BZAEI v Minister for Immigration and Border Protection

[2013] FCCA 2257

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAEI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2013] FCCA 2257

Catchwords:
MIGRATION – Protection visa – tribunal found applicant’s claims not credible – no jurisdictional error on the part of the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: BZAEI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 467 of 2013

Judgment of: Judge Jarrett

Hearing date: 27 November 2013

Date of Last Submission: 27 November 2013

Delivered at: Brisbane

Delivered on: 23 December 2013

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Mr Alderton

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

1. The application filed on 6 June, 2013 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,647.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 467 of 2013

BZAEI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of a refugee review tribunal made on 9 May, 2013 which affirmed a decision of the first respondent’s delegate dated 8 May, 2012 to refuse to grant a Protection (Class XA) visa to the applicant.

2. The application does not articulate any proper grounds for review.    Despite being invited to do so, the applicant filed no amended application that articulated any recognisable grounds.  He did not advance his case by oral submissions of any substance at the hearing before me.

3. By the application filed on 6 June 2013, the applicant specifies the following grounds of review:

   1. In Paragraph 17(d), Department of Immigration and Citizenship didn’t have any specific format about how to write a statement.  RRT cannot assert that I made up my new claim.  I afraid to go back.

2.  In Paragraph 18, RRT doubted my credibility as I can not provide any supporting documents regarding my father.  It is not fair.  I am a Christian, I do not lie after sworn.

1. For the reasons expressed below, the application must be dismissed.

2. The material contained in the Court Book demonstrates that:

   a)the applicant is a citizen of the People’s Republic of China, who arrived in Australia on a student visa on 13 April, 2011;

   b)on 16 December, 2011, he applied to the Department of Immigration and Border Protection (as it is now known) for a protection visa;

   c)the applicant appointed a migration agent to assist him in connection with his visa application;

   d)the applicant set out his written claims to fear harm in a three page, typed statement that accompanied his visa application;

   e)the applicant claimed to fear persecution from the Chinese authorities because of his and his family’s Christian faith.

3. In his statement in support of his application before the first respondent’s delegate, the applicant claimed that on 4 June, 2011 he received a call from an unknown person who claimed to be his mother’s friend in China.  He was informed that his father had been arrested on 3 May, 2011 detained for one month and then sentenced to jail for two years.  He was told that his father had been sacked from his job and the Communist Party because he attended “Shouter” church gatherings, spread religious activity in a government office, encouraged people to oppose the Government and held illegal gatherings at home.  He claimed further that his family home was searched regularly by the police and that his mother was also sacked from her job and was monitored by the authorities.  The applicant claimed that he was considered by the Chinese authorities to be “black hand” and to have conducted illegal activities from overseas.  He claimed he was unable to return to China for these reasons.

4. On 8 May, 2012 the delegate refused the applicant’s application.  In summary, the delegate found that the applicant had not been baptised, country information indicated that he could attend a registered church in China, there was no credible basis to accept the claim that because the applicant was in Australia he was of adverse interest to the Chinese authorities and the applicant’s almost 8 month delay in applying for protection after arriving in Australia undermined his claimed subjective fear of harm.  Accordingly, the delegate was not satisfied that the applicant’s fear of persecution was well-founded or that there were substantial grounds for believing that there was a real risk that he would suffer significant harm. 

5. The applicant applied for a review of the delegate’s decision by a refugee review tribunal. 

6. In reasons for decision, the tribunal recorded that the applicant claimed that:

   a)his grandmother was a committed Christian, “evangelised her daughter-in-law, the applicant’s mother,” and held weekly church gatherings in the family home;

   b)the applicant witnessed those meetings;

   c)later in about 2008 or 2009 the applicant’s mother and grandmother “evangelised the applicant’s father”;

   d)the applicant was not baptised;

   e)the applicant’s father is a member of the Chinese Communist Party and  was “an official in Commercial Bureau”.  His father was dissatisfied with his employment and some of the practices he was required to carry out;

   f)the applicant’s father became disillusioned and wanted the applicant to leave China;

   g)after arriving in Australia to study, the applicant attended church and studied the Bible. 

7. The tribunal could not be satisfied on the material contained within the application alone that it could make a favourable decision on the applicant’s application and so he was invited to attend a hearing to give evidence and present arguments in support of his application.  That hearing took place on two days.  The first day (7 August, 2012) came to an end when the tribunal member was dissatisfied with the standard of interpreting that was taking place.  The hearing resumed on the second day (13 August, 2012) with more satisfactory interpretation.

8. The tribunal had regard to the claims made by the applicant in his statement prepared for his original protection visa application and as expanded upon by him in the hearings.  In addition to those grounds, the applicant claimed for the first time at the tribunal hearings that he had moved from Sydney to Brisbane because he feared the Chinese police would arrest him in Sydney.  When asked to explain the omission from the claims he had earlier made in support of his application, the applicant simply responded that he ‘‘forgot” and no one had asked him about it.

9. The tribunal affirmed the decision under review.  The tribunal found that the applicant was not a credible witness and had “fabricated his claims” for protection.  The tribunal identified internal inconsistencies in the applicant’s evidence in his written statement and his oral evidence at the hearing.  It considered that there were “substantial and material inconsistencies” and “variations” between his claims and oral evidence and that his responses to questions were “vague” and “evasive”.  The tribunal gave examples of the inconsistencies that were of concern to it.

10. The tribunal did not accept the applicant’s explanations for the identified inconsistencies, considering them to be “vague”, “evasive” and “unconvincing”.  It rejected his claims regarding his and his family’s Christian faith.  It found that he did not come from a Christian family and had fabricated his claims so as to remain in Australia.

11. The tribunal also found that the applicant’s “significant delay” in applying for a protection visa was “not consistent” with his claimed fear of harm and indicated that he did not have a “genuine fear of harm”.  It did not accept that the applicant had provided a credible explanation for the delay and found that the delay further supported its findings that he had fabricated his claims for protection.

12. The tribunal did not accept that the applicant had a commitment to Christianity or that he had attended Church in China or in Australia.  The tribunal did not accept that the applicant would attend Christian activities on his return to China.

13. The tribunal concluded that the applicant had faced no serious harm in the past or would do so in the future.  It concluded that the applicant did not face a real chance of persecution for a Convention reason in China, now or in the reasonably foreseeable future.

14. The tribunal considered the complementary protection provisions of the Migration Act 1958 (s.36(2)(aa)). The tribunal was not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if he was removed from Australia to China. The tribunal relied upon the reasons that it had given concerning the applicant’s claims to fear persecution for a Convention reason to support its approach.

15. As the first respondent submits:

    a)the tribunal’s findings of fact, including its assessment of the applicant’s credibility and the credibility of his claims, were open to it on the evidence before it;

    b)the tribunal gave reasons for rejecting the claims made by the applicant and for rejecting him as a credible witness;

    c)the tribunal was not obliged to uncritically accept any and all allegations made by an applicant;

    d)the weight to be given to the applicant’s claims and evidence was a matter for the tribunal to assess as part of its fact-finding function; and

    e)it is well-settled that credibility findings are a matter for the tribunal par excellence.

16. The applicant’s first ground of review refers to paragraph 17(d) of the tribunal’s reasons for decision.  That paragraph is in the following terms:

    At the hearing, the applicant added a new claim that he moved from Sydney to Brisbane as he feared the Chinese police would arrest him.  When asked about that fear, he then said he was not sure it could happen, but his fear would be lowered my moving to Brisbane because it would be more difficult for the Chinese police to find him.  When asked why he did not mention that fear in his written statement, the applicant was evasive and then he said he forgot.  No one asked him before about it.  His mind was a mess at the hearing.  The Tribunal noted that did not explain why he did not mention this fear in his written statement.  It did not consider there was any objective basis to such a fear.  The applicant replied that he did not know what to say, that he did not lie.  The Tribunal is not persuaded by his explanation.  It considers the applicant made up the claim during the hearing and on questioning from the Tribunal then sought to change his evidence then saying he was not sure if the Chinese police would do anything.

17. The first ground of review argues that it was not open to the tribunal to rely on the fact that he “made up my new claim” in circumstances where the Department did not have a specific format as to how he should write his statement.  However, I confess to not understanding this particular claim.  The applicant knew that he was to set out his claims for the grant of the visa.  The claims needed to take no particular form, as long as they were made relatively clearly.

18. The first respondent argues that in substance, this ground goes no further than to impermissibly invite the Court to review the merits of the tribunal’s decision.  I agree.  In any event, it was not the only matter relied upon by the tribunal to reach the adverse findings that it did against the applicant.  In my view, the first ground cannot succeed.

19. The second matter relied upon by the applicant is an assertion that it was not fair that the tribunal placed weight on the applicant’s failure to provide any supporting documents in support of his claims.  He refers particularly to paragraph 18 of the tribunal’s reasons for decision.  That paragraph is as follows:

    The Tribunal considers the applicant’s explanations were vague and evasive or unconvincing, unsatisfactory attempts to change his evidence once inconsistencies in his evidence were put to him.  The Tribunal finds the applicant does not come from a Christian family.  It does not accept his grandmother was a long-term Christian who held weekly church gatherings at home.  It does not accept his grandmother evangelised his mother, nor that his grandmother and mother evangelised his father.  Although mindful the applicant is not required to do so, the Tribunal notes the applicant provided no supporting evidence of his father’s arrest, charges or conviction.  The Tribunal rejects that his father spread Christianity amongst his work colleagues and the Tribunal does not accept that his father has been arrested, charged and jailed for any offences.  It follows then too that the Tribunal rejects that either of the applicant’s parents have lost their job or that his father has lost membership of the communist party.  It also follows that the Tribunal does not accept the applicant’s grandmother is in hiding.  The Tribunal rejects that the applicant is of interest to the Chinese authorities as an illegal overseas liaison or black hand or for any other reason.  The Tribunal rejects his claim he stayed at home after receiving the telephone call in June 2011 or relocated to Brisbane out of fear of arrest by the Chinese police.  The Tribunal considers the applicant has fabricated these claims as a means to remain in Australia.

20. I accept the first respondent’s submission that this was not a case where the tribunal impermissibly imposed a burden of proof upon the applicant.  As set out above, the tribunal correctly noted that the applicant was not required to provide corroborative evidence to substantiate his claims but considered that the absence of evidence was relevant in the context where it had identified a number of significant concerns about the credibility of his claims and evidence.  I accept the first respondent’s submission that the failure of the applicant to provide any documentary evidence simply meant that there was nothing before the tribunal to overcome or alleviate these concerns. 

21. In my view, this ground of review cannot succeed.

Conclusion

1. The applicant has not made out the two grounds of review relied upon by him.  Moreover, having considered the tribunal’s reasons for decision, I cannot discern any error on the part of the tribunal that would attract the jurisdiction of this Court to grant relief in respect of the tribunal’s decision.

2. The applicant has failed to demonstrate that the tribunal’s decision is affected by jurisdictional error.  The application must be dismissed with costs. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered 23 December 2013.

Date:  23 December 2013