BTU15 v Minister for Immigration

[2016] FCCA 3098

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3098

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: BTU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2413 of 2015

Judgment of: Judge Manousaridis

Hearing date: 24 November 2016

Delivered at: Sydney

Delivered on: 2 December 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms E Warner-Knight of Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2413 of 2015

BTU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed because the application does not raise an arguable case for the relief it seeks. By that application the applicant seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. Whether the Minister is correct in his submission requires me to identify the applicant’s claims for protection, and the Tribunal’s reasons for not accepting those claims.

Claims for protection

1. The applicant, who is a citizen of the People’s Republic of China (China), arrived in Australia on 28 July 2012 as the holder of a subclass 570 (Independent ELICOS Sector) visa (Student visa). On 10 January 2014 the applicant applied for a Protection visa.

2. In a statement that formed part of the applicant’s application for a Protection visa (Written Statement), the applicant claimed to fear harm arising out of the claimed expropriation of his land in China by the local government. According to the Written Statement, the applicant owned a 360 square metre property in China where he lived, and which he also used as a storage and processing place for his work products. Without obtaining the applicant’s consent, the local council built a factory and warehouse on the applicant’s property for a private enterprise. The council was able to do so as it had strong support from the province secretary and police. On 20 November 2011 the government knocked down the applicant’s home together with many other properties. The applicant was given a small amount of compensation, namely, 600RMB per square metre, but he was not provided with any alternative living arrangements. The applicant’s life and business were “all majorly affected”.

3. The applicant appealed to the Provincial Capital Liao Ning to force the local land bureau to admit what the government did to his property was illegal. The local court did everything possible to ignore the applicant’s and the other property owners’ cases, and this “caused the legal proceedings to be unable to be placed on file”. Because the local court did not help the applicant and his neighbours, petition was “our only other option”. The applicant and his neighbours, therefore, went to Beijing, where they stayed in a little hotel.

4. While in Beijing, men dressed in black, with strong Dong Bei accents, kidnapped the applicant and the other people. The applicant and the others were taken to a suburban house where they were held for more than 45 hours. The applicant was not given any food or water and was treated cruelly. The applicant and the others were then taken by the police to Bei Zhen City and placed in a detention centre. The applicant and the others were not allowed to sleep, and were tortured and threatened. The applicant and the others lost their will to sue. They were released 7 days later, after being made to sign a guarantee swearing they would not go to Beijing to petition and protest, and after being “given a lesson in communism to brain wash us”.

5. Following the applicant’s detention his life and business changed dramatically; he was not treated fairly; he was given trouble by the government; his business license was cancelled for no reason; he was unable to support himself or his family; strangers followed him and his family, and they were constantly being spied on; and his normal everyday life was ruined. That caused a major blow to the applicant’s mental state. The applicant no longer has a business, and no house to live in. The applicant’s family live with the applicant’s parents, with seven people living in a 100 square metre home. The applicant believed his only option for survival was to leave China and start a new life.

6. In 2012, before he applied for a Student visa, the applicant applied for a passport, but that application was rejected. The applicant had no other option but to bribe government officials to approve his application. The applicant was granted a passport after spending “120000RMB in bribes”. In 2012 he applicant applied for and was granted a Student visa for Australia.

7. Before he left China, the applicant wrote letters of appeal to Bei Zhen and Beijing’s petition officers, in which he recorded all that had happened to him, including all of the unjust actions that had been taken against him. The applicant also recorded all the names of the government officials he had to bribe, the amount of the bribes, how he was tortured and held captive. The applicant believed that if his local government finds out about the letters, he will be locked up again in a “black” gaol.

Tribunal decision

1. The Tribunal found the applicant’s credibility was severely damaged by what the Tribunal found were numerous inconsistencies between his oral and written evidence, including in relation to matters of central significance in the context of his overall claims.[1] The Tribunal identified the following inconsistencies:

   a)The applicant’s employment history. Before the Tribunal, the applicant said that, for three to four years before he departed China, he was a paid employee at a pharmacy at Shenyang, and before that time, he owned his own pharmacy. In his Student visa application form, the applicant said he had been employed by a company in Shenyang as a sales manager and herbal medicine practitioner from 2005 to 2012.[2] The applicant’s oral evidence before the Tribunal also conflicted with the statement made in his application for a Protection visa that he had been operating a business up until the time he was detained, when his business licence was cancelled.[3]

   b)The amount of compensation paid to the applicant. Before the Tribunal the applicant said he was paid 400RMB per square metre, but in his written statement the applicant said the compensation was 600RMB per metre.[4]

   c)The reasons for the expropriation of the applicant’s land. Before the Tribunal the applicant initially said he did not know why his land was expropriated, but then said it was for urban planning purposes. In the Written Statement, however, the applicant said his land was expropriated to make way for a factory which was constructed for a private enterprise.[5]

   d)The applicant’s description of the property that was demolished. Before the Tribunal, the applicant said that the property that was demolished was a 89 square metre three-bedroom apartment in a complex comprising three buildings and 12 families. In his Written Statement, however, the applicant described the property as 360 square metre property made of reinforced concrete and used as a storage and process place for his work products.[6]

   e)The number of people who travelled to Beijing with the applicant. Before the Tribunal and the delegate, the applicant said he travelled to Beijing with eight people, whereas in his Written Statement he claimed he travelled with four people.[7]

   f)The applicant’s treatment during his detention. Before the Tribunal, the applicant said he was beaten while in detention, whereas in the Written Statement the applicant said he had been severely tortured by many methods.[8]

   g)The applicant’s financial circumstances after his detention. Before the Tribunal, the applicant said in his application for a Student visa he had to show savings of 300,000 RMB and AUD$10,000 for school fees. The applicant indicated he had personally saved these funds. In his Written Statement, however, the applicant said his business licence had been cancelled and he no longer had any means to support himself and his family.[9]

   h)The amount he had to pay as a bribe to obtain a passport.  Before the Tribunal, the applicant said he paid a bribe in the amount of 150,000RMB, whereas in his Written Statement the applicant said he paid 120,000RMB.[10]

   [1] CB84, [50]

   [2] CB81, [33]

   [3] CB81, [34]

   [4] CB81, [35]

   [5] CB81, [36]

   [6] CB81-82, [37]

   [7] CB82, [39]

   [8] CB82, [40]

   [9] CB82-83, [42]

   [10] CB82, [42]

2. The Tribunal recorded the explanations the applicant gave about some of the inconsistencies, but it found they did not adequately account for the inconsistencies.

3. The Tribunal also found that other aspects of the applicant’s evidence were improbable, and inconsistent with a genuine fear of harm in China. First, the applicant commenced a course of study in Australia after arriving on a Student visa. The Tribunal considered the applicant’s attendance to be at odds with his claim that he obtained a visa for the purpose of fleeing persecution in China.[11] Second, the applicant did not apply for a Protection visa until 18 months after he arrived in Australia. The Tribunal did not accept the applicant’s explanation he did not know about such visas.[12] Third, no consequences seemed to have flowed to his family as a result of the applicant’s having sent letters exposing the corruption, bribery, and his torture. [13]

   [11] CB83, [43]

   [12] CB83, [44]

   [13] CB83, [46

4. The Tribunal was therefore not satisfied that any of the claims advanced by the applicant were true.  In particular, the Tribunal was not satisfied the applicant’s land had been expropriated or property demolished; that he had complained about the lack of adequate compensation or petitioned in Beijing; that he was detained in Beijing or Beizhen or mistreated in detention; that he was treated unfairly, given trouble by the government, had his business license cancelled, was followed, or spied on; that he had no means to support himself or his family in China; or that he wrote letters exposing corruption, bribery, and his mistreatment in detention before he departed from China.[14]The Tribunal, therefore, concluded the applicant satisfied neither s.36(2)(a) of the Act or s.36(2)(aa) of the Migration Act 1958 (Cth).

   [14] CB84, [53]

Grounds of application

1. The application for review contains three grounds of application. The first ground is:

   Department of Immigration has not provided a [sic] interviewing recording to me.

2. The applicant, who is not legally represented, submitted that, without the recording of his interview with the delegate, he was unable to refresh his memory of what he had said before the delegate. He said he was not aware he had a right to ask for the recording.

3. Ground 1, and the submissions the applicant made, raise no arguable case of jurisdictional error. There is no arguable case the Tribunal was obliged to ensure that the applicant had been given a recording of his interview before the delegate, at least not where the applicant did not request that the delegate or the Tribunal provide him with the audio recording. Further, the applicant was provided with a copy of the delegate’s decision. The record of that decision sets out in some detail the evidence the applicant gave at the interview.[15] The applicant informed me that he believed that the delegate’s decision may have been interpreted to him. Whether the decision was or was not interpreted to him, the applicant had before him at least what the delegate had considered was discussed at the interview. The applicant, therefore, had the opportunity to consider whether what the delegate had recorded was an accurate summary of the evidence the applicant gave during his interview with the delegate.

   [15] CB37-41

4. The Tribunal recorded in its reasons for decision that it had listened to the recording of the delegate’s interview with the applicant, and found that the delegate’s decision record contains an accurate summary of that interview.[16] The Tribunal itself relied on the audio recording in finding the applicant had given evidence before it that was inconsistent with what the applicant told the delegate. The applicant has not put on any evidence that suggests the Tribunal incorrectly recorded the effect of what the audio recording recorded the applicant had said to the delegate.

   [16] CB80, [28]

5. The second ground is:

   AAT has not provided a hearing recording to me.

6. At the hearing before me, the applicant confirmed that the recording to which this ground refers is the recording of the applicant’s interview with the delegate. As I have already noted, there is no arguable case the Tribunal was obliged to ensure that the applicant had been given a recording of his interview before the delegate, at least not where the applicant did not request the delegate or the Tribunal to provide him with an audio recording. Ground 2, therefore, raises no arguable case of jurisdictional error.

7. The third ground is:

   The decision for my protection visa application is not fair.

8. Before me, the applicant submitted that the Tribunal repeatedly asked him questions about evidence he gave concerning his having been born in a village, then moving to the township where he bought his house, and then moving back to the village after his house was demolished. The applicant submitted the Tribunal was confused about this.

9. The only evidence that is before me of what occurred at the hearing before the Tribunal is the Tribunal’s decision record.[17] That does not refer to any questioning by the Tribunal about the applicant’s movements between his village and the township. It follows that there can be no arguable case of jurisdictional error based on the applicant’s assertion that the Tribunal was confused about the applicant’s evidence of his movements between the township and the village before and after his house was demolished.

   [17] CB80-84, [29]-[49]

10. It may be, as was submitted by Ms Warner Knight, who appeared for the Minister, that the applicant’s submissions related to the interview he had with the delegate. The delegate’s decision record refers to the delegate’s asking the applicant a number of questions about the applicant’s movements to the countryside after his house was demolished.[18] That, however, does not disclose any confusion by the delegate; and, in any event, if the delegate was confused, there is no arguable case the Tribunal made any jurisdictional error, either because the delegate was confused, or because the Tribunal was confused.

    [18] CB40-41

11. Ground 3 otherwise discloses no arguable case of jurisdictional error because it is an unparticularised allegation that the Tribunal’s decision is unfair.

Conclusion and disposition

1. I am satisfied that the application raises no arguable case for the relief it seeks. I propose, therefore, to order that the application be dismissed.

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

Date: 2 December 2016