BYC15 v Minister for Immigration

[2016] FCCA 1356

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1356

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection visa – whether the Tribunal unreasonably dismissed the authenticity of the applicant’s claims – whether the Tribunal failed to take relevant considerations into account – bias – no jurisdictional error identified – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R(3), 476

Applicant: BYC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2595 of 2015

Judgment of: Judge Street

Hearing date: 3 June 2016

Date of Last Submission: 3 June 2016

Delivered at: Sydney

Delivered on: 3 June 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms A Lucchese
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2595 of 2015

BYC15

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 in respect of a decision of the Tribunal made on 4 September 2015 affirming a decision of the delegate not to grant the applicant a protection visa.  The applicant was found to be a citizen of China and the claims were assessed against that country.  The applicant was issued a passport on 18 January 2013 in the Jiangsu province. The applicant applied for a Visitor visa on 5 August 2013, which was granted on 6 August 2013.

2. The applicant arrived in Australia on 10 August 2013.  The applicant applied for protection on 21 October 2013.  The delegate refused to grant the applicant a Protection (Class XA) visa on 1 July 2014.  On 22 July 2014 the applicant applied for review by the Refugee Review Tribunal.  By letter dated 4 May 2015, the Tribunal invited the applicant to attend a hearing on 9 June 2015.  The applicant appeared on that date to give evidence and present arguments.  In summary, the applicant claims to fear harm on the basis of her religion, being a Christian, and her practice of Christianity here in Australia and in China and the risk of being forced to have an abortion should she fall pregnant.

3. The applicant claims that in 1995 she was introduced to an underground church by her cousin and began attending church gatherings.  The applicant alleges that these gatherings occurred in different houses.  The applicant claims that other than approximately between 1997 and 2000 she had been practising Christianity since 1995 and continued to practice the same in Sydney.  The applicant claims that in 2012 the police dismissed a church meeting in which the applicant was in attendance.

4. The applicant said nobody was arrested, but the police simply ordered those involved not to gather again.  The applicant also claimed that in 1996 she was discovered by the police cleaning up at a house where a religious gathering had just taken place.  The applicant said as a result she claimed the police took her away and detained her in a bungalow for a week where they asked her to show remorse and promise not to repeat the offence.  The applicant also claimed that she was forced to undergo a late abortion as her pregnancy was in contravention of the Chinese family planning laws. 

5. The applicant asserted that if she returned to China she feared she would undergo another forced abortion should she fall pregnant.  The Tribunal identified the applicant’s claims and evidence in detail.  The Tribunal, however, made adverse credibility findings in relation to the applicant’s claims for detailed reasons that were open on the material before the Tribunal.  It was in those circumstances where the Tribunal had doubts about the credibility of the applicant’s claims that it gave no weight to the letter in support of the applicant’s claims about alleged activities in China.

6. The Tribunal was not satisfied that the applicant’s claims of involvement in the underground Christian church were credible.  The Tribunal was not satisfied that she did, in fact, join a church in her own village or in her husband’s village.  The Tribunal was not satisfied that the applicant was detected in any religious activity in 1996 or in 2012 or that she ever came to the adverse attention of the authorities in China for such a reason.  The Tribunal made reference to the applicant’s activities in Australia.

7. The Tribunal noted that it had found that it did not accept that the applicant was ever a member of the underground church in China and there was nothing to indicate that she ever worshipped as a Christian in any other setting there.  The Tribunal said that the circumstances of suddenness in which she embraced the church in Ashfield and having considered all the information before the Tribunal, it was not satisfied that her conduct in the beginning and continuing involvement has been engaged in otherwise than for the purpose of strengthening her claims to have a well-founded fear of persecution in China.

8. It was in those circumstances that the Tribunal disregarded that conduct in considering her claims as required under s.91R(3) of the Migration Act 1958.  The Tribunal expressed concerns about the applicant’s alleged forced abortion in 2000, but was, however, in the circumstances, prepared to accept that it occurred.  The Tribunal noted that on the information put to the applicant at the hearing there had been a change in China’s family planning laws, in that parents with a rural family registration hukou are permitted to have two children if their first child is female.

9. The applicant’s evidence at the hearing was that in her husband’s village she was on a rural hukou.  The Tribunal noted that as the applicant’s first child was a girl she would face no legal restriction if she wished to have a second child and would not be forced to have an abortion.  The Tribunal was not satisfied the applicant was involved in Christianity in China or that she ever suffered harm or came to adverse attention of the authorities for such a reason.  The Tribunal found that it did not accept there is a real chance she would suffer harm on account of any practice of Christianity.

10. It was in those circumstances the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason should she return to China now or in the reasonably foreseeable future. The Tribunal also found that it was not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk she would suffer harm which would amount to significant harm within s.36(2)(aa) of the Migration Act 1958. It was in those circumstances that the Tribunal found the applicant did not meet the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate.

11. On 5 November 2015 a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit in evidence and submissions.  No such documents were filed.  The application identifies the following grounds:

    1. I am scared to return back to China, because there really exists the persecution targeted towards the followers of the Christian in China. If I returned to China, I would certainly be monitored by the staff from the Chinese governmental department due to my believing in Christian. Even I could be arrested and detained without any freedom or human rights in China.

    2. I did not mention much about the second child I was compelled to abort was because I would be heartbroken when I thought about it. I tried to avoid that condition in the court.

    3. It was because that it was only the first time 1 was detected for joining underground church and been warned. The authority usually not be too strict at the first time they found ant followers of “evil cult".

    4. Although I participated activities at Ashfield, I have already been a believer of the Christian in China for years.

    5. AAT unreasonably suspected the authenticity of my claims just because of the absence of evidence.

    6. AAT failed to consider my actual living condition in China and the risk I return there.

    7. I hope the Federal Circuit Court of Australia could consider my situation hack to China and do justice for me.

12. At the beginning of the hearing the Court explained to the applicant that this was a final hearing to determine whether or not 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 by the Tribunal or a denial of procedural fairness to the applicant.

13. The Court explained that in summary this meant the Court was determining whether the decision was made lawfully or whether the decision was made fairly.  The Court explained that it would identify the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and hear submissions from the applicant in reply.  The applicant confirmed that she understood the nature of the hearing as explained by the Court. 

14. In relation to grounds 1 to 4, the solicitor for the first respondent submitted that in substance they invite an impermissible merits review. I accept that submission.  The solicitor for the first respondent also submitted that to the extent that grounds 1 to 4 seek to cavil with the adverse findings of the Tribunal, those adverse findings were open.  I accept that submission.  Nothing in grounds 1 to 4 identify any arguable jurisdictional error.  In relation to ground 5, it is clear that the Tribunal considered the applicant’s evidence and made adverse credit findings that were open to the Tribunal.  There is no substance in the proposition that the applicant’s claims were rejected just because of the absence of evidence.

15. The Tribunal provided detailed reasons in relation to the rejection of the applicant’s claims, including in particular, that she was able to leave China using a valid passport in her name.  To the extent that ground 5 is seeking to suggest that the Tribunal was affected by bias, that is an allegation that must be clearly alleged and properly proven. No such ground is proven. The making of adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

16. Nothing in ground 5 makes out any jurisdictional error.  In relation to ground 6, it is clear that the Tribunal took into account the applicant’s claims as to the treatment to which she had been exposed.  The Tribunal accepted part of the applicant’s history in relation to her alleged abortion.  The Tribunal dealt with each of the claims advanced by the applicant.  There was no separate claim articulated in respect of the applicant’s living conditions in China.  No such separate claim arose on the material before the Tribunal.

17. There is no jurisdictional error by the Tribunal in not dealing with a claim that was not advanced before it and was not open and arose on the material before the Tribunal.  Ground 6 fails to make out any jurisdictional error.  Ground 7 invites impermissible merits review and has not identified any jurisdictional error.  From the bar table the applicant alleged that the decision made by the Tribunal was unfair.  I am satisfied that the applicant had a genuine hearing and that the Court complied with its statutory obligations in relation to the conduct of that hearing.

18. Nothing said by the applicant identified any proper basis upon which the Court could find that the decision of the Tribunal was not made in accordance with the statutory provisions or that the applicant was the subject of any denial of procedural fairness.  The Tribunal referred to the fact that her evidence had not been accepted.  It was a proper matter for the Tribunal to determine whether to accept the applicant’s evidence.  As indicated, the adverse credit findings were open on the material before the Tribunal, including in particular, the fact that the applicant was able to obtain a valid passport in her own name to leave China.

19. The applicant maintained that she feared she would be persecuted because of her Christianity.  It was for the Tribunal to determine the applicant’s claims.  This Court does not have power to make fresh findings of fact in relation to the applicant’s claims.  Nothing said by the applicant from the bar table identified any jurisdictional error.  The application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 June 2016