BLN16 v Minister for Immigration

[2019] FCCA 3191

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3191

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal’s adverse findings were open on the material before the Tribunal – whether the applicant had a real and meaningful hearing before the Tribunal – invitation to engage in merits review – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: BLN16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1500 of 2016

Judgment of: Judge Street

Hearing date: 6 November 2019

Date of Last Submission: 6 November 2019

Delivered at: Sydney

Delivered on: 6 November 2019

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms J Noakesmith
DLA Piper

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $2,860.00.

DATE OF ORDER: 6 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1500 of 2016

BLN16

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 16 May 2016 affirming a decision of 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. In November 2011, the applicant travelled to Japan and South Korea as a tourist for one week. On 16 April 2014, the applicant applied for a Tourist (Offshore) (TR 676) visa, which was granted on 17 April 2014. The applicant left China on 25 April 2014 and arrived in Australia on 26 April 2014. It was not until 7 May 2014 that the applicant lodged an application for a protection visa.

3. The applicant claimed to fear harm because he complained to officials about the level of compensation offered to him in connection with the forceable expropriation of his land. The applicant claimed that he had been detained for nine days and fears he will be detained if returned to China.

4. On 5 February 2015, a delegate found the applicant failed to meet the criteria for the grant of a protection visa.

5. The applicant applied for review to the Tribunal on 24 February 2015. By letter dated 4 April 2016, the applicant was invited to attend a hearing on 12 May 2016. The applicant appeared on that date to give evidence and present arguments.

6. The Tribunal’s reasons identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims and also the limited documentation provided in support of the same.

7. The Tribunal identified having concerns in relation to the applicant’s credibility. First, on the grounds of the different locations in which the applicant said he was detained, as well as giving inconsistent evidence about the duration of his alleged detention. The Tribunal also explored with the applicant the implausibility of his claims of detention, given that Chinese law allows people to lodge complaints. The applicant then asserted he had been detained on two occasions, which contradicted his written claims. The Tribunal also identified the applicant giving inconsistent evidence which undermined his credibility in relation to the alleged highway and who was constructing it. It was in these circumstances the Tribunal found the applicant was not a witness of truth.

8. The Tribunal found the Chinese authorities did not expropriate land owned by the applicant for the purpose of building a highway in 2013. The Tribunal did not accept the applicant was attempting to lodge petitions in late 2013. The Tribunal found that if the applicant were to return to China in the reasonably foreseeable future, he would have no reason to petition Chinese authorities.

9. The Tribunal found the applicant was not detained or mistreated and found that if he were to return to China in the reasonably foreseeable future, he would not come to the adverse attention of the Chinese authorities for any reason and that there is no chance that he would face persecution for a Convention reason.

10. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and found the applicant did not satisfy the criteria in s 36(2)(a) of the Act.

11. The Tribunal was not satisfied the applicant satisfied the complementary protection criteria in s 36(2)(aa) of the Act and affirmed the decision under the review.

Before this Court

1. These proceedings were commenced on 14 June 2016. On 4 August 2016, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

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

3. From the bar table, the applicant indicated he did not wish to put any submissions. The Court explained to the applicant that if he put no submissions in circumstances where the written submissions of the first respondent had been read to him and where the Court had explained to him that those submissions explained why the Minister submits none of the five grounds in his application make out any relevant error and why the Minister submits the Tribunal’s decision is not unlawful or unfair, the application may be dismissed. The applicant maintained that he did not wish to put any submissions.

The grounds

1. The grounds in the application are as follows.

   1. I am scared to return back to China, because there really exists the persecution targeted towards the petitioners 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 petition experience. Even I could be arrested and detained without any freedom or human rights in China.

   2. As to the one-week visit to Japan using my previous passport, at time I filled in the application form, it did not occur to me as it was a long time ago and my previous passport was not on my hand. I did not intend to hide this. If l do, I wouldn't even mention that visit in the interview and Tribunal hearing. However, the Department and Tribunal doubted my overall credibility due to this which I consider it is unfair and unreasonable.

   3. As to the location of detention centre, I was in panic when the delegate asked about its location. In fact, I did not remember clearly. The days in detention centre were nightmares to me. But since the delegate asked about it, I thought I must come up with something otherwise he would consider my application was not genuine. Hence, I tried my best to recall my memory but I was still not sure about it. I don't think it could be the reason Department and Tribunal suspect my claims.

   4. I was extremely nervous at interview and hearing, sometimes I could not even understand the question. The delegate and officers kept asking me question which made me even nervous. Besides, they did not consider my personal safety and risk if I go back to China.

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

Ground 1

1. Ground 1 is in substance an assertion in relation to the applicant’s claims inviting merits review. The Tribunal made an adverse finding in respect of the applicant’s claims and the Tribunal found that the applicant did not meet the criteria under the Refugees Convention or in relation to complementary protection. Those adverse findings were open to the Tribunal for the reasons given by the Tribunal as summarised above. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant refers to the Tribunal doubting his credibility and alleged that this was unfair and unreasonable. It was a proper matter for the Tribunal to consider the credibility of the applicant’s claims. The Tribunal, on the face of its reasons, clearly raised the issues of concern with the applicant and gave the applicant a real and meaningful opportunity to engage with the same.

2. The Tribunal’s adverse findings as summarised above are logical and rational and cannot be said to lack an evident contention or justification in respect of the adverse credibility findings. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the applicant seeks to explain the credibility concern in relation to where he was detained. This is, in substance, inviting the Court to engage in merits review. To the extent that the applicant takes issue with the taking into account of where he is detained in relation to his claims, the credibility concerns identified by the Tribunal cannot be said to be insignificant or immaterial and were open. It was logical and reasonable for the Tribunal to expect the applicant to know where he was detained if in fact that had occurred. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, to the extent it suggests that the applicant could not understand the question, no question has been identified that the applicant did not understand. There is nothing on the face of the Tribunal’s reasons to suggest that the applicant had any difficulty in engaging with the Tribunal and understanding the questions put and responding to the same. Indeed, the Tribunal’s reasons are inconsistent with such a contention.

2. The Court does not accept that there was any material difficulty in the conduct of the hearing on the face of the evidence before the Court. The Court finds the applicant had a real and meaningful hearing and the Tribunal’s reasons reflect an active intellectual engagement with the applicant’s claims and evidence. The assertion that the Tribunal did not consider the applicant’s safety and risk is inconsistent with the Tribunal’s reasons that correctly identified the relevant law in respect of real chance or real risk of serious harm or significant harm. The Tribunal’s reasons are consistent with the correct application of that law. It was open to the Tribunal to take into account the adverse findings under the Refugees Convention in relation to complementary protection in the circumstance of the present case. No jurisdictional error is made out by ground 4.

Ground 5

1. Ground 5 is, in substance, an invitation to this Court to engage in merits review. This Court cannot decide the matter on the basis of merits, nor can this Court make a decision on compassionate or discretionary grounds. No jurisdictional error is made out by ground 5.

2. I note that the Minister has also drawn attention to the detail in relation to the building of the highway and has correctly identified that it did not enliven any obligation under s 424A of the Act because it falls within s 424A(3)(a) of the Act.

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

I certify that the preceding twenty-four (24) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 November 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:  

Date:  25 November 2019