BVE17 v Minister for Immigration

[2018] FCCA 1473

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1473

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China on account of his practise of Falun Gong – applicant not believed – whether the Tribunal failed to consider an integer of the applicant’s claims concerning members of his family in China considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 477

Cases cited:

AMA15 v Minister for Immigration [2015] FCA 1424

SZGIZ v Minister for Immigration [2013] FCAFC 71

SZSHK v Minister for Immigration [2013] FCAFC 125; (2013) 138 ALD 26

Applicant: BVE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1288 of 2017

Judgment of: Judge Driver

Hearing date: 6 June 2018

Delivered at: Sydney

Delivered on: 20 June 2018

REPRESENTATION

Counsel for the Applicant: Ms U Okereke-Fisher

Solicitors for the Respondents: Ms C Hillary of DLA Piper

ORDERS

(1)The application as amended in court on 22 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1288 of 2017

BVE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1.The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 January 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  The following statement of background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them is derived from the Minister’s outline of submissions filed on 14 May 2018. 

2.The applicant is a male citizen of China born on 26 February 1980 who arrived in Australia on 27 February 2009 as the holder of a tourist (subclass 676) visa.[1]

[1] Court Book (CB) 106

3.The applicant lodged a protection (Class XA) visa application on 28 April 2014.[2]  This was his second protection visa application and was lodged in conformity with the court rulings in SZGIZ v Minister for Immigration[3] and AMA15 v Minister for Immigration,[4] where it was held that an applicant may apply for a further protection visa under s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act) in circumstances where the initial application was only assessed under s.36(2)(a) of the Migration Act.

[2] CB 29

[3] [2013] FCAFC 71

[4] [2015] FCA 1424

4.The applicant’s claims outlined in his protection visa application are listed at [13]-[18] of the Tribunal’s decision record.[5]  In summary, the applicant claimed that:

a)he was reported for practising Falun Gong.  As a result he was arrested by police and detained by the Public Security Bureau (PSB) in Kaifeng City for a month;

b)during this time, he was beaten and forced to attend brainwashing classes;

c)due to his arrest he was released from his job, and had to practise Falun Gong in secret.  He was interrogated by police many times prior to the 2008 Beijing Olympics;

d)after his fellow practitioners were arrested in 2009, he fled Kaifeng fearing for his safety.  He divorced his wife in February 2009 to avoid any impact on her;

e)he fled China on 29 February 2009 after his sister assisted him to obtain a passport and his father helped him apply for a tourist visa;

f)the PSB has since issued an arrest warrant for him; and

g)the Chinese Consulate General has refused to approve his application for a new Chinese passport.

[5] CB 226-227

5.On 7 April 2015 the delegate refused the application for a protection visa on the basis that:

a)the delegate was not satisfied on the evidence provided that the applicant was a Falun Gong practitioner, and therefore he would not be detained for any period of time if he returned to China either on the basis of any Falun Gong connection or on the basis of having applied for a protection visa;[6] and

b)the delegate was not satisfied that the applicant’s claims met the threshold of significant harm.[7]

[6] CB 120

[7] CB 122

6.The applicant applied to the Tribunal for review of the decision on 8 May 2015.

7.On 17 November 2016 the applicant provided a further statutory declaration dated 16 November 2016, containing additional information related to his claims that is summarised from [20]-[24] of the Tribunal decision record.[8] In summary, the applicant claimed that:

a)he did not apply for a protection visa immediately upon arriving in Australia because he did not speak English and did not know the law.  He was scared because his Chinese tour guide had taken his passport on arrival in Australia;

b)he and his colleagues practiced Falun Gong once a month in China and learned about it through watching DVDs;

c)he was required to regularly report to police during the 2008 Olympics and was questioned a number of times;

d)he has read the book Zhuan Falun but could only practice secretly in China.  He practised Falun Gong alone since he arrived in Australia.  He did not have a passport and was scared he would be sent back to China by Australian Immigration; and

e)he has not contacted his ex-wife since he came to Australia or his parents as they work for the Chinese government. 

[8] CB 174-175, 224

8.The applicant appeared before the Tribunal on 23 November 2016 to give evidence and present arguments. 

9.On 24 November 2016 the Tribunal sent a letter to the applicant, inviting him to comment on various inconsistencies in his evidence that were discussed with him at the hearing on 23 November 2016.[9]  The inconsistencies outlined in the letter are reproduced at [26] of the Tribunal’s decision record.[10]

[9] CB 187

[10] CB 227-228

10.On 8 December 2016 the applicant responded to the Tribunal’s letter.[11]

[11] CB 192

11.On 18 January 2017 the Tribunal reached its decision to affirm the delegate’s decision to refuse the grant of a protection visa.[12]

[12] CB 224

The decision of the Tribunal

12.In light of the decision in SZGIZ, the Tribunal only considered the applicant’s claims in relation to s.36(2)(aa) of the Migration Act.

13.In reaching its decision, the Tribunal considered:

a)the extent of the applicant’s practice of Falun Gong in China from [28]-[30];

b)the applicant’s involvement in the promotion and defence of Falun Gong in China from [31]-[33];

c)the applicant’s detention and forced undertaking to cease practising Falun Gong from [34]-[37];

d)the wanted notice issued for the applicant in China from [38]-[46];

e)the applicant’s practice of Falun Gong in Australia from [47]-[50];

f)whether there were substantial grounds for believing there is a real risk the applicant will suffer significant harm on return to China for reason of his claimed Falun Gong activity from [51]-[54];

g)the applicant’s claimed inability to obtain a Chinese passport from [55]-[59]; and

h)the applicant’s fear of returning to China for reason of having applied for a protection visa in Australia from [60]-[62].

14.There were two central reasons the applicant claimed he would suffer harm if returned to China, being his Falun Gong activity, and his application for a protection visa in Australia.

15.In respect of the applicant’s claims he would suffer significant harm on return to China for reason of his claimed Falun Gong activity the Tribunal found:

a)it had no confidence that the applicant’s evidence is truthful and considered it likely the claims had been contrived for the purpose of obtaining protection in Australia;[13]

b)it did not accept the applicant was a Falun Gong practitioner or involved in the promotion of Falun Gong activities in China, or that he was detained, tortured or ever forced to promise he would refrain from practising Falun Gong in China.  Nor did the Tribunal accept the applicant or any of his family have otherwise been harmed or harassed on account of him being a Falun Gong practitioner;[14] 

c)it did not accept the applicant had ever practiced Falun Gong in Australia, and there was nothing to suggest the applicant would practice Falun Gong if he returned to China.  It did not accept the Chinese authorities have an interest in locating and arresting the applicant for his Falun Gong practice;[15] and

d)there are no substantial grounds for believing there is a real risk the applicant will suffer significant harm on return to China for reason of his Falun Gong activity.[16]

[13] [51]

[14] [52]

[15] [53]

[16] [54]

16.In respect of the applicant’s claims that he feared he would be detained and harmed if returned to China for reason of applying for a protection visa in Australia, the Tribunal found:

a)based on the findings about the applicant’s behaviour in China and Australia, the Tribunal was satisfied the Chinese authorities have no cause to suspect the applicant was, is or would be a Falun Gong practitioner;[17] and

b)therefore, in the circumstances, there is not a real risk the applicant will be significantly harmed on return to China for reason that the Chinese authorities are aware he applied for a protection visa in Australia due to his Falun Gong activities.[18] 

[17] [62]

[18] [62]

17.For the reasons above the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act.

The current proceedings

18.These proceedings began with a show cause application filed on 28 April 2017. That application was lodged outside the period prescribed by s.477(1) of the Migration Act and the applicant sought an extension of time pursuant to s.477(2). That application was heard on 22 May 2018. I granted the extension of time sought, noting that the delay in this case of 65 days was not exceptionally long, the applicant had provided an explanation for the delay and the applicant was now represented by counsel who certified reasonable prospects of success for an amended application which reduced the grounds of review from 11 to 1.

19.I granted the applicant leave to file and rely upon the amended application, subject to a costs penalty. I also dispensed with the need for a preliminary hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) and listed the matter for a final hearing on 6 June 2018.

20.As noted above, the amended application contains only one ground of review which is pressed:

Ground 1: Jurisdictional Error – The Tribunal failed to consider integers of the Applicant’s Claims and thereby fell into error.

PARTICULARS

1. The Tribunal erred in that it failed to consider the Applicant’s claims in paragraphs 17 and 24 of the Decision, the Applicant expressly stated that (iii) His return to China would also impact on his parents, his siblings and his ex-wife and (iv) He has not contacted his ex-wife since he came to Australia or his parents as they work for Chinese government. (Claims).

2. The [C]ourt, failed to address and register findings on integers of the Applicant’s claims, thereby falling into error.

21.The application is supported by an affidavit by the applicant made on 5 October 2017.  The body of that affidavit ceased to be relevant upon the granting of the extension of time, but it has annexed to it a transcript of the Tribunal hearing on 23 November 2016, which I received subject to relevance.  Parts of the transcript were addressed in oral submissions and I accept that it has some relevance. 

22.I also have before me as evidence the court book filed on 7 September 2017.

Consideration

23.The applicant contends that the Tribunal failed to consider integers of his claims, namely those claims identified by the Tribunal at [17] and [24] of its decision.  The applicant contended before the Tribunal that his return to China would impact not only on him but on his parents, his sibling and his ex-wife.  He asserted that he had not contacted his ex-wife since he came to Australia or his parents as they work for the Chinese government. 

24.I accept that both in his written claims[19] and in his oral claims put to the Tribunal at the hearing[20] the applicant asserted not only that he would be harmed if returned to China but that his family would be as well, in particular because some were government employees.  It is not entirely clear whether that claim was made on the basis that family members would themselves be harmed or, rather, that they would be compelled to be involved in the harm to the applicant that would follow his return, or perhaps a combination of the two.

[19] CB 46 and 61

[20] Transcript, pages 6, 7, 17, 18 and 21

25.It is clear that the Tribunal was aware of the claims, as it noted them in its decision.  The question is whether the Tribunal was obliged to consider the claims further in its reasons.  The difficulty for the applicant is that these claims did not exist in a vacuum.  They were not freestanding claims.  The applicant was not contending that he or his family members would be harmed in China simply because they were related to one another or because some relatives worked for the government.  The applicant was asserting that he and his family would be harmed (or that some would be forced to harm him) because of his involvement in the practice of Falun Gong.  The Tribunal rejected the Falun Gong claim.

26.The Tribunal considered the applicant’s claims for complementary protection from [28]-[50] and the Tribunal’s assessment of the family members’ integers were subsumed in its findings at [51]-[54].

27.Further, the Tribunal’s findings in respect to the complementary protection criteria at [51]-[54] were permissibly informed by its prior references made to the integers of the applicant’s claim at [16], [17] and [24].[21]   

[21] SZSHK v Minister for Immigration [2013] FCAFC 125; (2013) 138 ALD 26 at [32], [34]

Conclusion

28.I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

29.I will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  20 June 2018