CTW15 v Minister for Immigration

[2016] FCCA 1036

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1036

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings –whether there is a real risk of significant harm – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424AA, 476

Cases cited:
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 239

Applicant: CTW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3476 of 2015

Judgment of: Judge Street

Hearing date: 3 May 2016

Date of Last Submission: 3 May 2016

Delivered at: Sydney

Delivered on: 3 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3476 of 2015

CTW15

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) in respect of a decision of the Tribunal made on 7 December 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and her claims were assessed against that country in relation to the applicant’s second application on the grounds of complementary protection.

3. The applicant first visited Australia in 1997 for around five months and, during 1998, made three separate visits to Australia, two of which were for more than two months.  The applicant then arrived in Australia on 4 January 1999 and applied for a protection order on 19 February 1999.  That application was refused by a delegate on 26 February 1999 and the applicant sough a review on 23 March 1999, which was rejected by the Tribunal on 29 April 1999.

4. On 4 March 2014, the applicant made her second application for protection consistent with the principles SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 239 on the grounds of complementary protection. That application was refused by the delegate on 25 July 2014.

5. The applicant appeared before the Tribunal on 12 November 2015 to give evidence and present arguments and was assisted by an interpreter.  In the current application, the applicant claimed that she became involved in Falun Gong in 2009 and participated in the campaign of telling the truth where bad people photographed her and reported her presence to the Chinese authorities.  The applicant alleges she received phone calls from her family in China, advising her that police were threatening her to give up Falun Gong or her family would not have an easy life.  The applicant says she continued to receive similar telephone calls.

6. The applicant says her family was forced by the Chinese authorities to attend a yearly brainwashing class every year since 2012.  The applicant claims to have lost all contact with her family as all her interaction was the subject of police surveillance.  The applicant alleges she telephoned her family on Chinese New Year and that as soon as she said something, the telephone line was cut.  The applicant said she later received a message from her family that the police had attended the applicant’s home and forced them to attend a brainwashing class.

7. In her first application for protection, the applicant claims that she was involved in the 1989 student movement in China which resulted in her being detained in a police station for half a year and sent to a labour reform education for a further year.  Following her release, she was able to return to her previous employment.  The applicant alleges that at that time, she was watched closely by her employer and the local police.  The applicant says she was denied promotions and pay rises at her work as she was a politically backward person.  The applicant says she organised sittings and two demonstrations in 1997 and says she was sent to the police station but subsequently released and watched closely.

8. The first Tribunal found that the applicant’s evidence was not credible.  The Tribunal said that because of a number of inconsistencies in the applicant’s evidence, it found that the applicant’s evidence was not credible and rejected all of her claims. 

9. The Tribunal identified the applicant’s alleged offence prior to her arrival in Australia in 1999 and the Tribunal found the applicant was not a credible witness and that she was not detained for six months in 1989 and was not sent to a labour camp for a year.  The Tribunal did not accept the applicant’s claim that she was detained for a brief period in early 1997 or at any other time before she lodged her application for protection in 1999.  The Tribunal did not accept that the applicant was or is adversely regarded by the Chinese authorities because of anything that occurred in China before she lodged her application for protection in 1999.

10. The Tribunal went on to consider the applicant’s claims in relation to Falun Gong.  In relation to the applicant’s evidence about her involvement in Falun Gong and her family being harassed, the tribunal concluded that the applicant’s evidence regarding her mother was false.  The Tribunal found the applicant was not a genuine Falun Gong practitioner and has not engaged in Falun Gong related conduct in Australia other than engaging in private research about Falun Gong.  The Tribunal found that the applicant was not regarded as a Falun Gong practitioner by the Chinese authorities.  The Tribunal was satisfied that the applicant was not a genuine Falun Gong practitioner and that she would have no reason to involve herself in Falun Gong activities in China and would therefore not do so.  It was in those circumstances that the Tribunal found that there was no reason to believe that the applicant would come to adverse attention of the Chinese authorities. 

11. It was in those circumstances that the Tribunal found that there was not a real chance that the applicant would face harm from Chinese authorities if she was to return to China in the reasonable foreseeable future and the Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal also found that there were no substantial grounds for believing that it was a necessary and foreseeable consequence of the applicant being removed from Australia to China that there was a real risk that she would suffer significant harm. The Tribunal found that it was not satisfied that the applicant met the criteria under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958.

12. On 10 March 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed by the applicant.  The application sets out the following grounds:

    1. I disagree with Immigration and AAT's decision since I am a genuine Falungong member. They did not consider that I will be in danger if I return.

    2. AAT did not consider that I am still actively practicing in Australia and it will also bring me a big trouble if I return home.

    3. AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

13. At the commencement of the hearing, the Court explained to the applicant that the hearing was to determine whether the Tribunal’s decision was affected by legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that it would identify the evidence and then hear submissions from the applicant and then submissions from the first respondent and then submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

14. The applicant’s submissions in chief were to the effect that she had nothing to say. The solicitor for the first respondent identified, in relation to ground 1, that it was the subject of adverse findings by the Tribunal that were open on the material before the Tribunal and that ground 1 failed to make out any jurisdictional error.

15. The solicitor for the first respondent submitted in relation to ground 2 that it was clear the Tribunal had considered the applicant’s claims in relation to practising Falun Gong in Australia and that there was no integer of the applicant’s claim that the Tribunal had failed to address, and that accordingly, ground 2 failed to make out any jurisdictional error.

16. The solicitor for the first respondent identified in relation to ground 3 that it was open to the Tribunal to say that there was no corroborative evidence and that the evaluation of the applicant’s credit was a matter for the Tribunal and that the adverse credit findings were open on the evidence before the Tribunal.

17. In reply to the solicitor for the first respondent, the applicant said that she could not go back to China and said that there was nothing else that she wished to add.

18. I accept the submission of the first respondent that ground 1 is an impermissible challenge of the adverse finding of fact made by the Tribunal.  That adverse finding was open on the material before the Tribunal and ground 1 fails to make out a jurisdictional error.

19. In relation to ground 2, I accept the first respondent’s submission that the Tribunal did consider the applicant’s claims in relation to practising Falun Gong in Australia and made adverse findings that were open to the Tribunal. The consequence of those adverse findings meant that it was open to the Tribunal to make the adverse findings in relation to the criteria under s.36(2)(a) and s.36(2)(aa). Ground 2 fails to make out a jurisdictional error.

20. In relation to ground 3, the adverse findings made by the Tribunal were the subject of reasons identifying the inconsistencies by the applicant as well as raising certain information with the applicant consistent with the requirements of s.424AA of the Migration Act 1958.  The adverse findings in relation to the applicant’s credit cannot be said to lack an evident and intelligible justification.  The adverse findings are not unreasonable and were open on the material before the Tribunal.  Ground 3 fails to make out any jurisdictional error. The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 May 2016