Bpe15 v Minister for Immigration

[2016] FCCA 1581

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPE15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1581

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – Chinese citizen – whether failure to consider whether owed protection obligations – whether denial of procedural fairness.

Legislation:

Migration Act 1958 (Cth), Part 7, Division 4, ss.36(2)(a) and (aa), 91R, 422B, 425, 474, 476

Cases cited:
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63;(2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZQWV v Minister for Immigration & Citizenship [2012] FCA 817

Applicant: BPE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 360 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 27 June 2016

Date of Last Submission: 27 June 2016

Delivered at: Perth

Delivered on: 28 June 2016

REPRESENTATION

For the Applicant: In person (with an interpreter)

Counsel for the First Respondent: Mr D Carroll

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS (made on 27 June 2016)

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs in the sum of $5000 by 27 July 2016.

3. Reasons for Judgment be published from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 360 of 2015

BPE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 27 June 2016 the Court made the following orders at hearing:

   1.The application be dismissed.

   2.The applicant pay the first respondent’s costs in the sum of $5000 by 27 July 2016.

   3.Reasons for Judgment be published from Chambers at a later date.

   The Reasons for Judgment in relation to those orders appear below.

2. The applicant applies for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision is at Court Book (“CB”) 123-132. The Tribunal affirmed a decision of a delegate of the first respondent (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration & Border Protection (“Minister”), to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.

Background

1. The background to the application is as follows:

   a)the applicant is a citizen of the People's Republic of China (“PRC”), who was born in Fujian province, on 10 December 1992: CB 12, CB 23;

   b)the applicant first arrived in Australia on 29 May 2011 holding a student visa: CB 19;

   c)on 21 May 2012 the applicant’s student visa was cancelled: CB 58;

   d)on 18 November 2014 the applicant was taken into immigration detention: CB 58;

   e)on 24 November 2014 the applicant lodged a protection visa application: CB 1-37;

   f)the Delegate’s Decision on 31 March 2015 was to not grant the applicant a protection visa. The Delegate was not satisfied that Australia had protection obligations in respect of the applicant under s.36(2)(a) or s.36(2)(aa) of the Migration Act: CB 57-68;

   g)on 8 April 2015 the applicant sought review of the Delegate’s Decision in the Tribunal: CB 75-76;

   h)by letter dated 11 May 2015 the Tribunal invited the applicant to appear before it to give evidence and present arguments: CB 102-105;

   i)on 10 June 2015 the applicant attended a hearing before the Tribunal (“Tribunal Hearing”) by video link, assisted by a Mandarin interpreter: CB 116-119; and

   j)on 19 June 2015 the Tribunal affirmed the Delegate’s Decision, and by letter dated 22 June 2015 the Tribunal informed the applicant of the Tribunal Decision: CB 121-122.

Tribunal Decision

1. The Tribunal:

   a)summarised the applicant's claims that he did not want to return to the PRC due to:

   i)his fear of harm from criminal money lenders due to his parents being unable to pay off a debt;

   ii)his fear of persecution on the basis of his Christianity and his membership of the Local Church; and

   iii)the difficulties he would face finding a job in the PRC given that he had not been able to gain a qualification in Australia: CB 124 at [1];

   b)set out the applicant's migration history and the background to his application for review, including the Delegate's finding that the applicant was not a credible witness: CB 124 at [2]-[5]; and

   c)set out the applicant's claims and evidence including that:

   i)the applicant learned in mid-2011 that in May 2011 his family’s business had failed, and that his parents were unable to repay the money lenders the loan they had taken out to send him abroad to study and to invest in the business: CB 125 at [10];

   ii)the applicants parents fled Fujian and went into hiding, as the money lenders were linked with criminal gangs and might take their home, and after 6 months they returned to negotiate with the money lenders but were unable to repay the loan by the end of 2014: CB 125 at [11];

   iii)the applicant’s parents were threatened daily by the money lenders who had destroyed their furniture, assaulted them on two occasions, and threatened to kidnap and ransom the applicant: CB 125 at [12];

   iv)after a second assault the applicant’s father was hospitalised for two weeks, although the applicant did not learn about the assaults until he was detained as his family did not want to worry him: CB 125 at [13];

   v)the applicant fears he will be harmed or kidnapped by the money lenders, and did not know he could seek protection until after he was taken into immigration  detention: CB 125-126 at [14]-[15];

   vi)the applicant is a Christian and a member of the Local Church, and neither he nor his family experienced any harassment from the PRC authorities prior to his leaving for Australia in 2011: CB 126 at [19]-[20];

   vii)the applicant began attending a house church in Australia from the end of 2012: CB 127 at [22];

   viii)at the end of 2013 a fellow student and Local Church member returned to China and was detained and refused bail for being a Local Church member and preaching Christianity: CB 127 at [26];

   ix)after the applicant was detained in November 2014 his sister told him that his parents had been detained on Easter Day in 2014 after they invited preachers from the Taiwanese congregation of the Local Church to preach in the PRC, and detained again on China's National Day in 2014 for preaching Christianity in Jiangxi province: CB 127-128 at [27]-[29]; and

   x)the applicant fears he will be harmed by the Chinese government on account of his Christianity: CB 128 at [30];

   d)considered that the applicant's claims regarding threats of harm from money lenders were not plausible, and that his evidence was vague, general and lacking in detail, noted inconsistencies in the applicant's evidence to the Delegate and the Tribunal, and found that the applicant's delay in lodging his protection visa application undermined his claims, and on these bases did not accept the applicant's claims that his parents owe a debt, that they had been threatened, assaulted or had their property destroyed, or that the applicant would be harmed by criminal money lenders: CB 126 at [16]-[18];

   e)accepted that the applicant may have participated in church meetings in Australia, and gave him the benefit of the doubt in finding that he was a follower of the Local Church: CB 127 at [23]-[24];

   f)noted that the applicant had not claimed to be involved in proselytising, and did not accept that he would do so if he returned to the PRC: CB 127 at [24];

   g)did not accept the applicant's claim that a fellow student and Local Church member had been detained on return to the PRC in late 2013, and found that this claim had been manufactured to support his claim for protection: CB 127 at [26];

   h)considered that the applicant's delay in applying for protection undermined this claim, and, having regard to the fact that the applicant had been living in the community since his arrival in Australia in 2011, and had been mixing with PRC Nationals from the Local Church for 18 months from the end of 2012, did not accept that the applicant was not aware that he could lodge a protection claim until he was detained: CB 127 at [26];

   i)found the applicant's evidence regarding the arrest and detention of his parents to be superficial and lacking detail, and noted that his evidence in this respect changed during the hearing, and on that basis, did not accept that the applicant's parents were arrested and detained as claimed: CB 128 at [31];

   j)referred to independent country information indicating that the authorities in Fujian province tolerated and had a liberal attitude towards the Local Church, and on that basis,  and in light of the applicant's past experiences, found that there was no real chance that the applicant would be seriously harmed in the reasonably foreseeable future due to being a follower of the Local Church if he returned to the PRC: CB 126 and 128 at [20], [33]-[34];

   k)found that the applicant's claimed difficulty regarding finding a job did not amount to serious harm as defined in s.91R(2) of the Migration Act, and did not constitute significant harm as required to engage Australia's complementary protection obligations: CB 128 at [35]; and

   l)ultimately, was not satisfied that the applicant had a well-founded fear of persecution, or that grounds for complementary protection were made out, and found that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act: CB 128-129 at [36]-[39].

Judicial Review Application

1. On 20 July 2015 the applicant lodged the Judicial Review Application with the Court.

2. The Judicial Review Application contained the following grounds of review (copied without amendment):

   1. The Tribunal erred by finding pursuant to s 36(2)(aa) of the Migration Act that the Tribunal failed to acknowledge that I am not a person whom the Minister owns protection obligation.

   2. The Tribunal denial me Procedural Fairness, by fail to consider relevant material

   3. The Tribunal denial me Procedural Fairness., by fail to consider relevant material

3. On 14 October 2015 a Registrar of the Court ordered, among other things, that the applicant file and serve:

   a)on or before 9 December 2015 any amended application giving particulars of the grounds of application, and any further affidavits upon which he intends to rely at the hearing of the matter; and

   b)an outline of submissions not less than 42 days before the hearing.

4. As at the date of the hearing, the applicant has not filed any amended application, further affidavits, or outline of submissions.

Submissions

1. The applicant provided no written submissions to the Court.

2. At hearing, the applicant made no oral submissions in support of the Judicial Review Application, and in reply to the Minister’s submissions did no more than ask the Court for a “just decision”.

3. At hearing, the Minister relied upon and briefly outlined the written submissions he had filed to the effect that the Tribunal had considered the applicant’s claims and had heard the applicant as to those claims, and that no jurisdictional error in the Tribunal Decision had been established.

Consideration

Requirement for jurisdictional error

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

Ground 1 – alleged failure to consider whether owed protection obligations

1. Ground 1 appears to allege, without particulars, that the Tribunal erred in relation to its finding that the applicant did not meet the criterion in s.36(2)(aa) of the Migration Act, or by failing to acknowledge that the applicant was a person to whom Australia owes protection obligations.

2. Ground 1 does not identify jurisdictional error in the Tribunal's decision, and as such invites the Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).

3. The Tribunal was under no obligation to uncritically accept all or any allegations made by the applicant: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at [23] per Gilmour J. Findings of fact made, including any assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s inability to be satisfied or otherwise of the applicant’s claims, were matters for the Tribunal to determine on the evidence before the Tribunal: Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.

4. The Tribunal made findings dismissing each of the bases on which the applicant claimed to be owed protection obligations, and set out its reasons for those findings which were open on the material before it. No error, let alone jurisdictional error, regarding these matters is evident from the reasoning in the Tribunal Decision.

Grounds 2 and 3 – alleged denial of procedural fairness

1. Grounds 2 and 3 repeat an allegation, without particulars, that the Tribunal denied the applicant procedural fairness and failed to consider relevant material.

2. As this was a case to which s.422B of the Migration Act applied, the applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal Hearing: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63;(2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) which invitation was accepted by the applicant: CB 159-166, 247 at [20]. The applicant attended the Tribunal Hearing and gave evidence in support of his claims, assisted by an interpreter and with his migration agent in attendance: CB 124 at [5]. The Tribunal Decision shows that the Tribunal put to the applicant matters in respect of which the Tribunal might make an adverse finding, or which were in some way in contention or dispute: see CB 125 at [13] (assault on parents); CB 126 at [14] (delay in making protection claim) and [19] (parents’ participation in Local Church).

3. The allegation that the Tribunal failed to consider relevant material is similarly without foundation. The Tribunal Decision referred to the applicant's written statement of protection claims provided to the Department with the Protection Visa application: CB 16-20, CB 124 at [7], and recorded the applicant's further claims and evidence at the Tribunal Hearing including the applicant's responses to the Tribunal's questions. The Tribunal also referred to relevant country information: CB 126 at [20] and CB 128 at [33], and relevant legal principles: CB 130-132 at [41]-[55].

4. The Tribunal’s obligations under s.425(1) of the Migration Act were therefore complied with by the Tribunal giving the applicant the opportunity to be heard: SZBEL. In all of the circumstances, the Court finds that there was no failure by the Tribunal to afford the applicant the required procedural fairness under the Migration Act, and grounds 2 and 3 are not made out.

Conclusion and orders

1. The applicant has failed to establish jurisdictional error in the Tribunal Decision. It follows that the application must be dismissed, and that the Minister is entitled to costs.

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

Date: 28 June 2016