BPU16 v Minister for Immigration

[2016] FCCA 2824

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPU16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2824

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether the Tribunal complied with its statutory obligations – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 476

Cases cited:

Minister for Immigration and Border Protection v SZVCH (2016) FCAFC 127

Applicant: BPU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1674 of 2016

Judgment of: Judge Street

Hearing date: 2 November 2016

Date of Last Submission: 2 November 2016

Delivered at: Sydney

Delivered on: 2 November 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr D McLaren

Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1674 of 2016

BPU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 14 June 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. The applicant arrived in Australia on 16 January 2007 using his valid Chinese passport, endorsed with a subclass 676 tourist visa. It was not until 29 January 2007 that the applicant applied for protection.

3. The applicant originally claimed to fear protection because where he had an eel farm in August 2006 was hit by a typhoon. Some of the applicant’s associates were killed and his business was destroyed. The applicant alleges that he sought compensation in relation to that business. The applicant says that the compensation was not paid and that led him to lose faith in the Chinese government. The applicant alleges that funds that were due to him were pocketed by corrupt officials. 

4. The applicant alleges that he got a call from a radio reporter who organised a large sit-in protest in relation to the area where the applicant had his eel farm. The applicant alleges he was arrested on 22 November 2006 and that the applicant decided to continue to advance the planned sit-in.  The applicant alleges that the protest was held on 25 November 2006 and that the police broke up the protest and that the applicant was arrested and detained until 15 December 2006.

5. The applicant alleges a friend raised a bribe to pay the police to free him and the applicant alleges that the Public Security Bureau was after him. The applicant alleges that the police had gone to his house with an arrest warrant for several people, including the applicant.

6. On 14 February 2007 the delegate found that the applicant did not have a genuine fear of harm and that there was not a real chance of persecution occurring.  The delegate found that the applicant’s fear of persecution as to part of the Refugees Convention was not well founded. That decision under the Refugees Convention was affirmed by a Tribunal on 31 May 2007.

7. On 23 April 2014 the applicant made a further application for protection relevantly, on the grounds of complementary protection which had not been assessed in relation to the applicant’s first application for a protection visa. 

The Delegate

1. On 14 January 2015 the delegate refused to grant the applicant a Protection (Class XA) visa. The delegate found the applicant’s account of his claims was not plausible or convincing.  The delegate found the applicant was not a credible witness. The delegate was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will be subjected to significant harm.

2. The delegate found that the applicant did not meet the criteria under s.36(2)(aa) of the Act and refused the grant of a protection visa.

The Tribunal

1. On 2 February 2015 the applicant applied for review. By letter dated 18 May 2016, the applicant was invited to attend a hearing on 10 June 2016. The applicant attended on that date to give evidence and present arguments.

Application of s.48A of the Act

1. The Tribunal’s decision delivered on 14 June 2016 correctly identified the bar imposed under s.48A of the Act applicable at that time and that the application for protection could only be assessed on the grounds of complementary protection. The Tribunal correctly identified the relevant law in that regard and set out the applicant’s claims and evidence.

Consideration of claims and evidence

1. The Tribunal identified logical reasons from the material as to why the Tribunal doubted the truth of the claims that the applicant had advanced. The Tribunal found the applicant was an unsatisfactory witness and made adverse credibility findings in relation to the applicant. The Tribunal found that the fact that the applicant was able to leave legally and openly was a strong indication that the applicant was not regarded by the Public Security Bureau or other authorities as a person of adverse interest.

2. The Tribunal was not satisfied that the applicant ever protested against corrupt officials in China or that for any other reason, the applicant was of adverse interest to the authorities. The Tribunal was not satisfied the applicant was ever arrested, detained, beaten or in any way harmed by police whilst in China or that they came to his house searching for him after his departure. The Tribunal was not satisfied that the applicant owed money to loan sharks or bereaved families of workers killed in the 2006 typhoon or that such people had come to his house while he has been in Australia. The Tribunal was not satisfied that there was any reason to believe that the applicant is at risk of harm from authorities, loan sharks or bereaved family members should the applicant return to China. 

3. The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk the applicant would suffer significant harm in terms of s.36(2)(aa) of the Act. The Tribunal was not satisfied that there is a real risk the applicant would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture or he would be subjected to cruel or inhumane treatment or punishment or degrading treatment or punishment.

4. The Tribunal found that the applicant did not satisfy the criterion in s.36(2) of the Act and affirmed the decision of the delegate.

Proceedings before this Court

1. The grounds of the application are as follows:-

   1. The Tribunal failed to make to its own findings, namely, the Tribunal has been relying the previous different constituted Tribunal findings.

   2. The Tribunal failed to apply the Refugee Convention Criterion to my claims.

2. 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 to the applicant that the relevant legal error had to be either an excessive statutory power or a denial of procedural fairness to the applicant. 

3. The Court explained in summary, that this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained that, if satisfied the Tribunal’s decision was affected by relevant legal error, the decision of the Tribunal would be set aside and the matter sent back for further hearing. The Court explained that if not satisfied that the Tribunal’s decision was affected by relevant legal error, the applicant’s application would be dismissed.

4. The Court explained that it would have identified the evidence, then hear submissions from 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 he understood the nature of the hearing as explained by the Court. 

5. On 25 August 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and written submissions.  No such documents were filed.

Consideration

1. From the bar table the applicant asserted that the decision was not fair and maintained that he was telling the truth. The applicant also suggested that he was asked too many questions and that he could not remember things. The applicant’s submissions from the bar table were in substance an invitation to this Court to engage in an impermissible merits review. This Court has no power to make fresh findings of fact in relation to the merits of the application. The adverse findings made by the Tribunal in relation to the applicant’s credit were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. In relation to Ground 1 it is incorrect to suggest that the Tribunal failed to make its own findings and incorrect to suggest that the Tribunal in its reasons relied upon what had been said by an earlier Tribunal.  The Tribunal’s reasons reflect an orthodox approach to the applicant’s claims and evidence in relation to complementary protection. I am satisfied that the applicant had a real and meaningful hearing. The adverse findings were open on the material before the Tribunal.

2. On the material before the Court, I am satisfied that the Tribunal complied with its statutory obligations in the conduct of the review and I am not persuaded that the Tribunal failed to comply with the obligation of procedural fairness in the conduct of that review. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to Ground 2, the Tribunal was correct not to consider the issue of whether the applicant was a refugee under the Refugees Convention as it had no jurisdiction to do so. That this is the correct approach is also supported by the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127. No jurisdictional error was made out by Ground 2.

Conclusion

1. The application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 December 2016