BRZ15 v Minister for Immigration

[2016] FCCA 1429

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRZ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1429

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – bias – whether the Tribunal misapplied the relevant law – whether the applicant had a genuine hearing – no jurisdictional error identified – application dismissed.

Legislation:

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

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

Applicant: BRZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2311 of 2015

Judgment of: Judge Street

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. The name of the second respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2311 of 2015

BRZ15

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 27 July 2015 affirming a decision of the delegate not to grant a Protection (Class XA) visa. The applicant was found to be a citizen of China, and his claims were assessed against that country. The applicant claimed to fear harm on the basis of his Christian faith, and claimed to have been raised by a Christian family, and to have engaged in other gatherings of Christians, and to have spread Jesus’ words and vision on the street.

2. The applicant alleges he became a member of an underground church known as the Disciples’ Flock (Congregation of Disciples), or religious denomination of Godly Blessed. The applicant contends the church was classified as a cult by the government, and was suppressed and eventually raided by the police in November 2005.  The applicant alleges he was placed in detention, where he was held as a die-hard, tortured, and given little food, and forced to work.  The applicant alleges he was released from detention, but continued to preach the gospel, and was warned by friends a few weeks later that the police were looking for him.

3. It is in those circumstances the applicant alleges he went into hiding before coming to Australia.  The applicant arrived in Australia on a fraudulent passport on 5 December 2005. The applicant made his first application for protection on 13 December 2005, which was refused on 16 February 2006.

4. The applicant lodged an application for a review on 13 March 2006. The Tribunal affirmed the decision on 11 May 2006.  The applicant appealed to the then Federal Magistrates Court on 5 June 2006, which was dismissed on 18 October 2006.  The applicant then lodged an application for appeal to the Full Court of the Federal Court of Australia on 8 November 2006, and that appeal was dismissed on 7 March 2007.  The applicant then remained unlawfully in Australia from 5 April 2007 to 1 June 2008.

5. An application for ministerial intervention was received on 19 May 2008, which was determined to be the subject of no consideration on 28 June 2009.  The applicant then remained an unlawful non-citizen from 4 August 2009 until 20 January 2014.  On 24 December 2013, the applicant lodged a further application for protection on the grounds of complementary protection in accordance with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. The delegate found that the applicant was not a witness of truth, and had provided false and misleading information to the Department. It was in those circumstances that the delegate rejected the applicant’s second application for protection on complementary protection grounds on 13 June 2014.

6. The applicant applied for review on 18 July 2014.  By letter dated 4 June 2015, the applicant was invited to attend a hearing on 23 July 2015.  The applicant attended that hearing on 23 July 2015 to give evidence and present arguments, and was assisted by an interpreter.  The Tribunal found that it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there is a real risk he will suffer significant harm.

7. The Tribunal made reference to the applicant’s provision of a false identity at the time he entered Australia.  The Tribunal identified the applicant’s claims and evidence, and found it was not satisfied that the applicant had given a truthful account of his experiences in China, or that his evidence could be relied upon.  The Tribunal was not satisfied the applicant was a Christian;  was not satisfied that the applicant had been persecuted in China for joining the family church, or underground local church known as the Disciples’ Flock (Church Congregation of Disciples), the Godly Blessed, or the Apostles’ Church, which was considered to be an evil cult suppressed by the government in China.

8. The Tribunal was not satisfied that the applicant would practise Christianity upon his return to China. The Tribunal was not satisfied that at the time the applicant left China he was of adverse interest to the authorities. The Tribunal was not satisfied that the applicant is now of adverse interest to the authorities by reason of his religious beliefs, or for any other reason. In those circumstances the Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk he would suffer significant harm as defined in s.36(2A) of the Migration Act 1958 because of his religion or for any other reason. It was for those reasons that the Tribunal found that the applicant did not satisfy the criteria under s.36(2)(aa) of the Migration Act 1958 and affirmed the decision of the delegate. 

9. On 1 October 2015, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit, and submissions.  On 8 April 2016 an order was made by this Court fixing the matter for hearing and providing the applicant with a further opportunity to file an amended application, affidavit, evidence, and submissions. No such documents were filed in response to either order. 

10. The grounds of the application are as follows:

    Final Orders Sought by the Applicant

    1. I disagree with immigration and AAT's decision. They did not consider that I will be in danger if I return

    2. AAT did not consider that I will be persecuted and in big trouble if I return home.

    3. AAT member questioned me at hearing made me feel very up sad. They did not trusted me and I do not think they had the right attitude to my application . AAT should grant my application.

    Grounds of application (see Instructions for completion)

    1. I am a Chinese citizen and Christian who has been persecuted by Chinese government . I had been arrested by the corrupted government and police

    2. I can not go back to China since I am very scared to be sentenced.

    3. The Chinese government still looks for me if I return. My friends told me not to go back since the police are still looking for me

11. At the commencement of the hearing the Court explained to the applicant that the matter was listed for final hearing. The Court explained that the final hearing was to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power, or denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was deciding whether the Tribunal’s decision was made lawfully, and whether the Tribunal’s decision was made fairly.

12. The Court explained that, if satisfied the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the applicant’s application would be dismissed.  The Court explained that it proposed to identify the evidence, and then hear submissions from the applicant, and then hear submissions from the solicitor for the first respondent, and then submissions in reply from the applicant. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

13. In relation to para.1 of the final orders sought, I accept the first respondent’s submission that this is in substance an impermissible cavilling with the adverse findings made by the Tribunal.  It is apparent that the Tribunal considered the applicant’s claims and evidence, and made adverse credit findings that were open on the material before the Tribunal that cannot be said to lack an evident and intelligible justification. Nothing in para.1, under Final Orders identifies any arguable jurisdictional error. 

14. In relation to para.2, under The Orders Sought, the applicant again is cavilling with the decision of the Tribunal and this Court does not have jurisdiction to make fresh findings of fact in relation to the applicant’s claims.  The adverse findings by the Tribunal were, for reasons already given, open and para.2 fails to identify any jurisdictional error.

15. In relation to para.3, there is no material before the Court to support the allegation that the Tribunal approached the hearing with an inappropriate attitude.  Any allegation of bias must be clearly alleged and properly proven.  No allegation of bias is proven.  Moreover the questioning of the applicant at the hearing was orthodox conduct by the Tribunal for testing and determining the applicant’s claims and evidence.

16. Questioning the applicant at the hearing is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair, independent and impartial mind to the determination of the matter on its merits.  Nothing in para.3 of the Final Orders Sought identifies any jurisdictional error.

17. In relation to grounds 1 to 3 of the grounds set out under the application, I accept the first respondent’s submission that they are in substance a repetition of the applicant’s claims.  Nothing in those paras.1 to 3 under Grounds of Application, identifies any jurisdictional error.

18. Nothing was said by the applicant from the bar table in support of the application.  The application fails to establish any jurisdictional error.  I am satisfied that the applicant had a genuine hearing and on the material before the Court, there is nothing to suggest that the Tribunal did not comply with its statutory powers and on the material before the Court, there is nothing to support the proposition that the applicant was denied procedural fairness. 

19. The application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016