WZAVY v Minister for Immigration

[2015] FCCA 2590

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAVY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2590

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – whether Tribunal erred in finding that the applicant not entitled to protection under complementary protection provisions – whether Tribunal erred in finding applicant did not face real risk of significant harm – no sufficiently arguable case to warrant extension of time – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 420, 422B, 476, 477(1)

SZGIZ v MIAC (2013) 212 FCR 235
SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125

Applicant: WZAVY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 56 of 2015

Judgment of: Judge Street

Hearing date: 18 September 2015

Date of Last Submission: 18 September 2015

Delivered at: Perth

Delivered on: 18 September 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr P Corbould

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 56 of 2015

WZAVY

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, in respect of a decision that the Tribunal made on 9 January 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant had been the subject of an earlier determination in relation to his application for protection, but the earlier determination had not dealt with complementary protection. Consistent with SZGIZ v MIAC (2013) 212 FCR 235, the applicant made a second application for protection on 22 January 2014.

3. The applicant had been granted a Visitor visa on 31 January 2011 and arrived in Melbourne on 14 February 2011.  The applicant left Australia through Brisbane on 16 February 2011 for a short stay in New Zealand before returning to Australia through Cairns on 19 February 2011.  The applicant was part of a tour group from which he absconded on 22 February 2011, and he made his first application for protection on 25 February 2011 and was granted a Bridging visa which expired on 26 May 2011.  That application for protection was refused on 14 April 2011 and the applicant thereafter remained unlawfully in the community following the expiry of his Bridging visa until he was detained on 9 January 2014.  The applicant was found to be a citizen of China and his claims were assessed against that country as the receiving country.

4. The grounds of the application are as follows:

   1. The Tribunal erred by finding pursuant to s.36(a) of the Migration Act that I'm not a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol

   Particulars

   • The Tribunal failed to recognise that I have Anti-communist history, as when I was the village leader on two occasions, I have made many complaints to the local government.

   • I was twice dismissed by the local government because I made many complaints about the local government.

   • I have wrote and published number of stories about the corruption in china on “Vision China Time” a very well-known newspaper worldwide.

   2. The Tribunal erred by finding pursuant to s. 36(aa) of the Migration Act that I'm not a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

   Particulars

   • The recent Privacy Breach incident has disclosed my full details to the world.

   • The respondent has breach Australian's non-refoulement obligation by releasing my personal details (include my name, date of birth, nationality, length in detention, reason why I am in detention as well how I came in to detention)to my home country as well as the rest of world.

   • The date has been accessed many time by 104 different IP address, and the respondent has not disclose the IP address, which made the risk of persecution much higher and difficult to quantify.

5. This is a case where the application to this Court was filed outside the 35-day period permitted by s.477(1), and accordingly, an extension of time is required by the applicant in relation to this application. An extension of time ordinarily requires a satisfactory explanation for the delay, as well as a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice.

6. The applicant was in detention at the time of seeking to pursue proceedings in this Court, and indicated from the bar table that he was endeavouring to obtain legal assistance to lodge the application.  In the circumstances, I regard the explanation advanced by the applicant as an adequate explanation for the delay, but I am not satisfied that the grounds identified by the applicant are sufficiently arguable. 

7. In relation to ground 1, I accept the first respondent’s submission that the Tribunal was not determining whether the applicant fell within the Refugee Convention, but was rather addressing the question under s.36(2)(aa) in respect of complementary protection. Nothing identified in ground 1 identifies any arguable jurisdictional error.

8. In relation to ground 2, this is a case where the Tribunal was the subject of the statutory regime identified in ss.420 and 422B, and is distinguishable from the process that was addressed by the Full Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125.

9. I accept the first respondent’s submissions that the decision in that case can be distinguished because it was there dealing with a process that was not that the subject of the statutory obligations in respect of fair, just, economical, informal, and quick, and the exhaustive statement of the natural justice hearing rule as found in Part 7 that applied to the Refugee Review Tribunal in assessing whether or not Australia had an obligation of non-refoulement of the applicant by reason of the application of the complementary protection provisions in s. 36(2)(aa).

10. I also accept the first respondent’s submission that the Tribunal did not have before it the information that was the subject of the decision in SZSSJ, and that that is a further basis upon which that decision can properly be distinguished.  

11. It is clear that the applicant appeared before the Tribunal in accordance with an invitation consistent with the statutory regime, which took place on 12 November 2014 and the applicant was given the opportunity to give evidence and present arguments with the assistance of an interpreter. 

12. The Tribunal identified the applicant's claims in relation to his alleged fear that there was a real risk he would suffer significant harm in respect of Christianity, political activity, and the stories or articles that he alleged he had published.  Relevantly, the Tribunal held:

    19. The Tribunal is satisfied that the applicant ·does not face a real risk of significant harm, on the basis of his religion if he was to return to China.

    …

    31. Based on the evidence provided, the Tribunal is satisfied that the applicant will not be harmed if he returns to China by the Chinese authorities for reasons of his political or imputed political opinions.

    32. The Tribunal is satisfied that the applicant does not face a real risk of significant harm, on the basis of his political or imputed political opinion if he was to return to China.

    …

    42. The applicant told the Tribunal that his wife was living in the village now but had been working away for about 6 months. Prior to working away she was living in the village. His son is aged 24 years and lives away in another city but he does not know what work his son does. His two brothers and sister still live in the village but the other three sisters live away in other provinces.

    …

    48. …The Tribunal does not accept that if the applicant was truly fearful about his family and wife's safety that he would continue to publish the articles.

    50. The applicant's evidence is that names, dates and places have all been changed in the articles. The Tribunal accepts that the applicant's name has been included on the published article as the author in conjunction with another person who the applicant claims assisted him with editing. The Tribunal does not accept that the applicant can be identified by his name alone in a country populated with millions of people.

    …

    52. …The Tribunal is also not satisfied on the evidence presented that the Chinese authorities are aware that he has written and published these articles.

    53. The Tribunal does not accept based on the evidence presented that the applicant’s family have experienced high political pressure and harassment by the Chinese Public Security Bureau due to his writing and publishing of pro-democracy and anti-Chinese government novel and does not accept that this has made him suffer mentally and feel scared. The Tribunal does not accept that the applicant has come to the adverse attention of the Chinese authorities because of his writing and publishing of these articles.

    54. Based on the evidence provided, the Tribunal is satisfied that the applicant will not be harmed if he returns to China by the Chinese authorities as a result of publishing these stories or because he has been imputed as being opposed to the Chinese Government or Communist party through the publishing of these stories as the Tribunal does not accept that he has an adverse profile with the Chinese authorities.

    55. The Tribunal is satisfied that the applicant does not face a real risk of significant harm, as a result of publishing these stories or because he has been imputed as being opposed to the Chinese Government or Communist party through the publishing of these stories if he was to return to China.

13. It was in those circumstances the Tribunal turned to the issue of data breach and being a failed asylum seeker, and relevantly held: 

    56. The applicant told the Tribunal that the Chinese Government knew he had applied for protection. He stated that he had received a letter on 31 January saying that his protection visa application details had been released to the public and the Chinese Government would know that he had applied for protection and why. The Tribunal put to the applicant that his personal details had been released but the information provided by the department was that no details of his protection visa application had been released. The applicant told the Tribunal that he does not have solid evidence, but just feels that they know. The Tribunal put to the applicant again that just his name and personal details were inadvertently made available and that people had to access the information to be able to obtain it. The applicant then agreed with the Tribunal that only his name had been released.

    57. As the applicant was in detention before 31 January 2014, the Tribunal accepts that his details (name, date of birth, nationality, gender, details of his detention) may have been released inadvertently on the Department's website. As noted in the delegate's decision there was no information released regarding his protection claims, and the Tribunal accepts this.

    …

    59. The Department of Immigration regularly seeks the opinion of the Department of Foreign Affairs and Trade (DFAT) on these issues. In 2006 advice DFAT stated that “it is not possible to comment definitively on how Chinese authorities would treat failed asylum seekers.” However, DFAT does not suggest that Chinese authorities impute all failed asylum seekers with political beliefs and subject them to harm. Rather, the advice states that “[i]t would be very likely that Chinese authorities would interview them and might keep them under surveillance and detain them for a short period. Any further action would depend on the circumstances of the individual cases.”

    …

    63. The Tribunal has considered the applicant's claim to fear returning to China on the basis of being a failed asylum seeker. The Tribunal rejects the applicant's suggestion that the fact that he is an asylum seeker may have been leaked in the data breach. The applicant provided no evidence or claims that the authorities were aware of his protection visa application or would be likely to become aware of it. As the protection visa application process is confidential, the Tribunal is not satisfied that the Chinese authorities would be aware that the applicant had lodged an unsuccessful protection visa application. Based on the evidence before it the Tribunal considers that the applicant has no profile in China.

    64. The Tribunal acknowledges that in any event the Chinese authorities will know that he has been detained in Australia because the department will approach the Chinese consulate/embassy about his identity/documents for his return. The Tribunal accepts that Chinese authorities will know that the applicant left China in February 2011 and has not returned. The Tribunal also accepts that authorities in China could well assume that the applicant claimed asylum in Australia so that he could remain permanently in Australia as many Chinese citizens detained in Australia for overstaying their visas in Australia do. Having regard to the country information referred to, the Tribunal accepts that the applicant may be questioned and interviewed on his return to his country as a failed asylum seeker from Australia.

    65. The Tribunal does not accept that the applicant's lodging of a protection visa application or being unlawful in Australia does of itself give rise to a real risk that the applicant faces significant harm on return to China because he is a failed asylum seeker or was unlawful in Australia. The Tribunal does not accept that the applicant would be of adverse interest to authorities in China for these or any reasons.

    66. As noted above the Tribunal does not accept that that the applicant will face harm in his country, for the reasons of his religion or political activity or writing and publishing of stories or his election as village chief. Therefore the Tribunal does not accept that he will be detained on his return because the Tribunal is satisfied on the evidence provided the applicant does not have a profile as a political activist/dissident or Christian activist, is not known for publicly criticising the Chinese regime and does not have any adverse profile with the Chinese authorities for any reason.

    67. Based on the evidence provided. the Tribunal is satisfied that the applicant will not be harmed if he returns to China by the Chinese authorities because he is a failed asylum seeker or was unlawful in Australia or as a result of any data breach.

    68. The Tribunal is satisfied that the applicant does not face a real risk of significant harm, because he is a failed asylum seeker or was unlawful in Australia or as a result of any data breach if he was to return to China.

    69. The Tribunal does not accept on the evidence before it that there is a real risk that the applicant will suffer harm as a result of being a Christian, because of his activities as village chief, his activities in writing several letters of complaint about various matters, his political or imputed political opinion, his activities writing stories published in the Chinese paper in Australia because he has been imputed as being opposed to the Chinese Government or Communist party through the publishing of these stories or because he is a failed asylum seeker or was unlawful in Australia or as a result of any data breach. The Tribunal does not accept that the applicant has suffered significant harm in China in the past, nor does it accept that there are is any reason to believe that he would suffer significant harm in the future. The Tribunal does not accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in China.

    70. The Tribunal has considered the applicant's circumstances individually and cumulatively, and it finds there is no basis for the applicant's claims to fear significant harm. The Tribunal is not satisfied that there are substantial grounds for believing, that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk that he will suffer significant harm as defined in s.36(2A).

    CONCLUSION

    71. Having considered the applicant's claims individually and cumulatively, for the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

    72. It follows that he is also unable to satisfy the criterion set out in s.36(2)(b) or (c). As he does not satisfy the criteria for a protection visa, he cannot be granted the visa.

14. The applicant said that he had written more than 15 articles, and that he feared that he would suffer persecution by the Chinese Government.  The applicant also said that he feared that his details had leaked out to the Chinese Government and that he would be in danger because of that, and that he would be locked up, and that he was very scared.

15. This is a case where the Tribunal has assessed and made findings of fact in relation to the applicant's alleged fears in respect of the risk that he will suffer significant harm if returned to China. The adverse findings by the Tribunal were open, and it is in those circumstances that I am satisfied that ground 2 does not raise a sufficiently arguable jurisdictional error to warrant an extension of time in the interests of the administration of justice. 

16. I accept the first respondent’s submission that there is in this case no arguable denial of procedural fairness identifying any jurisdictional error of a kind raised in SZSSJ. I accept the first respondent’s submission that there is no sufficiently arguable jurisdictional error by reason of the applicant’s claims based upon the data breach in relation to the applicant and the adverse findings by the Tribunal. 

17. Accordingly, the Court is not satisfied that this is an appropriate case to extend time under s.477(2) of the Migration Act 1958. 

18. The Court notes that no formal written application had been made for an extension of time. The Court would have extended time, if satisfied that there was a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice. The Court is not so satisfied. The application is treated as if it was an application for an extension of time under s.477(2). The application for an extension of time under s.477(2) is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 October 2015