BOD15 v Minister for Immigration

[2015] FCCA 3107

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOD15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3107

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Show Cause hearing – whether Tribunal correct in finding no real risk of significant harm – adverse credit findings – no arguable jurisdictional error identified – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001, r.44.12

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: BOD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2117 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 First Respondent: Ms N Johnson
Mills Oakley

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 sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2117 of 2015

BOD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Tribunal made on 7 July 2015, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant arrived in Australia as a holder of a tourist visa on 27 February 2010, and lodged an application for protection on 26 March 2010 that was refused on 2 August 2010. That refusal was affirmed by the Tribunal on 16 September 2011. The applicant’s bridging visa ceased on 14 October 2011 and he became an unlawful person in Australia.

2. On 28 January 2014 the applicant lodged a second application for protection, consistent with the principles identified in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. On 25 July 2014 the delegate refused the second application for protection on complementary protection grounds and did not accept the applicant’s credit. By letter dated 20 April 2015 the applicant was invited to appear before the Tribunal on 24 June 2015 to give evidence and present arguments. It is clear that the applicant appeared on that date to give evidence and to present arguments.

3. By an order of the Court made by a Registrar on 3 September 2015, the matter was fixed for hearing today under r.44.12 of the Federal Circuit Court Rules 2001 for a show cause hearing, and the applicant was given the opportunity to file an amended application, affidavit and submissions.  No such documents were filed. 

4. The grounds of the application are as follows:

   1. The Tribunal erred in arriving at a conclusion without supported evidence. In particular, the Tribunal has doubts about authenticity of the document and the accuracy of the information provided by referencing to country information about the fraud documents prevalence in China.

   2. The Tribunal failed to disclose country information. Particularly, the Tribunal in paragraph 26 failed to disclose the country information referred.

   3. The Tribunal failed to take into account relevant consideration. The Tribunal particularly at paragraph 32 has selectively picked up the adverse information from the first protection visa application and the Tribunal is not persuaded he is a genuine Christian because the applicant did not focus on his Christianity claims in the second application.

5. In summary, in relation to the applicant’s claim for complementary protection, the applicant maintained that he left China in order to escape harm and persecution, and that he feared for his life and safety and had been intimidated and threatened by illegal money lenders, as well as being mistreated by the authorities.  The applicant claimed that if he were returned, he would be mistreated by the money lenders, their associates, gangsters and authorities.

6. The applicant identified that he had a seafood business and that corrupt officials demanded kickbacks, and that he had no choice but to offer kickbacks and that officials pocketed the money. The applicant identified that he took the matter to the local court that delivered a favourable outcome for the applicant, but that the officials refused to make the payments and asked the police to intimidate and threaten the applicant. The applicant further identified that other departments came to pick on the applicant’s business and he had to close his business and was unable to repay his lenders. 

7. The applicant maintained that money lenders and their thugs threatened to harm him because he did not repay the loan, and that officials warned him not to make any trouble or do anything against the government.  The applicant maintains that if he were to return to China, he would pursue his right to claim the unpaid money by the government officials, and he would face the money lenders, who would harm him because he cannot repay the debts. 

8. The applicant maintains that the illegal money lenders have close associations with the authorities who would harm him, and that he would go against the corrupt officials who extorted him in the business dealings with the government, and that the officials would do everything, if necessary, to keep him silent about their corruption and extortion, and that the authorities would not protect him, because they have denied him the right of getting back his money.

9. The Tribunal made adverse credit findings in relation to the applicant, relevantly in relation to his claims in respect of owing money, the Tribunal found:

   27. The Tribunal has carefully considered the evidence and the applicant’s explanation which was essentially claimed memory difficulties which for the stated reasons, the Tribunal has not accepted. The Tribunal is satisfied that overall and as discussed above, the applicant’s evidence in relation to his central claims about the debt was incoherent, confused, vague, lacked in significant details, was inconsistent with his earlier claims; the applicant was not able to provide a coherent account of his claimed debt; it refers to debt Tianjin Hancheng Hotel Co. Ltd which is not what the applicant said in the course of the hearing. The applicant’s claims in the second application are substantially different from those made in the first application. His explanation that the agent had advised that financial issues do not fall within ‘refugee’ criteria whilst plausible, it still does not explain the significant differences and consequently, the Tribunal is not persuaded.

   28. The applicant has provided a document in support which does not on its face, corroborate his claims. Given those concerns, in consideration of the evidence as a whole, and on the basis of the available information, the Tribunal is not satisfied that the applicant had operated a seafood business, that he had supplied seafood to anyone or any organisation or any hotel, or that he was owed money for the supply of seafood by anyone, or that he had to pay commission or bribed to anyone in order to be able to run the seafood business, or that anyone had demanded money from him for their business, or that he owes money to anyone in relation to the business, or that anyone owes him money for any reason, or that he has been intimidated or threatened by any money lenders, or that the money lenders are associated with the gangsters or the authorities, or that he has been mistreated by the Chinese authorities, or that any official had pocketed money from the applicant, or that the document titled People’s Court of Dongli District, Tianjin City civil judgements contains a truthful and or accurate information, or that the court delivered a favourable outcome, or that the officials refused to make payment, or that he was unable to pay any loan, or that if he were to return to China, he would pursue his rightful payment, or that the money lenders would harm him because he cannot repay the debt, or that he would go after corrupt officials who extorted money from him, or in fact anyone had extorted money from him, or that the officials will do anything to keep him silent about any corruption, or that the authorities would not protect him, or that they have denied him payment, or that he fears for his life and safety, or that he would mistreated by the moneylenders or their associate gangsters.

   29. In essence and for the stated reasons the Tribunal is not satisfied that the applicant had borrowed or owes money to anyone, or that he has any fear on this basis.

10. In relation to the applicant’s claims concerning Christianity, the Tribunal made adverse findings in para.35 as follows:

    35. The Tribunal is of the view that the applicant’s evidence in relation to his Christian related activities in China was general, vague, lacked in significant details. His explanation about memory problems is neither persuasive nor convincing. The applicant has provided a letter of support from Father Paul Magee which the Tribunal has carefully considered. Given the credibility concerns, in consideration of the evidence as a whole, the Tribunal has decided not to give the letter weight. For those reasons, the Tribunal is not satisfied that the applicant was ever involved in underground Christian related activities in China, or that he is a genuine Catholic, or that he was ever involved in any underground church meetings, or that he was ever arrested, detained, or had to pay any money for his release, or ill-treated for any reason, or that they were raided during any meetings by the PSB, or that the PSB found a Hong Kong Bible, or that the PSB suspected that they had found illegal religious meetings, or that he was informed that his meeting group in Tianjin had been destroyed, or that his wife has ever been questioned by the PRC authorities. Whilst the Tribunal accepts as plausible that the applicant has attended church in Flemington, in consideration of the evidence as a whole, the Tribunal is not satisfied that his attendance is genuine, or that it supports his claims of being a practitioner of the Catholic faith, or that he had to pay bribery to be able to depart China. For those reasons, the Tribunal is satisfied that if the applicant were to return to China, because he is not a genuine practitioner of the Catholic faith, there is not a real risk of significant harm occurring to him on this basis or any other basis, including but not limited to any of the claimed debts all bribery.

11. The Tribunal noted that the applicant had departed China lawfully, which the Tribunal identified as raising serious doubt about the applicant’s claims and supported the Tribunal’s conclusion that the applicant was not of any adverse interest to the Chinese authorities.  The Tribunal found that if the applicant was returned to China, he would not practice the Catholic faith, but found that that was not out of fear, but because the applicant was not a genuine practitioner of the faith.  The Tribunal also found that any alleged Christian related activities by the applicant in Australia would not have come to the attention of the Chinese authorities.  It was in those circumstances that the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm if returned to China.

12. The applicant maintained that everything he told the Tribunal was true.  It was a matter for the Tribunal to determine the applicant’s credit.  The adverse findings by the Tribunal on the credit of the applicant cannot be said to lack an evident and intelligible justification.  The applicant suggested from the bar table that there had been problems with the interpretation.  In response to an inquiry as to whether this was an issue raised before the Tribunal, the applicant responded that he could not understand English. 

13. There was no evidence to support any assertion that the Tribunal was informed of any difficulty with the interpretation by the applicant, and no evidence has been put on to establish any difficulty with the interpretation.  I do not accept that there is any arguable jurisdictional error by the reason of anything said by the applicant from the bar table in relation to alleged issues concerning interpretation problems. 

14. The applicant also identified that there had been changes that had taken place in China and that he still owed money to the underground.  It is clear that the Tribunal took into account and made adverse findings upon the applicant’s claims concerning his alleged debts.  Those findings cannot be said to lack an evident, intelligible justification. 

15. The applicant also said from the bar table that the Tribunal decision was based on feelings of the Tribunal Member.  The applicant explained that that was based on the adverse findings by the Tribunal.  An allegation of bias must be clearly made and properly proved.  Bias has not been proved.  Adverse findings by the Tribunal are not a basis upon which bias can be made out. 

16. The making of 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 impartial and independent mind to the determination of the matter on its merits.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error. 

17. In relation to ground 1, it is clear that the findings of the Tribunal were based upon the evidence identified in the Tribunal’s reasons, and it was a matter for the Tribunal to make findings of credit in relation to the applicant and the authenticity of material advanced by the applicant.  Ground 1 fails to identify any arguable jurisdictional error. 

18. In relation to ground 2, country information is not a matter that gives rise to any obligation under s.424A(1), and I accept the first respondent’s submission that it is clear from para.25 that the Tribunal raised the country information with the applicant in compliance with s.425. Ground 2 fails to disclose any arguable jurisdictional error.

19. In relation to ground 3, there are no relevant considerations identified in respect of which it is alleged the Tribunal failed to have regard, and to the extent that there is reference to the Tribunal selectively picking adverse information, this is an allegation of bias that must be clearly made and properly proved.  It was a matter for the Tribunal to determine what weight to give country information and to make findings in relation to the applicant’s claims. 

20. The adverse finding by the Tribunal in relation to the applicant’s alleged Christianity was a finding of credit that cannot be said to lack an evident and intelligible justification.  The adverse findings in relation to country information and the applicant’s Christianity are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and an impartial mind to the determination of the matter on its merits. 

21. Ground 3 fails to disclose any arguable jurisdictional error. I am satisfied that the application fails to identify an arguable case. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 November 2015