CTQ15 v Minister for Immigration

[2016] FCCA 738

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTQ15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 738

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – whether Tribunal erred in making adverse credit findings – whether applicant had a well-founded fear of persecution – no jurisdictional error identified – application dismissed.

Legislation:

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

First Applicant: CTQ15

Second Applicant: CTR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3455 of 2015

Judgment of: Judge Street

Hearing date: 5 April 2016

Date of Last Submission: 5 April 2016

Delivered at: Sydney

Delivered on: 5 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms H Musgrove
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The first applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3455 of 2015

CTQ15

First Applicant

CTR15

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 on the s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 16 December 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The first applicant was found to be a citizen of China and her claims were assessed against that country. The second applicant is the daughter of the first applicant and is a minor. The first applicant has a long migration history which is as follows: 

   3. APPLICANT HISTORY/MIGRATION HISTORY

   The applicant was granted a subclass 571 student visa on 19 May, 2006 in Shanghai, China. She arrived in Australia at Sydney Airport on 8 June, 2006 using a People’s Republic of China passport, G37565760 issued in her own name, [CTQ15] born 7 November, 1989 and was allowed to enter and remain in Australia until 16 June, 2009. The applicant was granted a further subclass 571 Student visa on 6 September, 2006 with limited work rights.

   Since her date of first arrival in Australia on 8 June, 2006 the applicant has undertaken the following travel:

   Departed – 24.06.07

   Arrived – 28.07.07

   Departed – 17.01.09

   Arrived – 01.03.09

   Departed – 10.12.09

   Arrived – 24.02.10

   The applicant applied for a further stay – onshore class TU subclass 572 Student visa on 22 July, 2008 on which date she was found to be eligible for the grant of an associated Bridging visa A. Her visa was granted on 1 August, 2008 allowing her to remain in Australia until 15 October, 2010.

   The applicant applied for a vocational education sector – class TU subclass 572 Student visa on 5 October, 2010 on which date she was found to be eligible for the grant of an associated Bridging visa A. Her visa was refused on 9 December, 2010. The applicant’s Bridging visa A expired on 17 January, 2011 following which she continued to remain in Australia as an unlawful non-citizen.

   The applicant lodged her Protection visa application on 20 March, 2014 and she was granted an associated Bridging visa E on 7 April, 2014

3. Before the delegate, the applicant claimed that she feared persecution by reason of being a Falun Gong practitioner.  The applicant also identified an alleged incident involving her grandmother in China as a result of her grandmother’s Falun Gong practice.  The delegate did not accept that the applicant was a genuine practitioner of Falun Gong. 

4. On 7 September 2015, the Tribunal invited the applicant to attend a hearing to take place on 19 October to give evidence and present submissions.   The applicant attended that hearing to give evidence and present arguments and was assisted by an interpreter.  The Tribunal did not accept that the applicant was a person of credit.  The Tribunal found that the applicant’s activities in Australia involving Falun Gong had been solely for the purpose of strengthening her claim to be a refugee.  The Tribunal found that the applicant did not have a well-founded fear of persecution if she returns to China, now or in the foreseeable future, for reasons of her being a Falun Gong practitioner.

5. The Tribunal found that the applicant’s claims do not give rise to substantial ground for believing that it is necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk she would suffer significant harm in the form of arbitrary deprivation of life or the death penalty being carried out, or torture, or cruel and inhumane treatment of punishment or degrading treatment or punishment. The Tribunal found that the applicant did not satisfy the criteria under ss.36(2)(a) or 36 (2)(aa).

6. The Tribunal noted in relation to the second applicant, that she was relying on her membership as a family unit being the second daughter of the applicant. The Tribunal found that the second applicant could not satisfy the criteria to be granted protection as a member of the family unit and did not satisfy the criteria under ss.36(2)(a) or 36(2)(aa).

7. On 25 February 2016, a Registrar of the Court fixed the matter for hearing and made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions.  The applicants filed no such documents.  At commencement of the hearing, the Court explained to the applicant the nature of the hearing being one to determine whether the decision of the Tribunal was effected by legal error.  The Court explained that the legal error had to be one whereby the Tribunal had exceeded its statutory powers or denied the applicants procedural fairness.

8. The Court explained the process that would be followed in the admission of evidence and then hearing from the first applicant, hearing from the solicitor for the first respondent and hearing from the applicant in reply.  The first applicant confirmed that she understood the nature of the hearing. 

9. The grounds of the application are as follows:

   1. I can't accept the decisions made by AAT because my risk and harm due to my Falun Gong faith and practice have not been thoroughly considered. AAT take less reference and understanding to my statement and specific explanation in hearing.

   2. AAT's assumption in term of my motivation on Faln Gong's activities in Australia are unrealistic, unreasonable and untruthful, especially the description and comments on item 46 about my involvement in the public preaching and proselytizing for 3 withdrawals of Chinese Communist Party. This is one of the significance or symbolic for a committed Falun Gong practitioner instructed by our master [H].

   3. AAT's assumption on my purpose of getting involved in Falun Gong practice and activities was untruthful and short of evidence as I was influenced by my family, especially my mother who was granted a protection visa in Australia. It don't necessary mean I should follow up my mother's practice when she applied for protection as I was not matured and unobligated by her faith at the time. I think I have my freedom to make a decision whether or not to start a belief and practicing.

   4. AAT failed to take into account of all the evidence provided to indicate I have been physically involved in various Falun Gong's activities in public in which I can' t inevitably avoid the allegation accused by Chinese government if return to China as I may have very much likely been exposed under the surveillance or monitoring or spotted by the agents or spies assigned by Chinese government in Australia. Such tragedy happened and practitioners are persecuted, recorded and relatives affected and blackmailed. Such info can be located publicly Australian media.

   5. AAT also ignored the fact that my children in China and Australia will be impacted due to my falun Gong background. The fact is that falun Gong's family members in China being bias treated, and struggling in danger.

   6. AAT also gave little reference and consideration on my evidence provided especially my mot her has been granted a protection by Australian government for Falun Gong background and my entire family are all residing in Australia

   7. I don't think AAT' s decision is fair and prudent as I was not given a chance to make a comment on the outstanding questions off hearing and it is not a fair go for me.

   The Grounds of the Application are:

   1. I am a Falung Gong practitioner and involved physical practicing and presentation for telling truth campaign in Australia. My family are all been granted by Australian government for their Falun Gong profile as well. I was impacted by my family for my Falun Gong beliefs, which are truthfulness, compassion and forbearance.

   2. My marriage was broken due to my Falun Gong's background. I have traumatized due to my failure of marriage and fell vulnerable in life. I wish to survive my children in China and Australia by Australian's concrete and immediate protection.

   3. My mother, as a committed Falun Gong practitioner has been granted protection once before and I wish to be a fellow practitioner with her. I have no alternative to stay safely. Australia is the only and ideal place for me to go.

   4. My grand-mother was converted to Falun Gong and she was persecuted in China. I have strong fear to return in my origin as the situation in China has never improved. Falun Gong still remains illegal, and be treated as evil cult. I therefore concern real much and anxious about my elder daughter in China.

   5. I firmly beloved that I will be at risk of harm if I go back to China. I wish Australian government could provide me with a protection for sake of my belief and future.

10. The decision of the Tribunal reflects a thorough reference to the applicant’s migration history and the claims and evidence of the applicant.  The grounds advanced in the application are in substance an impermissible challenge to the merits of the matter that were for the Tribunal to determine. 

11. The adverse findings of credit by the Tribunal were open on the material before the Tribunal. In particular, in light of the first applicant’s migration history, the adverse findings cannot be said to lack an evident and intelligible justification.  Nothing in the application identifies any jurisdictional error. 

12. From the bar table the applicant maintained that the decision was unfair in substance because she was not believed.  It was a matter for the Tribunal to determine whether or not it accepted the applicant’s credit.  As indicated above, there was ample evidence before the Tribunal upon which it was entitled to find that it did not accept the applicant’s credit. 

13. The applicant asserted that the Tribunal made a mistake in relation to her daughter’s grandmother but the applicant was unable to identify the alleged mistake in the Tribunal’s reasons. The Court is satisfied that the Tribunal correctly understood the applicant’s claims for fear of persecution from the practice of Falun Gong.

14. The applicant alleged that she should have been given an opportunity to meet the doubts of the Tribunal.  It is apparent from the decision of the delegate that the applicant’s credit was the live issue before the Tribunal.  The Tribunal’s reasons are consistent with it being apparent to the applicant that her credit was a live issue before the Tribunal and nothing said by the applicant identified any unfairness in the hearing conducted by the Tribunal.

15. The Tribunal complied with the statutory obligations in relation to inviting the applicant to attend a hearing.  I am satisfied on the material before the Court that the applicant had a genuine hearing.  Nothing said by the applicant from the bar table identified any jurisdictional error.  The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 April 2016