BUE17 v Minister for Immigration

[2020] FCCA 1339

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUE17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1339

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Subclass 866) visa – whether the Tribunal did not take into account relevant considerations – whether the Tribunal did not properly consider the applicant’s claim – whether the Tribunal took into account irrelevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: BUE17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 227 of 2017

Judgment of: Judge Street

Hearing date: 26 May 2020

Date of Last Submission: 26 May 2020

Delivered at: Sydney

Delivered on: 9 June 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Mr A Gerrard via Microsoft Teams
AGS

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 227 of 2017

BUE17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 April 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Subclass 866) visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. In May 2007, the applicant arrived in Australia as the holder of a student visa. In July 2008, the applicant departed Australia to China where he remained until August 2008. In August 2008, the applicant arrived again in Australia as the holder of another student visa.

3. It was not until 15 May 2015, in circumstances where the applicant remained in Australia unlawfully from 26 August 2009, that the applicant applied for a Protection visa. The applicant, in summary, claimed to fear harm by reason of his Catholic faith.

4. On 29 July 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

5. On 21 August 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. By letter dated 13 February 2017, the Tribunal invited the applicant to attend a hearing on 31 March 2017. The applicant appeared on that date to give evidence and present arguments.

6. The Tribunal, in its reasons, identified the background to the review application and the applicant’s application for a Protection visa. The Tribunal identified the relevant law in an Appendix A, which was incorporated by pagination into the Tribunal’s reasons. That Appendix A also included applicable principles in relation to the assessment of the applicant’s credibility. The Tribunal summarised the applicant’s claims.

7. The Tribunal referred to what the applicant said he did when he returned to China in July 2008 as visiting his father and grandparents at the family home. The Tribunal referred to the applicant informing the Tribunal that his younger brother and mother continue to reside unlawfully in Australia.

8. The Tribunal referred to the applicant’s claims in relation to the expropriation of family property and the physical harassment experienced by his father, which the applicant alleged were linked to religious persecution. The Tribunal referred to country information and did not accept that the applicant would be prevented from or persecuted for practicing his actual religion on return to China. The Tribunal did not accept that the applicant would be exposed to religious persecution by his grandmother or the parish priest.

9. The Tribunal found that the applicant does not have a well-founded fear of persecution if he returns to China on the basis of his Christian belief. The Tribunal found that there is no real chance of serious harm to the applicant as a necessary and foreseeable consequence of being removed from Australia to China on account of his actual Christian belief.

10. The Tribunal found that there are not 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 that the applicant will suffer significant harm on account of his Christian belief.

11. The Tribunal referred to the applicant’s claims in relation to the expropriation of the family home and the physical harassment in the form of beatings sustained by his father. The Tribunal, in that regard, referred to the applicant’s alleged supporting certificates in between the period 2009 to 2015 relating to the applicant’s father. The Tribunal identified grounds of implausibility in relation to those certificates and placed little weight on the same.

12. The Tribunal drew the applicant’s attention to the prevalence of documentary fraud in China. The Tribunal placed little weight on the documentation contained within the applicant’s departmental file relating to his claims of land expropriation and physical harassment of his father. The Tribunal did not accept that the applicant’s family home was demolished. The Tribunal did not accept the applicant’s claim that his father experienced physical harassment related to the same.

13. The Tribunal found that the applicant does not have a well-founded fear of persecution if he were to return to China in connection with a claim for compensation made by his family arising out of a railway project. The Tribunal found that there is no real chance of serious harm to the applicant as a necessary and foreseeable consequence of him being removed from Australia to China on account of the railway project. The Tribunal found that there are not 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 he would suffer significant harm on account of the railway project.

14. The Tribunal referred to the applicant’s claim of corrupt officials and the applicant’s contention that this was connected to his family’s Christian faith. The Tribunal did not accept that the applicant’s family home had been destroyed or the land expropriated. The Tribunal did not accept that the applicant’s father suffered physical harassment as claimed by the applicant. The Tribunal did not accept the applicant’s claim of official persecution in connection with his family’s land or in relation to religious persecution, separately or cumulatively.

15. The Tribunal found that the applicant does not have a well-founded fear of persecution in connection with the high-speed railway project or in relation to religious based persecution.

16. The Tribunal also referred to the delay by the applicant in making the application for protection and did not accept the applicant’s explanation for the delay as being credible.

17. The Tribunal, taking into account the applicant’s claims individually and cumulatively, found that there is nothing to suggest that the applicant would face persecution now or in the reasonably foreseeable future as a result of either his actual or imputed Catholic Christian faith or the claims for compensation made by his family arising from a high-speed rail project if he were to return to China.

18. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

19. The Tribunal also considered the applicant’s claims in relation to complementary protection. The Tribunal found that there were no 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 will suffer significant harm. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

20. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 26 April 2017.

2. On 1 June 2017, a Registrar of the Court made orders providing the applicant and opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant maintained that he provided all the evidence to support his claims and that what he said was true. The Tribunal, on the face of its reasons, collectively identified the applicant’s claims and made dispositive findings that were open to the Tribunal for the reasons given by the Tribunal. Those reasons cannot be said to lack an evident and intelligible justification.

5. The applicant also disagreed with the adverse findings by the Tribunal in relation to his credibility as a result of the delay in applying for protection. That delay was a logical and rational matter for the Tribunal to take into account in determining whether or not to accept the applicant’s claims. The applicant’s disagreement with the criticism in relation to the applicant’s credibility does not identify any jurisdictional error.

6. The applicant’s submission from the bar table, in substance, invited impermissible merits review.

7. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the Application

1. The grounds in the application are as follows:

   1. The Tribunal made a finding without supporting evidence, namely, the Tribunal drew the attention of the applicant that document fraud was common in China. However, the Tribunal failed to provide the evidences that the applicant’s documents were falsified. The Tribunal erred in placing little weight on the documentation in respect of the claims of land expropriation and physical harassment of the applicant’ father.

   2. The Tribunal failed to consider the applicant’s claim of his Christianity separately. The Tribunal declined the applicant’s claim merely based on the findings of land expropriation.

   3. The Tribunal erred in the interpretation of “delay” in seeking protection. The delay in lodging the protection visa application cannot be said on its own to have “conclude” the question in relation to the applicant’s credibility, nor in relation to the answer the question as to whether he had a well found fear of persecution.

   The Tribunal specifically classified the “delay” as “credibility issues”. Clearly, the Tribunal has “concluded” that the applicant is not a witness of credit because of “his seeking protection for more than four years after his student visa expired”.

Ground 1

1. In relation to ground 1, the Tribunal’s reasons expressly identified country information in relation to the prevalence of fraud in respect of documentation in China. Further, the applicant was on notice of that issue as a similar finding had been made by the Delegate. Further, it is apparent from the Tribunal’s reasons that the Tribunal raised the issue of documentary fraud in relation to the applicant’s father’s medical certificates concerning the alleged harassment in relation to the rail project. It was, in these circumstances, open to the Tribunal to place little weight on the documentation. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Tribunal expressly considered the applicant’s claims in relation to Christianity and took into account the applicant’s evidence seeking to link Christianity to the land expropriation. The Tribunal made dispositive findings in relation to the applicant’s claim to fear harm on the basis of Christianity. The Tribunal also made separate dispositive findings in relation to the land expropriation. Those findings were open to the Tribunal for the reasons given by the Tribunal, as summarised above. No jurisdictional error arises by reason of ground 2.

Ground 3

1. In relation to ground 3, the delay in the applicant applying for a Protection visa was a logical and rational matter for the Tribunal to take into account. The Tribunal was not required to accept the applicant’s evidence and was entitled to evaluate the credibility of the applicant’s claims. Further, it was for the applicant to provide sufficient evidence to establish his claims. It is also the case that the applicant’s credibility was only one of the issues the Tribunal took into account in its adverse findings. The Tribunal was entitled to do so. No jurisdictional error arises by reason of ground 3.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 9 June 2020