BZO15 v Minister for Immigration

[2015] FCCA 3316

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZO15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3316

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – Show Cause hearing – whether applicant has an arguable case for jurisdictional error – no arguable case of jurisdictional error made out – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

Legislation:

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

Federal Circuit Court Rules 2001, r.44.12

SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175

Applicant: BZO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2664 of 2015

Judgment of: Judge Street

Hearing date: 11 December 2015

Date of Last Submission: 11 December 2015

Delivered at: Sydney

Delivered on: 11 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms N Johnson
Mills Oakley

ORDERS

1. The proceedings are dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2664 of 2015

BZO15

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 (Cth) with respect of a decision of the Tribunal made on 31 August 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 his claims were assessed on that basis.

2. The applicant obtained a passport from China, issued on 28 December 2013, and arrived in Australia on 17 February 2014 on a subclass 600 visa and made an application for protection on 7 March 2014. 

3. The applicant claims to fear harm in China because his land had been expropriated and he received no compensation because he refused to sign a demolition agreement.  The applicant claimed to have an imputed political opinion because he was opposed to the government's policies on land expropriation and the payment of inadequate compensation.  The applicant claims that his home was demolished to allow construction of a chemical plant.

4. When the applicant realised that the compensation rate offered to him was only half the value of the property, he complained to the general manager of the development company.  The applicant says that he heard through one of the general manager's employees that the general manager would hire underground thugs to teach the applicant a lesson and that these thugs would eliminate him.  It was in these circumstances that the applicant said rather than sign the demolition agreement, he decided to flee China.

5. The applicant failed to attend the interview before the delegate, and it was in those circumstances the delegate was unable to evaluate the credibility of the applicant and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations and was not satisfied that the criteria under s.36(2)(a) or s.36(2)(aa) was made out.

6. The applicant sought a review before the Tribunal by letter dated 12 May 2015.  The applicant was invited to attend a hearing to be held on 6 August 2015, to give evidence and present arguments.  The applicant appeared on that date to give evidence and present arguments and the hearing was conducted with the assistance of an interpreter.

7. On 5 November 2015, a Registrar of the Court made orders fixing the matter for hearing today as a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The Registrar also made orders providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

8. At the commencement of the hearing today, the Court explained the nature of the hearing and the applicant confirmed he understood what the Court had explained. 

9. The grounds in the applicant's application are as follows:

   My local authority decided to demolish my property for building a chemical plant. But the compensation rate to be offered to me was only half the cost of my home that was to be forfeited.

   I didn't sign the DEMOLITION AGREEMENT. They had even hired the underworld thugs to severely bet people and caused them permanently disabled who refused signing the DEMOLITION AGREEMENT in our country before. My wife and me decided to flee our home place instead of signing this agreement.

   The Tribunal member failed to take all my claims into account according to S91R of Migration Act 1958 because of the Tribunal had bias against me.

   The Tribunal member made jurisdictional error while making his decision

10. This is a case where the Tribunal made adverse credit findings in relation to the applicant.  The Tribunal found overall that the applicant was not a credible witness.  Having considered the applicant's claims and evidence, the Tribunal did not accept that the applicant had a home in China that was expropriated as he claims, or that the home on that land had been demolished.  The Tribunal did not accept that the applicant was involved in discussions about the expropriation of his land and the payment of compensation, or that he was threatened as he claimed in relation to signing an agreement for the expropriation and payment of compensation.

11. Relevantly, the Tribunal found that the applicant had invented his claims to effect and strengthen his protection visa application and it was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under s.36(2)(a) and 36(2)(aa) was not made out.

12. It is clear that the Tribunal did not accept the applicant's claim relating to the demolition of his property and the assertion of compensation, or that he was threatened by thugs.  The first two paragraphs in the grounds of the application fail to identify any arguable jurisdictional error.  It is clear that the Tribunal considered the applicant's claims as identified, relevant in paras.12 to 13, to 14, 21 to 27, and paras.40 to 42.

13. I am satisfied the applicant was given a genuine hearing and it is clear from the Tribunal's reasons that at that hearing the credibility of the applicant was raised as a live issue.  No arguable jurisdictional error is identified by the first two paragraphs in the grounds of the application.

14. In relation to the third paragraph, it is clear that the Tribunal took into account all the applicant's claims and properly identified the principles to be applied in paras.4 to 8. I accept the first respondent's submission that, given the adverse credibility findings, this is not a case where the Tribunal needed to make any express reference to s.91R, and I am satisfied that the findings in this case are distinguishable from the decision in SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175.

15. The adverse findings made by the Tribunal were open on the evidence and cannot be said to lack in evident and intelligible justification.  Insofar as the third paragraph suggests an allegation of bias, that is a matter that must be clearly alleged and properly proved.  There is no basis upon which an allegation of bias could be proved in the present case.  The 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. The third paragraph of the grounds of the application fails to identify any arguable jurisdictional error.  The last paragraph of the grounds of the application is a generalised assertion of jurisdictional error and fails to identify any arguable ground in support of the allegation.  Nothing was said by the applicant to identify any arguable case of jurisdictional error.

17. The application fails to disclose an arguable case. I am satisfied that this is an appropriate matter to exercise the discretion under r.44.12 of the Federal Circuit Court Rules 2001 and that the proceedings should be dismissed for want of an arguable case.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 December 2015