BVT16 v Minister for Immigration

[2017] FCCA 2379

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVT16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2379

Catchwords:
MIGRATION – Application for protection visa –review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s fear and risk of harm upon return to China – whether the Tribunal failed to consider the evidence before it – whether the Tribunal exercised a reasonable apprehension or actual bias – no jurisdictional error –application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: BVT16

Second Applicant: BVU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1885 of 2016

Judgment of: Judge Smith

Hearing date: 5 September 2017

Date of Last Submission: 5 September 2017

Delivered at: Sydney

Delivered on: 5 September 2017

REPRESENTATION

The applicants appeared in person.

Solicitors for the Respondents: Ms K Evans, Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1885 of 2016

BVT16

First Applicant

BVU16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 24 June 2016.  The Tribunal affirmed a decision of a delegate of the Minister made on 22 December 2014 refusing to grant the applicants a protection visa.  The applicants are father and son and citizens of China.  They applied for a protection visa on 31 March 2014. 

2. The claims are set out at [8] of the delegate’s decision and are as follows:

   CLAIMS FOR PROTECTION

   The applicant’s written claims are on Department of Immigration and Border Protection (department) file CLF2014/50093 from folio 32 - 35 and are summarised as follows:

   ·On account of his wife’s complaints to the government over compensation the applicant’s son experienced alienation and discrimination from his school in China. This caused the applicant to send his son to Australia to study in 2009.

   ·The applicant practised Falun Gong in China secretly and was never caught doing so. In Australia he has taken part in collective practice of Falun Gong and in the activities of truth telling.

   ·In 2011 he participated in Falun Gong activities on Falun Dafa Day held May of that year. His parents told him that they were visited by the security police and told to “ask us to stop our activities immediately” or we would come to no good end. A Falun Gong colleague in Sydney who participated in the same event received the same information from his family. Both concluded that a person who photographed them might have “spilled the beans” on them.

   ·Since this time his family members in in China are required every year to attend a “seminar of enlightening the Falun Gong activists’ family members which is actually a brainwashing. His parents have been very frightened by this and to alleviate their anxiety he has had to refrain from going to any practice activity in public places in Australia.

   ·The applicant had misgivings about making an application for protection in light of the failure of his wife’s protection visa application which made them fearful of lodging an application. Repatriation to China would be a grave disaster the family.

   ·His family members in China are still subjected to continuous harassment by the local government. Just before the Spring Festival of 2014 the police visited the house in China and obliged his parents to make phone calls to the applicant and family to warn them not to take part in any activity Falun Gong including the “parade of Chinese lunar New Year” and the promotion of the Shenyang Troup, “they” used to be active participants in these two activities.

   ·As a matter-of-fact they lost their residence house in China and have been left homeless. They would like their case for protection to be reviewed carefully and more favourably. The applicant and his son need to find a way to stay in Australia in order to keep their faith.

   (Emphasis in original)

Tribunal’s decision

1. The applicants attended a hearing conducted by the Tribunal on 18 May 2016 and were asked questions about their claims.  Amongst other things, the first applicant (applicant) told the Tribunal that he was not a committed and genuine practitioner nor was he a believer in Falun Gong.  He simply liked to associate with practitioners.  According to the Tribunal’s decision record, it raised with the applicant a number of its concerns with his evidence. 

2. In its decision made on 24 June 2016, the Tribunal rejected the applicant’s claims because it found that the applicant was not a credible witness because his evidence about a number of significant matters was confused, contradictory, inconsistent over time, and in many respects vague and general and far from convincing. 

3. It set out in some detail the bases for those conclusions.  The Tribunal found that the applicant’s claims were false and that it did not accept that the applicant’s wife or any other family member were ever involved or associated with or practiced Falun Gong.  It did not accept that the applicant had ever attended any Falun Gong gatherings in China, or had any involvement in, or associated with Falun Gong adherents or practitioners there. 

4. It also did not accept that the applicant practiced Falun Gong in Australia.  The Tribunal found, however, that even if the applicant did attend the Falun Gong event in Australia in 2011 as claimed, it did not accept that that attendance was recorded by any agent of the Chinese government or had given rise to an adverse interest in the applicant or his parents. 

5. With respect to the claim that the applicant had lost his home in China, the Tribunal again rejected the factual basis for the claim because it did not find the applicant a credible witness.  For those reasons, the Tribunal found that the applicant did not satisfy the criteria for the grant of the protection visa and affirmed the decision of the delegate.

Consideration

1. The application filed with this Court has eleven paragraphs.  The applicant was invited at the hearing today to make submissions in support of the grounds stated in the application but he was unable to do so.  He said that he had found an agent online who organised everything for him after he had paid the agent several hundred dollars.  I am not confident that the applicant is even aware of the contents of the application.  Nevertheless, I will consider the grounds set out in it. 

2. The first ground in the application is simply a disagreement with the conclusion made by the Tribunal and does not give rise to any potential error within the jurisdiction of the Court.  That ground is rejected. 

3. The second ground is firstly that the Tribunal failed to consider the applicant’s Falun Gong background and secondly, that the hearing had not given the applicant the chance to demonstrate his understanding of the Falun Gong faith.  Neither of those assertions can be accepted. First, far from failing to consider the applicant’s family’s Falun Gong background, the Tribunal rejected the claim based upon that background as a fabrication.  Secondly, it was the applicant’s own evidence at the hearing that he was not a believer or genuine practitioner of Falun Gong.  In light of that fact, it is unnecessary to determine whether there is any evidence to support the conclusion that the applicant was denied a chance to demonstrate his genuine faith.  In brief, his own evidence put that issue to rest.  The second ground is rejected. 

4. The third ground is that the Tribunal failed to consider the applicant’s explanation and “bias in my history”.  It says that the Tribunal’s account for doubt about his credibility was unacceptable, so made him stressed.  The only possible complaint that might give rise to jurisdictional error in this ground is that of bias, however, it was neither clearly raised nor clearly established, as such a serious claim must be.  There is nothing before the Court to support the contention either that there was actual bias or that there may be a reasonable apprehension of bias.  The third ground is rejected. 

5. The fourth ground is an assertion which might, if accepted, support a claim to be a refugee.  However, such an assertion is beyond the proper scope of judicial review and so is rejected. 

6. The fifth ground is that the applicant was so pessimistic about the Tribunal’s judgment about his integrity and credibility that he does not accept the assessment as set out in the Tribunal’s reasons.  This ground simply cavils with the merits of the Tribunal’s decision and provides no basis for the relief sought.  The fifth ground is rejected. 

7. The sixth ground is that the applicant does not think that the Tribunal gave him a good understanding as it failed to weigh his commitment to his faith and ignored the oral evidence provided at the hearing.  However, the Tribunal did no such thing.  I repeat that it was the applicant’s own evidence that he did not have any particular faith in Falun Gong.  That evidence at least was accepted by the Tribunal. Its inconsistency with his other evidence concerning the Falun Gong faith was one of the bases for its rejection of the applicant’s credibility.  That was a rational basis for the Tribunal’s conclusions.  For those reasons, the sixth ground is rejected. 

8. The remaining paragraphs, numbered 1 through 5, are like ground 4, simply an assertion that the applicant is a refugee.  The determination of that question is one that has been left by the Migration Act 1958 (Cth) (Act) to the delegate, and on review, the Tribunal.  It is those decision-makers that must be satisfied that the applicant is a refugee in order for a decision to be made that a visa be granted.  The Court has no such power and for that reason those paragraphs are rejected.

Conclusion

1. I can see no jurisdictional error in the Tribunal’s decision.  The application must be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     3 October 2017