I knew that was easy to be found. If I was caught, they would find out my relation to the 2001 protest and then I would be sent to the prison immediately. I came to Australia lawfully, but that does not mean there is no real risk of suffering harm in China as the persecution is continuous.

   4.I hope the Federal Circuit Court of Australia could consider my risk of going back to China and do justice for me.

   At the hearing the Applicant unfortunately was not able to make any meaningful submissions in support of his Grounds.

Consideration

Grounds 1 and 3

1. These Grounds merely argue with the factual findings of the Tribunal and do not constitute a meaningful assertion of jurisdictional error. Accordingly, they fail to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 4

1. This Ground merely comprises an expression of hope and also fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 2

1. This Ground argues with the findings of the Tribunal and seeks to engage a merits review in this Court which is not available. Insofar as this Ground attacks the credit findings of the Tribunal as “unfair and unreasonable”, it also fails to establish jurisdictional error. It is, of course, the case that credibility findings of the Tribunal are not beyond judicial scrutiny, but in this case I do not consider that the findings of the Tribunal in relation to the Applicant’s credit, or otherwise, could be said to be unreasonable or without a logical, rational or probative basis or founded on objectively minor matters. Nor could they be regarded as “blanket, reflex or exaggerated adverse credit findings”: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11].

2. Accordingly, Ground 2 also fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Conclusion

1. None of the Grounds relied upon by the Applicant establish that the decision of the Tribunal is affected by jurisdictional error, and accordingly the Application filed in this Court is to be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:  23 August 2018