CBT15 and Anor v Minister for Immigration and Anor (No.2)

[2019] FCCA 1621

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBT15 & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 1621

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA) visas – whether the applicants had a real and meaningful hearing before the Tribunal – whether the Tribunal complied with the obligations of procedural fairness – whether the Tribunal complied with its statutory obligations – invitation to this Court to engage in merits review – no jurisdictional error made out – application dismissed.

Legislation:

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

First Applicant: CBT15

Second Applicant: CBU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2765 of 2015

Judgment of: Judge Street

Hearing date: 12 June 2019

Date of Last Submission: 12 June 2019

Delivered at: Sydney

Delivered on: 12 June 2019

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondents: Ms J Noakesmith
DLA Piper

ORDERS

1. Orders 1, 2 and 3 made earlier today are set aside.

2. The application is dismissed.

3. The applicants pay the first respondent’s costs fixed in the amount of $4,000.00.

DATE OF ORDER: 12 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2765 of 2015

CBT15

First Applicant

CBU15

Second 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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 September 2015 affirming a decision of the delegate not to grant the applicants Protection (Class XA) visas.

2. The applicants are husband and wife and the husband, the second applicant, was included in the wife’s application as a member of the family unit in her application for a protection visa. The applicants were found to be citizens of China. On 4 November 2013, the first applicant and the second applicant applied for a Tourist Stream (Offshore) (FA 600 visa) which was granted on 6 December 2013. The applicants arrived in Australia on 4 January 2014. On 31 March 2014, the applicants lodged an application for protection visas.

3. The first applicant claimed to fear harm in China on the basis of their Christian faith and arising from events involving her parents having been arrested for attending an underground church in 2004, the first applicant attending a church gathering in 2010, and being baptised on 1 July 2010. The applicants also claim to fear getting arrested as in May 2012 the first applicant alleged she was arrested and warned she would be sent to jail. The first applicant also claimed to fear harm by reason of attending a house church gathering on 6 February 2013 and she was taken to a police station and detained for 15 days, beaten and tortured. The first applicant alleges her sister has told her the police have been searching for her since she failed to report to the police. The first applicant fears she will be persecuted by the Chinese government upon return to China on account of her religious profile.

4. On 11 December 2014, the delegate found the applicants failed to meet the criteria for the grant of protection visas.

5. The applicants applied for review on 8 January 2015. By letter dated 21 July 2015, the applicants were invited to attend a hearing on 3 September 2015. The applicants appeared on that date to give evidence and present arguments.

6. In the course of the hearing the Tribunal noted that the first applicant presented as tearful and anxious and the Tribunal enquired as to whether she was on medication, and she informed the Tribunal that she was not. The Tribunal granted a 15-minute adjournment following which the Tribunal recorded that the first applicant appeared less anxious and tearful. The Tribunal identified being satisfied, having considered the whole of the evidence, that the first applicant’s anxiety and tears did not impact on her ability to give evidence or to put her case in full before the Tribunal. The Tribunal was satisfied that the applicant’s presentation in the course of the hearing is not supportive evidence of the claimed events. The Tribunal acknowledged the first applicant’s sadness, but found that it was unrelated to the claimed events.

7. The Tribunal identified having considered the first applicant’s responses carefully and was satisfied the first applicant’s evidence was vague, lacking in significant details and was inconsistent with her earlier claims and responses, raising serious doubts about her claims and general credibility. The Tribunal did not accept that the first applicant is a Christian, or that any member of her family was or is a Christian family, practices Christianity in China, or that her family was persecuted or monitored for their religious beliefs or activities, or that her father was detained or ill-treated as claimed, or that she was involved in Christian related activities in China, or that she or her husband was a Christian in China. The Tribunal did not accept that the first applicant attended any Christian related gatherings, or that she was involved in any gathering related activities in China.

8. The Tribunal found the first applicant’s evidence in relation to her claimed arrest and detention was inconsistent in a significant way with her earlier claims, raising serious doubts about those claims.

9. The Tribunal was satisfied that the fact that the first applicant departed China lawfully raises serious doubts about her claims and supports the Tribunal’s conclusion that the first applicant is not of any adverse interest to the Chinese authorities.

10. The Tribunal did not accept that the first applicant had been involved in any Christian related activities in Australia. The Tribunal was satisfied that the lack of Christian related activities in Australia provides further evidence of the Tribunal’s conclusion that the first applicant is not a Christian practicing in China.

11. The Tribunal was not satisfied there is a real chance or a real risk of harm in the nature of sterilisation occurring on the applicants’ return to China. The Tribunal was satisfied that the first applicant has not engaged in any religious activities in Australia which could or would have come to the attention of the Chinese authorities. The Tribunal was satisfied there is not a real chance or real risk of serious or significant harm occurring on this basis.

12. The Tribunal found the first applicant does not have a well-founded fear of persecution.

13. The Tribunal found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to China, there is a real risk the first applicant would suffer significant harm. The Tribunal found the first applicant failed to meet the criteria under s 36(2)(aa) of the Act.

14. As the applicants did not satisfy the criteria under ss 36(2)(a) or (aa) of the Act for a protection visa, the applicants were unable to satisfy the criteria under ss 36(2)(b) or 36(2)(c) of the Act and the Tribunal affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 12 October 2015. On 19 November 2015, a Registrar of the Court made orders giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicants the nature of the hearing and they confirmed that they understood the nature of the hearing as explained by the Court.

3. From the bar table the second applicant asserted that the wife’s situation at the hearing was such that she was unable to give evidence to the Tribunal. That submission was contrary to the Tribunal’s reasons which expressly record what occurred in relation to the first applicant being tearful and an adjournment being granted and the first applicant then being less tearful and anxious and the Tribunal being satisfied that the first applicant was able to meaningfully participate in the hearing.

4. On the face of the material before the Court, the applicants had a real and meaningful hearing before the Tribunal. The second applicant’s submission of problems of the wife not being taken into account at the time of the hearing is contrary to the Tribunal’s reasons and does not identify any relevant error by the Tribunal.

5. From the bar table the applicants also submitted that they had an agent who may have failed to provide documents to the Tribunal. There is no evidence before the Court to support the contentions advanced in that regard and there is nothing to suggest that there was any relevant fraud on the Tribunal practiced by an agent on behalf of the applicants of a kind that could give rise to jurisdictional error. Any oversight by the applicant’s agents in providing information does not give rise to a jurisdictional error. Nothing said by the applicants from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal unreasonably ignored that during the hearing, I was tearful and anxious. Although my sadness was unrelated to the claimed events, in consideration of the evidence as a whole, my anxiety and tears impacted on my ability to give evidence.

   2. The Tribunal should have considered the communication issues during the hearing and the prior interview with the delegate. I did not understand the question the interviewer from the Department had asked, as well as the tribunal had asked. This caused the evidence in relation to my claimed arrest and detention was inconsistent in a significant way with my earlier claims. It also caused my evidence was vague, lacking in significant details and was inconsistent with my earlier claims and responses, raising serious doubts about my claims and general credibility.

   3. It is a fact that in China a number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China's major airports have a centralised system with name matching alert capabilities. But this system does not always work in an efficient and effective way. Otherwise, there is no one who is of adverse interest to the Chinese authorities could flee from China. The fact I departed China lawfully should not raises serious doubts about my claims.

   4. I am an underground Christian and has been adversely treated by Chinese authorities. Thus, my claims gave rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that I would suffer significant harm in the form of torture and punishment. Therefore I satisfy the requirements of s.36 (2)(aa).

Ground 1

1. In relation to ground 1, this raises the same issue as being referred to earlier in respect of the first applicant being tearful and anxious. It is apparent that the Tribunal took into account the same and granted a short adjournment as a result of which it is apparent that the Tribunal was satisfied the first applicant was able to meaningfully participate in the hearing. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, the Tribunal’s reasons support the first applicant having no difficulties in the conduct of the hearing after the adjournment. No evidence has been adduced to support any assertion of problems with the interpreter whether before the Department or before the Tribunal.

2. On the face of the material before the Court, the applicants had a real and meaningful hearing and the applicants’ disagreement with the adverse credibility findings do not identify any relevant jurisdictional error. The adverse credibility findings were open for the reasons given by the Tribunal. No jurisdictional error arises by reason of ground 2.

Ground 3

1. In relation to ground 3, the first applicant’s disagreement as to her ability to depart China lawfully with the Tribunal’s reasoning in that regard does not identify any relevant error. It was open to the Tribunal to take into account the applicant’s ability to depart lawfully in determining whether the applicant was of any interest to the authorities in respect of her alleged claims.

2. Ground 3 is, in substance, an invitation to this Court to engage in merits review. This Court does not have power to review the merits. Nothing in ground 3 makes out any jurisdictional error.

Ground 4

1. Ground 4 is, in substance, a repetition of the applicant’s claims and does not identify any relevant error by the Tribunal. 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 its obligations of procedural fairness in the conduct of the review. The Tribunal correctly identified the relevant law in relation to the Refugees Convention and in relation to complementary protection and made adverse findings dispositive of the applicant’s claims. No jurisdictional error is made out by ground 4.

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

Date: 18 July 2019