CRS15 v Minister for Immigration

[2017] FCCA 609

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRS15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 609

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicant protection visa – whether Tribunal considered claim – whether it was reasonably open to the Tribunal to consider a particular matter in not accepting a claim – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2)(c)

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

SZMYU v Minister for Immigration and Border Protection [2017] FCCA 357
SZVCHv Minister for Immigration and Border Protection & Anor [2015] FCCA 2950

Applicant: CRS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3402 of 2015

Judgment of: Judge Manousaridis

Hearing date: 10 March 2017

Delivered at: Sydney

Delivered on: 31 March 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the First Respondent:

Ms G Doyle of

Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3402 of 2015

CRS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the People’s Republic of China, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (protection visa).

Migration History

1. The applicant arrived in Australia on 25 September 2007 and lodged a protection visa application on 4 January 2008. A delegate of the Minister refused that protection visa application, and on 10 December 2008, a differently constituted Tribunal affirmed the delegate’s decision.

2. A bridging visa that had been issued to the applicant ceased on 8 January 2009 and the applicant remained in Australia unlawfully. She was located and detained on 25 November 2013 for several days. On 26 November 2013 the applicant lodged a second protection visa application. That application was accepted as valid because of the Full Federal Court decision in SZGIZ v Minister for Immigration and Citizenship.[1] A delegate of the Minister refused to grant the visa on 18 July 2014, and the Tribunal affirmed the delegate’s decision on 1 December 2015.

   [1] [2013] FCAFC 71

Claims for Protection

1. In her application for a protection visa, the applicant claimed she was mistreated in China, feared harm at the hands of the villagers and authorities there, and feared she will be denied her right to access her farmland.[2] The applicant claimed authorities expropriated her farmland for the expansion of a highway in 2004 and, if she is returned to China, she will seek fair compensation and the return of the land for which she will be harmed and mistreated. The applicant further claimed she has an unpaid debt and that creditors “will harm us as well so as for their loan”.[3] The applicant claimed the authorities will not protect them because the “perpetrators” include the authorities.[4]

   [2] CB20

   [3] CB21

   [4] CB22

2. Before the Tribunal, the applicant further claimed that after her land was expropriated in July 2004, she went to the village committee and asked multiple times for compensation and the return of her land. The applicant also approached the town council, but that was pointless because the land had already been sold; and the applicant did not put any of her complaints or appeals in writing. The applicant did not attempt to pursue her claims after she left China for Australia in September 2008 because “it was useless”.[5] The applicant also said that in July 2005 the applicant and her then husband (husband) had bought another plot of land on which they re-built the same factory and that business continued to operate until 2008.[6] In that year the business was sealed because it was being used to produce illegal Christian material. The applicant claimed, however, that this reason was an excuse to punish the applicant and her husband for having pursued the land compensation claims.[7]

   [5] CB134, [25]

   [6] CB135, [27]

   [7] CB135, [27], [29]

3. Before the Tribunal the applicant also claimed she feared returning to China because she has unpaid debts. The applicant claimed that in around 2012 she and her husband had to raise around $80,000 to secure their son’s marriage to an Australian resident, and that around $20,000 of this amount was still owing.[8]

   [8] CB136, [32]

Tribunal’s Decision

1. Before it considered the applicant’s claims and evidence, the Tribunal  referred to the decision of the Full Federal Court in SZGIZ and its discussions with the applicant at the hearing confirming it would consider the applicant’s claims against the complementary protection criterion specified in s.36(2)(aa) and (c) of the Migration Act 1958 (Cth) (Act). The Tribunal referred to the decision in SZVCHv Minister for Immigration and Border Protection & Anor[9] and considered it the preferable and correct approach to assess the applicant’s claims against both the refugee criterion provided for in s.36(2)(a) of the Act, and the complementary protection criterion.

   [9] [2015] FCCA 2950. This decision was overturned on appeal - Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127.

2. The Tribunal also noted that the applicant, in her first protection visa application, claimed she feared harm in China because of her religion. At the hearing before the Tribunal on 12 November 2015, however, the applicant confirmed she does not fear harm in China because of her Christian religion. In any event, the Tribunal was not satisfied on the evidence before it that the applicant holds a subjective fear of serious or significant harm in China in connection with her religion or that there is any objective basis on which one could be satisfied the applicant faces a real chance of serious and or significant harm in China because of her religion.

3. The Tribunal accepted the applicant’s claim that in July 2004 Chinese officials and developers expropriated land the applicant and her husband leased and on which they had built a factory.[10] The Tribunal also accepted that: the applicant and her husband held a lease on the land that was due to expire in 2029, and that they lost money they invested into building and developing a factory on that land; that the applicant and her husband spent some nights between July 2004 and July 2005 in discomfort watching over their belongings from a shelter they built across the road from the land; that after July 2005 they moved their belongings to a new factory which has since closed;[11] and that the applicant made direct approaches to the village committee and town authorities in the months immediately surrounding the expropriation of the leased land in July 2004 in an attempt to seek compensation and the return of her land.[12] The Tribunal was not satisfied, however, of the truth of the applicant’s claim that she and her husband had their second factory sealed, or, if it was sealed, it was sealed for the reasons the applicant claimed, namely, on the excuse the business was being used to produce illegal Christian material which, in turn, was an excuse to punish the applicant and her husband for pursuing the land compensation claims.[13] The Tribunal did not accept that claim because the applicant said she did not fear persecution on the grounds of religion, and because in 2005 the applicant and her husband re-established their business on a plot of land opposite the village committee which they operated successfully for three years without any adverse interference from anyone.[14]

   [10] CB134, [22]

   [11] CB135, [28]

   [12] CB135, [29]

   [13] CB135-136, [29]

   [14] CB135-136, [29]

4. The Tribunal found the evidence and claims advanced by the applicant did not suggest the applicant’s capacity to subsist was ever threatened in China, and accepted the applicant and her husband continued to have a home in which to live and continued to work.[15] The Tribunal further found that, should the applicant return to China, she does not intend to pursue any claims for compensation or for the return of the leased land that had been expropriated in July 2004. That finding was based on the Tribunal’s findings that the applicant’s son successfully pursued a tertiary education in China, her husband continued to live in a particular village in China where the applicant claims to fear harm from the village committee, the applicant having given no evidence that any of her family members who remained in China after she departed in 2008 had pursued any land claims or were harmed in connection with them, and the applicant has not pursued any claim for compensation or the return of the land since around 2005, and definitely has not done so since she left China in 2008.[16] The Tribunal also was not satisfied the applicant has any profile relating to her past requests for compensation and or the return of the land which gives rise to any risk of harm to her in the reasonably foreseeable future.[17]

   [15] CB135, [28]

   [16] CB136, [30]

   [17] CB136, [31]

5. The Tribunal was also not satisfied the applicant faces a real chance of any harm or mistreatment in China in connection with unpaid debts, including serious or significant harm.[18] First, the debt was owed by the applicant and her husband, yet the applicant gave no evidence her husband or remaining family in China have been harmed in any way in connection with the debt.[19] Second, when asked by the Tribunal who has approached the applicant about repayment of the debt, the applicant said she was not very afraid of the debt and she can still make money and pay it back. The applicant said her real concern was she had a mental barrier about returning to China and felt anxious and stressed about going back there.[20] Third, the Tribunal found the applicant provided no convincing reasons why the applicant’s children in Australia or the applicant’s husband would not be able to assist the applicant repay the debt owing in China.[21]

   [18] CB137, [37]

   [19] CB136, [32]

   [20] CB136, [33]

   [21] CB137, [37]

Grounds of application

1. The application filed with this Court contains three grounds of application. In addition, the applicant, who is not legally represented, made a number of submissions at the hearing before me. I will refer to those submissions to the extent they do not appear to relate to the grounds set out in the application.

Ground 1

1. The first ground is:

   The Tribunal erred in arriving at a conclusion unsupported by evidence. In particular, the Tribunal at paragraph 26, does not accepts [sic] the applicant “has any intention, interest or desire to pursue these claims should she return to China” just because “the land has already been used to widen a road and cannot be returned”.

2. At the hearing before me, the applicant said she did not agree with the Tribunal’s conclusion at paragraph 26 of its reasons because there was no evidence to support the Tribunal’s conclusion.

3. In paragraph 26 of its decision, the Tribunal referred to the Tribunal’s having put to the applicant that, on her own evidence, she has not pursued any claim for compensation or the return of the leased land in relation to the expropriation of her land since at least 2008 and, most likely, since 2005 because, on the applicant’s own evidence, it was useless for reasons that included that part of the land had been used for widening a road, and the rest sold. The Tribunal also noted the applicant’s response which was that she wanted her investment money back and she would pursue the claims.[22]

   [22] CB134-135, [26]

4. As I have already noted, the Tribunal found the applicant has no intention of claiming compensation for the expropriated land, or the return of the land; and it did so because the applicant has pursued no claim since at least 2008 and, probably, since 2005, in circumstances where her husband and one child remained in China, and there was no evidence the applicant had been harmed or the applicant had any profile relating to her past requests for compensation which gives rise to any risk of harm to her in the reasonably foreseeable future.

5. In my opinion, there was an evidentiary basis on which it was reasonably open to the Tribunal to rely for concluding the applicant has no intention of pursuing a claim for compensation if she were to return to China. Ground 1, therefore, fails.

Ground 2

1. The second ground is:

   The Tribunal failed to consider an issue (or claim) that clearly arose on the information before the Tribunal. Particularly, the Tribunal failed to consider whether a denial of religious worship leading to the property confiscation was persecutory of the applicant. Furthermore, involuntary compromise of subsistence in China (paragraph 28) also was persecutory.

2. The ground, as stated in the application, claims the Tribunal failed to consider two claims. The first was “whether a denial of religious worship leading to the property confiscation was persecutory of the applicant”. As I have already noted, however, the Tribunal referred to the applicant’s claim that in 2008 the authorities sealed the business the applicant had re-established after her land was confiscated in July 2004; that the authorities sealed the business to punish the applicant and her husband for having pursued compensation claims; but the authorities gave as an excuse for sealing the business the applicant’s and her husband’s using the business to produce illegal Christian material. The Tribunal considered that claim, but did not accept it for reasons that included the applicant and her husband having re-established across from the village committee the business that was affected by the land expropriation of July 2004, and having conducted a business there for three years without any interference from anyone.[23]

   [23] CB135-136, [29]

3. The second claim the Tribunal is said not to have considered is “involuntary compromise of subsistence in China (paragraph 28) also was persecutory”. The ground refers to paragraph 28 of the Tribunal’s reasons where the Tribunal refers to the applicant’s having spent some nights in discomfort while watching over their belongings. The Tribunal, however, did consider whether the evidence the Tribunal accepted suggested the applicant’s capacity to subsist was ever threatened in China.

4. Before me, the applicant submitted she included religion as a ground for claiming protection because her migration agent said that if the applicant wanted protection she had to claim she was persecuted for reasons of religion. The applicant said it was true she was persecuted, but those who persecuted her used religion as an excuse. These submissions do not disclose any jurisdictional error by the Tribunal.

5. Ground 2, therefore, also fails.

Ground 3

1. The third ground is:

   The Tribunal failed to consider all of the applicant’s case. The Tribunal adopted the applicant’s ability to obtain a plot of land and re-establish a successful business in the first few years and denied the possibility of the applicant’s claim of factory being sealed in the later years (paragraph 29). The inference in this issue by the Tribunal is not cogent.

2. This ground challenges the Tribunal’s relying on the applicant’s having re-established her business on a newly acquired block of land as a ground for not accepting the applicant’s claim that the authorities had confiscated the business in 2008 as a punishment for the applicant having claimed compensation for the expropriation of her land that occurred in July 2004. In my opinion, it was reasonably open to the Tribunal to rely on this matter as a reason for rejecting the applicant’s claims. That the applicant, having claimed compensation for the July 2004 compensation, was able to acquire another plot, establish a business on that plot, and conduct that business until 2008 without interference, is evidence that was reasonably capable of grounding the inference that the authorities did not wish to punish the applicant because she had made a claim for compensation. In other words, it was reasonably open to the Tribunal not to accept the applicant’s claim that the re-established business was sealed in 2008 because the authorities wished to punish the applicant because she had previously claimed compensation, for reasons that included as a reason the applicant’s having re-established and conducting a business after having claimed compensation without any interference from the authorities.

3. Ground 3, therefore, also fails.

The submissions made at hearing

1. During the hearing before me, the applicant said a number of things:

   a)Because her land had been taken from her, she escaped to Australia; she used to operate a business in China; things were good until the government took her land using religion as an excuse; she became homeless; she was forced to live on the streets; and the Tribunal said she had no evidence.

   b)All of the applicant’s children are in Australia; she cannot go back to China; her son can sponsor her to stay in Australia; the applicant can never overcome the emotional trauma of having lived on the streets.

   c)The applicant does not feel safe in China. She felt she was going crazy when she was being persecuted in China.

   d)The Tribunal did not get the essence of her application.

2. In relation to her submission that the Tribunal did not get the essence of her application, I asked the applicant why she says the Tribunal did not get the essence of her application. The applicant said she told the Tribunal what she had experienced, and that she felt people in her case should be protected in Australia.

3. The submissions the applicant made at the hearing before me do not disclose any jurisdictional error. The Tribunal understood the claims the applicant made, and the Tribunal considered those claims. For reasons that were reasonably open to it, the Tribunal did not accept the applicant’s claims.

Other matters

1. The Minister directed my attention the judgment of Judge Smith in SZMYU v Minister for Immigration and Border Protection,[24] where his Honour considered a submission to the effect that the Tribunal in that case, like the Tribunal in the case before me, made a jurisdictional error by assessing the review that was before it both against the refugee criterion provided for by s.36(2)(a) and the complementary protection criterion provided for by s.36(2)(aa) of the Act. Judge Smith concluded that, assuming the Tribunal had made an error by considering the refugee criterion when it was required to deal only with the complementary protection criterion, the Tribunal’s error did not affect its consideration of the application against the complementary protection criterion. Alternatively, his Honour concluded that if the Tribunal made an error, and that error was jurisdictional, then, as a matter of discretion, relief ought to be withheld because there was only one decision available to the Tribunal, namely, the decision it made under the complementary protection criterion.

   [24] [2017] FCCA 357

2. I respectfully propose to apply Judge Smith’s reasoning in SZMYU to the application before me. Assuming the Tribunal made an error by considering the application before it, not only against the complementary protection criterion provided for by s.36(2)(aa) of the Act, but also against the refugee criterion provided for by s.36(2)(a) of the Act, that error did not affect the Tribunal’s consideration of the applicant’s case against the complementary protection criterion. Alternatively, assuming the Tribunal made an error, and the error was jurisdictional, the only decision that was available to be made by the Tribunal, given its conclusion that the applicant did not satisfy the complementary protection criterion provided for by s.36(2)(aa) of the Act, was to affirm the delegate’s decision. In those circumstances, as a matter of discretion, I would withhold the granting of relief.

Conclusion and disposition

1. The applicant has failed on each of the grounds on which she relies. I propose, therefore, to order that the application be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 31 March 2017