BQX15 v Minister for Immigration

[2015] FCCA 2866

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2866

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the applicant had a sufficiently arguable case – whether the Tribunal’s reasons were supported by evidence – whether the Tribunal took into account an irrelevant consideration – no arguable jurisdictional error – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 424, 476

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

Applicant: BQX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2271 of 2015

Judgment of: Judge Street

Hearing date: 23 October 2015

Date of Last Submission: 23 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr L Gell
Clayton Utz

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2271 of 2015

BQX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) in respect of a decision of the Tribunal made on 23 July 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant applied for a protection visa on 24 September 2013. On 7 January 2011 the Department delegate refused the protection visa. On 13 November 2011 the Tribunal affirmed the decision. Consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, on 24 September 2013 the applicant lodged another protection visa application on the grounds of complementary protection under s.36(2)(aa). On 23 May 2014 the delegate refused to grant the applicant the protection visa and the applicant applied for a review before the Tribunal on 14 June 2014.

2. Consistent with the statutory regime, on 28 April 2015 the applicant was invited to attend a hearing on 22 July 2015.  The applicant appeared before the Tribunal on that date to give evidence and present arguments and was assisted by an interpreter and represented by his registered migration agent.  Pursuant to orders made on 24 September 2015, the matter was listed today for a show cause hearing, and the applicant was given an opportunity to file an amended application, affidavit evidence and put on submissions.  No such documents were filed.  The grounds of the application are as follows:

   1. The Tribunal erred in arrive at a conclusion without supported evidence.

   Particulars:

   a) At paragraph 11, the Tribunal concluded that the applicant should have accessed the community of knowledge about protection visa simply because expatriates from China have historically been one of the largest Protection visa cohorts in Australia.

   b) At paragraph 27, the Tribunal concluded that the failure of the applicant father's business could not survive the father's passing. The Tribunal has provided no evidence to support its conclusion.

   2. The Tribunal has taken irrelevant consideration into account.

   Particulars:

   At paragraph 34, the Tribunal did not accept the applicant's family has any legitimate right to pursue any compensation because of the applicant's little knowledge about the circumstances in which his father's business failed.

   3. The Tribunal failed to sufficiently disclose the country information.

   Particulars:

   At paragraph 42, the Tribunal put to the applicant the country information indicated that persons may relocate in China, including for work. However, the Tribunal did not provide the country information for the applicant's reference.

3. The applicant arrived in Australia on 13 October 2007 as the holder of a student (Schools Sector) subclass 571 visa that ceased on 29 October 2007.  The applicant was granted a second student (Schools Sector) subclass 571 visa on 29 October 2007 which ceased on 15 March 2010.  The applicant then remained in Australia unlawfully until he was located by a department compliance field team on 6 September 2010.  The applicant claimed to fear harm in China from creditors or gangsters connected with the failure of his father’s business.  He also claimed to fear harm on the basis of his anti-government political opinion.

4. The Tribunal took into account the applicant’s delay in the lodging of an application for protection as a matter relevant as to whether the applicant was generally a reliable witness.  Relevantly, the Tribunal found:

   22. …That is because I am not satisfied he has any political convictions that he would wish to act upon, or that would warrant international protection. For the reasons set out above, the Tribunal is therefore not satisfied the applicant would have a real risk of suffering any significant harm for reason of his actual or imputed political opinion in China.

   …

   26. As put to the applicant at the (second) hearing, (words to the effect) the country information does indicate corruption is wide-spread in China. However, it is also the case that some businesses fail for reasons that do not indicate foul play. When then put to the applicant that it may be plausible his father’s business failed when he passed, and that the business was bought by other business persons, and the money lenders and loan sharks (who the applicant explained all worked in registered loan business in China), were then repaid (as creditors), the applicant had said (words to the effect), that though he did not know much about his father’s business, he did not think what occurred was fair to his family.

   27. At any rate, the Tribunal does accept that corruption occurs in China. However, the applicant’s evidence has not satisfied me the failure of the father’s business, was anything other than a common business failure. Based on the evidence before me, I am not satisfied the father’s business failed other than because the business was driven by the father, and could not survive the father’s passing.

   28. Therefore, the Tribunal accepts the father’s business in China failed after the father passed away. However, and for all the reasons set out herein, I do not accept the applicant has a real risk of suffering any significant harm for this reason in China.

   29. Next, the (first) Department delegate recorded the applicant as claiming he did not wish to return to China due to the emotional trauma he experienced from the death of his father. He believes that what happened to his father has impacted his (the applicant’s) “mental state”. When asked at the (second) Tribunal hearing, whether the applicant had attended any regular medical treatment in Australia, he said that he had not; and neither did he claim to have needed any relevant treatment. The Tribunal accepts the applicant was distressed by what happened to his father. However, based on the evidence before me, I am not satisfied the applicant has a real risk of suffering any significant harm for this reason in China.

   …

   33. The Tribunal understands the use of “black gaols” was principally due to unscrupulous provincial authorities not wishing their ranking to be adversely impacted by the number of adverse petitions arising in their regions. At any rate, should the applicant wish to pursue local government officials in his home area, based on the country information considered, I am satisfied that adequate processes have been put in place to allow this to safely occur. Importantly, and after having discussed this at hearing and based on the country information considered, I am not satisfied the applicant has a real risk of significant harm for this reason in China.

   34. However, and given I am satisfied the applicant knows very little about the circumstances in which his father’s business failed, I do not accept the family has any legitimate right to pursue any compensation. I therefore do not accept there is a real risk the applicant will “fight” for the recovery of his father’s former business in China as claimed. Neither do I accept he has a real risk of suffering any harm for this reason in China.

   …

   41. …That is because, based on the evidence before me, I am not satisfied the applicant would be treated differently to his younger brother, and also given that the applicant had not engaged in any physical confrontations with creditors in China in 2008/2009.

   42. Next, when asked why the mother did not move away from the family home, if she feared significant harm for the reasons claimed, the applicant said his mother had movement restrictions placed on her. When the Tribunal put to the applicant the country information indicated that persons may relocate in China, including for work, the applicant said his mother did not wish to move away from where his father was buried in China.

   43. That said, and based on the country information cited herein, the Tribunal does not accept the mother was unable to move or that she had movement restrictions placed on her. The Tribunal also does not accept she would continue to live in the usual family home, if she had a real risk of suffering significant harm as claimed. This is also another reason that has satisfied the Tribunal the applicant would not have a real risk of suffering significant harm for any of the reasons he claimed in his home region in China. That is because, based on the evidence before me, I am not satisfied the applicant would be treated differently to his mother.

   44. Next, regarding the applicant’s claim to fear harm from the money lenders or loan sharks in China, for the reasons stated above, the Tribunal is satisfied the applicant would be treated similarly to his brother and mother. Given he had not engaged in any physical confrontation with creditors (in 2008/2009), and given he had not come to the adverse attention of the police (as did his brother), and given the length of time between those incidents and the failure of the father’s former business, I am not satisfied there is a real risk the applicant would suffer any related harm should he return to his home region in China.

   45. Next, the applicant said he if moved elsewhere in China, he would be traced by the money lenders who believed his family still owed them money. However, at the commencement of the hearing the applicant said he spoke to his mother and brother 5-10 times per year (the last time one month prior to the hearing), and he did not say his brother claimed to have been traced in China. He did say however, that his brother returned to the family home to visit the mother, when on holidays; and nothing apparently occurred at those times. I am not satisfied the brother would do this if he had a real risk of significant harm in the home region. Be that as it may, and for the reasons set out herein, I am not satisfied the applicant would have a real risk of suffering significant harm in his home region in China.

   …

   47. When the gist of this was put to the applicant at hearing, he said the situation was different “below the surface.” He feared not all Chinese live well in China. However, I am not satisfied the applicant would have a real risk of suffering any significant harm due to his level of education. I am satisfied (for instance) that he would be able to obtain work commensurate with his skills in China.

   48. Next, the (first) Tribunal recorded that the applicant “intended” to establish a construction company if he returned to China. The (first) Department delegate recorded the applicant said he feared if he returned to China, he may be alright in the short term, but if he became successful, he would be harmed like his father. This claim might appear partially inconsistent with his fear he would not be able to get a “good job” in China. However, at this time, it is pure speculation on the applicant’s behalf. At any rate, and based on the evidence before me, I am not satisfied the applicant would have a real risk of suffering any significant harm for these reasons in China.

   Other findings:

   49. First, based on the country information and the accepted claims, I am not satisfied the applicant has a real risk of suffering the death penalty in China. Next, based on the country information considered and the accepted claims, I am not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to China. For the same reasons, I do not accept the applicant has a real risk of suffering (for instance) harm that could ‘reasonably be regarded as cruel or inhuman in nature’ (cruel or inhuman treatment or punishment); or that would (ie) be inconsistent with the Articles of the International Covenant on Civil and Political Rights (torture). For the same reasons, neither am I satisfied the applicant has a real risk of suffering arbitrary deprivation of life in China.

   50. Further, even considering the applicant’s accepted claims cumulatively, I am not satisfied he has a real risk of significant harm in China. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real risk of significant harm for any reason in China.

   51. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he will suffer significant harm if returned to China.

5. I accept the first respondent’s submission that ground 1 amounts to an expression of disagreement with the findings of the Tribunal and that ground 1 fails to disclose any arguable jurisdictional error.

6. In relation to ground 1(a), it was clearly open to the Tribunal whether or not to accept the applicant’s explanation as to his delay in lodging a protection visa and the Tribunal was not required the accept the applicant’s contention that he did not know how long the visa would last and did not understand the migration system and did not know what to do.  Given the applicant’s presence in Australia for over three years, it was clearly open to the Tribunal to make the finding referred to in para.11, and ground 1(a) fails to identify any arguable jurisdictional error.

7. In relation to ground 1(b), I accept the first respondent’s submissions that the finding was available on the evidence before the Tribunal and nothing in para.1 of the grounds identifies any arguable jurisdictional error.  In relation to ground 2, it is clear that the applicant raised the issue of the seeking of compensation and it cannot be said that para.34 was the Tribunal taking into account an irrelevant consideration.  In those circumstances, ground 2 fails to identify any arguable jurisdictional error. 

8. In relation to ground 3, the Tribunal was entitled to take into account country information consistent with s.424(3)(a). Ground 3 fails to disclose any arguable jurisdictional error.

9. I am satisfied that this is an appropriate case for the Court to exercise its powers under r.44.12(1)(a) as the application fails to disclose any arguable jurisdictional error. The application fails to identify any arguable case of jurisdictional error. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. The application is dismissed under r.44.12.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 October 2015