BXD17 v Minister for Immigration

[2017] FCCA 2965

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXD17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2965

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – the Tribunal made dispositive findings in respect of the applicant’s claims – there is no integer of the applicant’s claims in respect of which the Tribunal failed to make a finding – no jurisdictional error identified – application dismissed.

PRACTICE AND PROCEDURE – Application in a case for an adjournment – adjournment not warranted in the interests of the administration of justice – the applicant was able to meaningfully participate in the hearing before this Court – application in a case dismissed.

Legislation:

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

Applicant: BXD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1349 of 2017

Judgment of: Judge Street

Hearing date: 30 November 2017

Date of Last Submission: 30 November 2017

Delivered at: Sydney

Delivered on: 30 November 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Zinn
Mills Oakley Lawyers

ORDERS

1. The application in a case is dismissed.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1349 of 2017

BXD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 5 April 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant is a citizen of China and travelled to Australia on 16 January 2014 on a Visitor Subclass FA 600 visa that was valid until 5 June 2014. The applicant departed Australia on 19 January 2014 returning to China, and then arrived in Australia again as the holder of that visa on 5 March 2014. It was not until 3 June 2014 that the applicant applied for protection.

3. The applicant claimed to fear harm by reason of her religious beliefs as a Christian and by reason of her attendance of Christian activities in China and in Australia, as well as by reason of fears in respect of alleged domestic violence in the break-up of her marriage. The delegate found the applicant was not a credible witness and found that the applicant failed to meet the criteria under the Act. On 27 May 2015 refused the applicant’s application for a protection visa.

The Tribunal’s decision

1. The applicant applied for review on 23 June 2015. The applicant was invited to attend a hearing by the Tribunal on 23 June 2015 and the applicant failed to appear. The applicant sent an email attaching a medical certificate seeking a further hearing date. It was not until 13 December 2016 that a further hearing was rescheduled, pursuant to a letter inviting the applicant to appear on 4 January 2017. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal made reference to the applicant’s claims and evidence, as well as summarising the applicant’s migration/travel history, including that she had travelled to Malaysia and Singapore in May of 2013, and thereafter she had travelled to Australia, and returned to China on 19 January 2014 before returning back to Australia on 5 March 2014. The Tribunal made reference to the applicant not wanting to return to China because the Chinese Communist Party (“CCP”) does not agree with family churches.

3. The Tribunal summarised what occurred at the hearing and the Tribunal explored the applicant’s claims as well as the country information with the applicant. On the face of the Tribunal’s reasons, the Tribunal discussed with the applicant during the hearing, credibility issues in relation to her claims as to Christianity and the alleged incidents involving her husband. The Tribunal summarised further country information. Notwithstanding the vague nature of the applicant’s knowledge of Christianity, the Tribunal was prepared to give the applicant the benefit of the doubt and found that she practised Christianity in China.

4. The applicant alleged that she was detained as a result of her religious activities. The Tribunal made reference to the applicant’s first travel to Australia in January 2014, when she did not apply for protection. It was in those circumstances that the Tribunal did not accept her explanation that the applicant could not lodge her protection visa application because a tour guide had her passport.

5. The Tribunal took into account the applicant’s claims made during the hearing that she had memory problems. The Tribunal recorded that it offered to adjourn the hearing and the applicant declined. The Tribunal discussed with the applicant its concerns relating to her credibility and gave the applicant a significant period of time to provide further material relating to her health. The applicant subsequently provided a letter from a psychologist. The Tribunal decided to place little weight on the psychologist’s letter, as the applicant had only visited the psychologist once. The Tribunal found notwithstanding the applicant’s alleged memory problems and alleged brain-functioning problems, that she was able to give evidence and present arguments throughout the hearing.

6. The Tribunal found the applicant’s lack of clarity about the Christian activities troubling. The Tribunal was not satisfied the applicant was arrested, detained and harmed in 2013. The Tribunal did not accept that she was forced to sign an undertaking in which she promised not to attend a family church. The Tribunal did not accept the applicant stopped attending the family church as a result of her detention in 2013. The Tribunal did not accept that the applicant was abused and considered crazy and her children were teased at school following her release from detention. The Tribunal was prepared to accept that the applicant attended church in Australia.

7. The Tribunal made reference to country information and found that the applicant would not act in a matter which would disturb public order. The Tribunal found the applicant would not proselytise or distribute unapproved material in public. Taking into account the country information, the Tribunal was not satisfied the applicant has a well-founded fear of persecution on account of her religion upon return to China. The Tribunal did not accept the applicant would be harmed for practising her religion. The Tribunal was not satisfied the applicant would be unable to attend and to hold small church gatherings in her own and other private homes.

8. The Tribunal turned to the applicant’s claims in relation to her husband. The Tribunal was prepared to accept that the applicant was separated from her husband and that he had an extramarital affair. The Tribunal identified that the applicant did not raise any mention of the alleged domestic violence throughout the protection visa process or during the hearing and that the applicant did not make any claim in relation to domestic violence in her personal statement or her protection visa application. The Tribunal did not accept the applicant’s explanation for not mentioning the claim earlier. The Tribunal was not satisfied the applicant was a victim of domestic violence at the hands of her husband. The Tribunal was not satisfied the applicant’s husband threatened her. The Tribunal did not accept the applicant’s explanation for not having kept a record of these claimed threats. The Tribunal was not satisfied the applicant’s husband would kill the applicant because she divorced him. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution on account of her husband upon her return to China.

9. The Tribunal made reference to the applicant fearing harm from the CCP and her family on account of her husband’s affair. The Tribunal did not accept that the applicant’s husband’s extramarital affair and her family’s opposition to divorce constituted serious harm as defined in s 91R(1) of the Act. The Tribunal was not satisfied that the applicant faces a well-founded fear of persecution on account of this claim.

10. The Tribunal, having considered all of the claims, individually and cumulatively, found there is no real chance that the applicant would suffer serious harm on the grounds of her religion or on any other ground if returned to China now or in the reasonably foreseeable future. The Tribunal was not satisfied there are 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 she will suffer significant harm. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The applicant commenced proceedings in this Court for relief on 3 May 2017. On 10 August 2017, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed in relation to the applicant’s substantive proceedings.

Adjournment application

1. On 28 November 2017, the applicant filed an interlocutory application in a case seeking an adjournment. The applicant filed in support of that an affidavit in which the applicant claimed that she was suffering mental problems and could not attend the hearing and wanted her case adjourned to another time. The affidavit annexed a report from Mei Tze Ling, a registered psychologist. The psychologist identified having seen the applicant for the first time on 11 January 2017, as a result of a referral from a GP, and that she had presented on six occasions. The psychologist said that the applicant was suffering from generalised anxiety and panic attacks, depression, and post-traumatic stress disorder due to stressors of her religious persecution in China, unresolved issues about domestic violence from her marriage and the uncertainty of whether she could remain in Australia. Nothing in the report of the psychologist identified any basis upon which the applicant was unable to attend a hearing before the Court. No medical evidence was put on in relation to any inability by the applicant to attend Court.

2. At the commencement of the hearing, the Court heard the application for an adjournment and invited the applicant to put submissions as to why the Court should grant an adjournment. The applicant asserted that her brain stops working and that she did not want to be sent back and that she has health issues and really wants to stay in Australia. Nothing said by the applicant identified any utility in granting an adjournment.

3. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. Having heard the applicant put submissions subsequently, it is apparent that the applicant was able to meaningfully participate in the hearing before this Court.

Explanation of the nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

The applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that she could not understand why the Tribunal had not believed her. The applicant submitted that it was impossible to obtain evidence that because she was a Christian and that although she could produce false evidence she did not do so.

2. The applicant queried why it was that the Tribunal was not satisfied that she would be persecuted. The applicant maintained that she had been subjected to domestic violence and that her daughter had taken steps to assist her to divorce the husband, as a result of which her ex-husband had hit the daughter and the applicant submitted that no daughter would want her parents to get divorced. The applicant maintained that she could have produced false evidence but she did not do that because of her belief in God. The applicant twice put did she really have to die in order to be believed. The applicant also maintained that she had health issues. The Court told the applicant that the proposition that she had to die was a silly proposition and explained that this Court did not have power to decide the matter on compassionate grounds. The Court explained that it could not make fresh findings of fact in relation to the applicant’s claims and that it could not revisit the merits of the applicant’s claims.

3. The Court raised with the applicant that she had come to Australia on a tour group. The applicant submitted that the tour group leader had taken her passport. That was a matter in respect of which the Tribunal made adverse findings. The applicant maintained that her husband would kill her and she did not want to go back to China. The applicant maintained that she really had health issues and wanted treatment in Australia. The applicant maintained that she had great fear. The applicant indicated that she wanted to stay in Australia. Nothing said by the applicant from the bar table identified any jurisdictional error. The applicant’s submissions from the bar table invited this Court to engage in impermissible merits review. This Court does not have power to revisit the merits.

4. The grounds in the application are as follows:

   There exist jurisdictional errors.

   1. The Tribunal does not properly consider information in favour of my claims.

   The Tribunal does not accept that the applicant would be harmed as a family church member. However, based on country information, members of unregistered protestant church members may experience harassment, raids and destruction of church property, pressure to join or report to the government-sanctioned religious organisations, and occasional violence and criminal sanctions.

   Thus, the Tribunal considers I was not harm for practising religion without sound grounds.

   2. The law is wrongly applied because the Tribunal does not properly consider the harm I will suffer on the grounds of religion or domestic violence.

   3. The Delegate and the Tribunal does not accept my claims because they rely on immaterial information and make wrong decision.

Consideration

Ground 1

1. In relation to ground 1, on the face of the Tribunal’s reasons, the Tribunal properly identified the applicant’s claims and made dispositive findings in respect of those claims that were open on the material before the Tribunal for the reasons given by the Tribunal. The adverse credibility findings cannot be said to lack an evident and intelligible justification, and the applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. Ground 1 in substance invites this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Tribunal correctly identified the relevant law and considered both the applicant’s claims in respect of fear of harm based on her religion and in respect of domestic violence. There is no integer of the applicant’s claims in respect of which the Tribunal failed to make a finding. The adverse findings cannot be said to be unreasonable. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the disagreement with the rejection of the applicant’s claims does not identify any relevant error. There is no immaterial information identified that could be said to give rise to any error by the Tribunal. The adverse findings by the Tribunal were not trivial or immaterial or insignificant matters. The applicant’s migration history which the Tribunal took into account, was an obvious, relevant and reasonable matter to take into account in the adverse credibility findings. Ground 3 in substance, invites this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 3.

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

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 January 2018