BUK15 v Minister for Immigration

[2019] FCCA 1633

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUK15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1633

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal sought and had regard to information in accordance with s 424 of the Migration Act 1958 (Cth) – whether the Tribunal made an unreasonable conclusion – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: BUK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2443 of 2015

Judgment of: Judge Street

Hearing date: 13 June 2019

Date of Last Submission: 13 June 2019

Delivered at: Sydney

Delivered on: 13 June 2019

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr L Leerdam
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

DATE OF ORDERS: 13 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2443 of 2015

BUK15

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 August 2015 affirming the 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. On 13 August 2006, the applicant arrived in Australia on a fraudulent People’s Republic of China passport in another identity. The applicant claims, in summary, to fear harm by reason of breaching the one-child policy, his Christian faith and his actual or imputed political opinion.

3. On 8 September 2006, the applicant lodged his first application for a protection visa. On 14 November 2006, the applicant’s first application for a protection visa was refused. On 29 March 2007, that decision was affirmed by the Refugee Review Tribunal. The applicant then sought judicial review which was unsuccessful and decided on 3 August 2007. The applicant then sought review in the Full Court of the Federal Court of Australia which was unsuccessful and decided on 26 November 2007. The applicant then sought special leave to appeal to the High Court of Australia which was unsuccessful and decided on 2 December 2009.

4. On 13 March 2014, the applicant lodged a second application for a protection visa. On 12 August 2014, a delegate found that the applicant failed to meet the criteria for the grant of a protection visa on the grounds of complementary protection. On 2 September 2014, the applicant then applied for review to the Tribunal. By letter dated 8 May 2015, the applicant was invited to attend a hearing before the Tribunal on 5 August 2015. The applicant attended the hearing on that date to give evidence and present arguments. The applicant was represented by his migration agent and assisted by an interpreter.

5. The Tribunal, in its reasons, identified the background to the review application. The Tribunal correctly identified that, in respect of the second application for a protection visa, it was to be assessed against the complementary protection criteria. The Tribunal summarised the relevant law in relation to complementary protection. The Tribunal referred to the applicant’s claims. The Tribunal did not accept that the applicant was, generally, a credible witness and provided reasons in support of that adverse credibility finding.

6. The Tribunal found that the applicant arranged for the payment of his debt for having breached the one-child policy in 2003, prior to his departure from China in 2006. In these circumstances, the Tribunal found that the applicant had departed China legally. The Tribunal did, however, take into account the possibility it was wrong in finding that the applicant departed China legally and also took into account that the applicant used a false passport. The Tribunal was satisfied that the applicant does not have a profile which would give rise to a real risk of him coming to the adverse attention of the Chinese authorities, or anyone else, should he return to China, apart from being required to pay a fine by instalments if he departed China illegally.

7. The Tribunal referred to the applicant’s evidence in relation to being a jeweller in China and remitting funds from Australia to China. In these circumstances, the Tribunal was satisfied that the applicant, as a jeweller, would have the capacity to pay any fine for having departed China illegally on his return. Accordingly, the Tribunal found that the applicant does not face a real risk of suffering any significant harm for reasons concerning his departure, including if he departed illegally.

8. The Tribunal referred to the applicant’s claims in respect of a breach of the family planning regulations. The Tribunal referred to country information. The Tribunal also referred to the applicant giving evidence at the hearing that he has a 21 year-old son and a 14 year-old daughter. The Tribunal was not satisfied that the applicant’s wife has been harmed, harassed, or even questioned by the Chinese authorities, or anyone else, after the applicant departed China for any reason relating to a breach of the one-child policy or any medical procedure. The Tribunal was not satisfied that the applicant has a real risk of suffering any significant harm for reasons of non-compliance with the one-child policy.

9. The Tribunal also referred to the applicant’s claim that he had written several hundred letters of complaint to the Chinese authorities about his wife’s treatment. The Tribunal was satisfied that the applicant has exaggerated, if not fabricated, this claim. The Tribunal accepted that the applicant had lodged limited complaints about the treatment of his wife but not to the claimed extent.

10. The Tribunal made reference to the applicant’s claim that he was arrested, first in March 2006 for two weeks and then in May or June 2006 for one month. The Tribunal also referred to the applicant identifying before the delegate different dates in respect of the two arrests. The Tribunal also referred to the applicant identifying that he continued to reside in his home village until he departed China in August 2006. When the applicant was asked by the Tribunal at the hearing what he did after being released from detention, the applicant indicated that he lived in his own jewellery shop to clean up the same.

11. The Tribunal was satisfied that it is implausible the applicant was of any ongoing interest to the Chinese authorities. The Tribunal found that the applicant would not have been released and that he would not have lived in his own shop if he was of ongoing interest to the Chinese authorities. The Tribunal also referred to the applicant’s evidence at the hearing that he lived in the home of a friend until he departed from China. The Tribunal found, however, given the small size of the village, that the applicant’s assertion of being in hiding was not plausible.

12. The Tribunal was prepared to accept that the applicant was detained on two occasions for reasons of complaining about his wife’s medical treatment. The Tribunal found that the applicant was released without charge. The Tribunal also found that the applicant is not of any adverse interest to the Chinese authorities, or anyone else, for the reasons claimed. The Tribunal was not satisfied that the applicant has a real risk of suffering any significant harm in China for reasons of the claims made.

13. The Tribunal referred to the applicant’s claim that he was harassed, intimidated and told by the police not to participate in a house church in China. The Tribunal also referred to the applicant’s evidence in relation to his attendance at a Christian Assembly, his attendance at church since 2003, and that he belonged to the Christian Gathering Church in China. The Tribunal also referred to the applicant not knowing the name of his church prior to arriving in Australia. The Tribunal also referred to the applicant knowing little, if anything, about his claimed religious practice in China. The Tribunal also referred to country information in relation to the applicant’s church and the applicant’s knowledge of the same. The Tribunal rejected the applicant’s evidence about his engagement in a church in China, finding the same to be false. The Tribunal also took into account the applicant’s evidence, in this regard, in finding that the applicant was not a witness of truth.

14. The Tribunal referred to the applicant’s alleged activities in distributing pamphlets as a means of preaching Christianity. The Tribunal also referred to the applicant’s evidence that his wife had attended the same church as the applicant for thirty years and had never had any problems in China arising from this. The applicant claimed that his problems arose out of handing out pamphlets. The applicant referred to two friends who he alleged were arrested for handing out pamphlets in 2005 or 2006. The Tribunal referred to inconsistent evidence the applicant gave about the two persons, who allegedly referred to the applicant as a leader while detained by the police. The Tribunal raised with the applicant the issues of the inconsistent evidence and that the applicant appeared to have changed his claims to suit his case. The Tribunal found that the applicant had been released from the second detention because he was no longer of adverse interest to the Chinese authorities. The Tribunal also took into account that the applicant had failed to explain why he allegedly went into hiding immediately on his release. This was a further factor taken into account by the Tribunal in finding the applicant not to be a credible witness.

15. Given the adverse credibility findings, the Tribunal was not satisfied that the applicant was of any ongoing interest to the Chinese authorities, or anyone else in China, prior to his departure. The Tribunal, having found the applicant not to be a credible witness, did not accept that the applicant’s wife continued to be harassed in China after his departure for any reason as claimed. The Tribunal also did not accept that the applicant had anything to do with a Christian church in China or that he wishes to preach on his return to China. The Tribunal also did not accept that, if the applicant engages with his wife’s church on his return to China and given that his wife has never been harmed, harassed or questioned about her attendance at the church, the applicant faces a real risk of suffering any harm should he attend the same church.

16. The Tribunal was not satisfied that the applicant has a real risk of suffering any significant harm in relation to his claims concerning religion. The Tribunal was not satisfied that the applicant has a real risk of suffering harm in China for reason of attendance at a church in Australia. The Tribunal was not satisfied that the applicant would be imputed with any conviction that would give rise to a real risk of him suffering any harm on return to China.

17. The Tribunal was not satisfied that there are substantial grounds for believing, 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 if returned to China. In these circumstances, the Tribunal found that the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. On 4 September 2015, these proceedings were commenced by the applicant. On 15 October 2015, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application and affidavit evidence. On 29 October 2018, the Court made orders giving the applicant a similar opportunity. No such documents were filed.

2. 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.

3. From the bar table, the applicant rhetorically questioned the adverse credibility findings made by the Tribunal. The Tribunal referred to a number of different aspects of the applicant’s claims and evidence, as summarised above, in concluding that the applicant was not a credible witness. Those matters include the applicant’s payment of the one‑child policy debt prior to his departure, the applicant, having departed China legally, the applicant not having gone into hiding given the implausibility of the same in a small village, and the other inconsistencies and implausibilities referred to above. The Tribunal’s adverse credibility findings in respect of the applicant cannot be said to be illogical, irrational or unreasonable.

4. The applicant’s disagreement with the Tribunal’s adverse credibility findings does not make out any jurisdictional error. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal failed to act in pursuant to section 424. In conducting a review, the Tribunal may get any information that it considers relevant. However, the Tribunal failed to make the decision on this regard on its review.

   Particulars

   The Tribunal cited the criminal penalty in respect of “unlawfully departed China” but the Tribunal did not make any reference to that as to why the applicant would not be punished by the Chinese authorities.

   2. The Tribunal erred in arriving at a conclusion without supported evidence.

   The Tribunal made its finding that the applicant was detained on two occasions in China. The Tribunal also agreed that it was possible for the applicant to hide in the small size of the village but declined to believe it to be plausible. The Tribunal gave no supporting evidence and reason to it. As such, the Tribunal erred in making the finding that the applicant is no longer of any adverse interest to the Chinese authorities.

Ground 1

1. In relation to ground 1, there is nothing to support the contention that the Tribunal did other than comply with its statutory obligations in conducting the review. There is no easily identifiable information of a material kind identified by the applicant in respect of which the Tribunal had a duty to make an inquiry. The applicant’s contention that he left China unlawfully was a consideration taken into account by the Tribunal. The Tribunal addressed the applicant’s claims, by both having found that the applicant departed China legally and applying a “what if I am wrong” test in respect of if the applicant’s departure was illegal. There is no basis for any finding of non-compliance with s 424 of the Act. The applicant was invited to and attended a hearing before the Tribunal in accordance with the statutory provisions. On the face of the material before the Court, the applicant had a real and meaningful hearing.

2. Further, the Tribunal referred to the possibility of the applicant having to pay a penalty by reason of his alleged illegal departure from China and made dispositive adverse findings on that possibility which were open to the Tribunal. The Tribunal also referred to the applicant’s employment in Australia. The Tribunal also referred to the funds which the applicant remitted from Australia to China. In these circumstances, the Tribunal found that the applicant would be able to pay such a penalty. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant takes issue with the Tribunal’s adverse findings in relation to him being detained on two occasions. In that regard, the Tribunal referred to the different evidence which the applicant had given about the dates on which he was detained. The Tribunal accepted that the applicant had been detained on two occasions but had been released without charge. The Tribunal also found that the applicant is not of any adverse interest to the Chinese authorities.

2. These adverse findings were open to the Tribunal and were supported by evidence. The applicant’s disagreement with the finding that he was no longer of adverse interest to the Chinese authorities does not identify any error and the adverse finding was open to the Tribunal, given that the applicant was released from detention on the second occasion. The adverse finding by the Tribunal in respect of the applicant’s evidence concerning his hiding was open to the Tribunal for the reason summarised above and cannot be said to lack an evident and intelligible justification. The applicant’s disagreement as to the implausibility of him being able to hide in a small village is, in substance, an invitation to the Court to engage in merits review. The Tribunal also referred to the failure of the applicant to explain why it was that he went into hiding. In these circumstances, the adverse finding by the Tribunal in respect of the applicant no longer being of interest to the authorities was open to it and logical, rational and reasonable. No jurisdictional error is made out by ground 2.

Section 438 certificate

1. The first respondent, as a model litigant, has drawn the Court’s attention to the fact that, in the circumstances of the present case, there was a s 438 certificate which was issued. The first respondent has tendered the documents the subject of the s 438 certificate, subject to certain redactions on the grounds of public interest immunity.

2. The Court has looked at the documents the subject of the certificate which, insofar as relevant, identified the false passport used by the applicant. The applicant acknowledged in his application for a protection visa that he had used a false passport. No part of the Tribunal’s reasoning in respect of credibility of the applicant referred to the applicant’s use of a false passport, or any other information the subject of the s 438 certificate. The Court is satisfied that the applicant suffered no practical injustice by reason of the non-disclosure of the s 438 certificate, or the documents the subject of the certificate, in the circumstances of the present case.

3. It was part of the applicant’s claim that he had used a false passport and, insofar as the documents the subject of the s 438 certificate related to the false identity used by the applicant, this was an issue which the applicant had himself raised in his application for a protection visa. Accordingly, no jurisdictional error arises by reason of the non-disclosure of the s 438 certificate or the documents the subject of the s 438 certificate. The Court does not accept that any of the documents the subject of the s 438 certificate were material to the conduct or determination of the Tribunal’s review.

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

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2019