BZAIN v Minister for Immigration

[2015] FCCA 2115

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAIN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2115

Catchwords:

MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error established – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: BZAIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1160 of 2014

Judgment of: Judge Vasta

Hearing date: 29 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Brisbane

Delivered on: 29 July 2015

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Application filed 22 December 2014 be dismissed.

2. That the Applicant pay the Respondent’s costs fixed in the amount of $5,800.

3. That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1160 of 2014

BZAIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 22 December 2014, the Applicant, BZAIN, makes application to this Court to review the decision of the then Refugee Review Tribunal, who was itself reviewing a decision of the delegate for the Minister for Immigration and Border Protection.

2. The Applicant, who is a citizen of China, arrived in Australia on 2 August 2013 as the holder of a tourist visa.  On 28 October 2013, the Applicant made an application for a protection visa.  On 7 March 2014, the delegate of the Minister refused to grant the Applicant the visa and on 3 April 2014, the Applicant made application for a review of that decision to the Refugee Review Tribunal.  The hearing of that matter was on 1 December 2014 and on 3 December 2014, the Refugee Review Tribunal affirmed the decision.  The Applicant then filed an application in this Court on 22 December 2014. 

3. In his application, there are two grounds that I will get to very soon.  The Applicant, on the evidence before me, is a person who was born on 15 September 1970.  He married in October of 1991.  He had 11 years of education, finishing high school in 1987.  He was a general worker in Tianjin City doing track maintenance between 1987 and 2002 and then worked in Korea between 2002 and 2010, returning to China sometime between 2010 and July 2013. 

4. He says that when he returned, in short compass, the village where he was living had a great quantity of arable land.  The local village government then illegally and forcibly appropriated that land for building a textile industrial park.  The compensation given to the village was inadequate and because of that there was unrest and an uprising of sorts.  There were petitions made to the local government and there was forcible destruction of buildings by the villagers. 

5. The Applicant says that he was elected as a village leader, only to have that result not recognised because of corrupt activity by persons within the village government.  After that, he was the subject of threats, including the semi-destruction of his house and two instances of unlawful detention, the second of which he was subject to torture. 

6. He says that, after being released from that unlawful detention, his family helped him to apply for a visa and he fled China to Australia in early August 2013.  He said that in October 2013, people from the public security bureau came to his parents’ house with a search warrant and took away a number of his personal effects.  He says that his wife was actually physically attacked as well and so that led him to make the application for a protection visa. 

7. As is obvious from such a tale, the credibility of the Applicant was paramount in assessing whether the Applicant met the criteria of Australia’s obligations under the Convention for the complementary protection afforded under the Migration Act 1958 (Cth). If the delegate to the Minister or the Refugee Review Tribunal accepted his story or was in a position where they could not say that this was an untrue tale, then it would seem that the criteria would be made out.

8. However, the Refugee Review Tribunal did not accept the Applicant as a witness of truth. 

9. In the decision, the Tribunal detailed many of the inconsistencies that the Applicant has given in their examination of his story. There were inconsistencies with how much money the government was to compensate the villagers for taking the land. There were inconsistencies as to the time that this occurred. There was an inconsistency in the description of the villagers being able to push down a brick wall with their bare hands.  When that was pointed out, there was an explanation that the brick walls had not been made with cement but simply with soil. There was an inconsistency in the punishment that the Applicant had said had happened to the villagers.  There was an inconsistency in the manner in which the elections were said to have occurred. There was an inconsistency in the manner of the threats of the cousin of the person Jun Lu and there were inconsistencies in the tale of what occurred when the Applicant was incarcerated.

10. The Tribunal had an overall impression that his version as to him facing persecution upon return to China could not be accepted

11. At paragraph 33, the Tribunal said:

    “The tribunal discussed its credibility concerns with the applicant throughout the hearing in a number of respects.  In summary the applicant’s evidence at hearing was evasive, vague, lacked details and was inconsistent with his written statement.  The tribunal asked the applicant numerous times about key aspects of his claims and to describe the events, but the applicant frequently did not answer the question and when pressed gave vague evidence or was inconsistent with his written statement.  When contradictions were pointed out, the applicant said he was nervous and he could not remember dates.  The Tribunal reassured the applicant it was not concerned with specific dates but what occurred.  The Tribunal also adjourned the hearing to allow the applicant to collect his thoughts.”

12. Further, at paragraph 35, the Tribunal said:

    “The Tribunal does not accept nervousness or attending a hearing for the first time explainses (sic) for the many discrepancies and vague account. The problems with the applicant’s evidence were extensive, and the tribunal considers the applicant’s claims are fabricated and he is not a witness of truth.”

13. At paragraph 36:

    “While the tribunal does not expect precise recall of details and events, the applicant’s evidence at hearing was inconsistent with his written statement in a number of respects.  His description of events at hearing was also vague and lacked details and the tribunal had to prompt the applicant frequently to provide details.  The applicant’s evidence lacked spontaneity and he had difficulty recalling most things, such that it suggested to the tribunal that the applicant was not recalling actual events that happened to him.”

14. In this matter, the Applicant has given two grounds of application.  The first is that:

    1. Since I was persecuted my anxiety and poor education level led to the limited ability to provide evidences, which totally conformed to reality.  RRT made use of their advantages beating about the bush continually and making meaningless logical trap in the hearing.  I could recall the specific events in order to provide evidences by questioning and answering specific.  RRT never questioned me specific or just questioned general questions, but RRT required me to provide details answers.  This ignored my own situation and was against the law.  According to the law, RRT should make full sense of my own situation and not require excessive evidences.

    2. Tribunal unfairly refused to offer me protection saying my case was not covered by the Convention.  The Tribunal made an acceptable judgment about my experience in China; neither did it reflect the truth in a logic way.  My case was not only a dispute regarding land value, but also I had different political opinion against the Chinese authority.” 

15. It is trite to say that an application before this Court can only succeed if it is shown that there was a jurisdictional error in the manner in which the Tribunal went about its function.  The Applicant, as far as ground one is concerned, says that the manner in which the Tribunal asked the questions of him was unfair.  In the hearing before me today, he said that he was questioned on the written statement and that the language barriers meant that the questions asked and the answers given were prone to be inconsistent. 

16. He explained that he was extremely nervous and that this was the first time that he had ever been before a Court or Tribunal.  Having said that, the Tribunal in its decision made specific reference to that aspect as I have detailed.  They also allowed the hearing to be adjourned so that the Applicant could gather his thoughts.  It cannot be said that their actions in the way in which they went about their functions was unfair.  Therefore, I cannot find that there is any substance in ground 1.

17. With regard to ground 2, that ground is really a ground seeking a merits review, which is not permissible unless it is a submission that the facts in this case were such that no reasonable decision-maker, could have come to that conclusion.  The test is not whether the decision-maker could come to that view on a reasonable view of the facts. That is often a mistake that is made in these Courts.  The real question is whether a decision-maker could have come to that view. 

18. To my mind, where the questions of credibility loomed large, it cannot be said that this conclusion was one that could not have been reached.  Therefore, I find that there is no substance in ground 2.

19. The Applicant also told the Court today that he was going to get more evidence from China but there has been a recent anti-corruption crackdown in China and lots of officials have been arrested, so he cannot procure any details or documents from China to back up any of his claims. 

20. As I have said, this is not a re-hearing, nor is it a hearing on the merits.  My role is quite plain, and that is to review the manner in which the Refugee Review Tribunal came to its decision and to see whether there has been any jurisdictional error found. 

21. On the evidence before me, I am of the view that there is no jurisdictional error.  Accordingly, I refuse the application. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:10 August 2015