Aan17 v Minister for Immigration and Border Protection
[2021] FCCA 647
•1 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AAN17 v Minister for Immigration and Border Protection [2021] FCCA 647
File number(s): MLG 6 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 1 April 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection Visa (Class XA) – claims to fear harm due to Christian practice in China – whether the Tribunal was unreasonable, illogical or irrational in assessing evidence – whether the Tribunal ignored relevant evidence – whether the Tribunal failed to afford procedural fairness – no jurisdictional error establish – Application dismissed. Legislation: Migration Act 1958 (Cth) s 425 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
MZZJO v Minister for Immigration and Border Protection and Anor [2014] FCAFC 80
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937
Number of paragraphs: 42 Date of last submission/s: 15 March 2021 Date of hearing: 15 March 2021 Place: Heard in Melbourne, delivered in Dandenong Counsel for the First Applicants: Ms Pathan Solicitor for the First Applicants: Victoria Legal Aid Counsel for the Respondents: Ms Lucas Solicitor for the Respondents: Mills Oakley ORDERS
MLG 6 of 2017 BETWEEN: AAN17
First Applicant
AAO17
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.The Application filed on 3 January 2017, amended on 22 February 2021 be dismissed.
2.The Applicants pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an Application for Review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 22 December 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the First Applicant, also the Principal Applicant (‘the Applicant’), and the Second Applicant a protection (Class XA) visa ('visa').
For the reasons that follow, I have decided to dismiss the Application for Review.
BACKGROUND
The Applicant is a Chinese national. The Applicant arrived in Australia on 11 January 2014 with her Husband (‘the Second Applicant’) (collectively, ‘the Applicants’) on Tourist (FA-600) visas. The Tourist (FA-600) visa ceased on 11 April 2014. The Applicants applied for the visa on 19 March 2014.
On 17 July 2015, the delegate refused to grant the Applicants the visa.
On 22 July 2015, the Applicants applied to the Tribunal for review of the delegate's decision. On 4 November 2016 the Tribunal wrote to the Applicants through their migration agent, inviting them to attend a hearing on 5 December 2016. The Tribunal also requested in that letter that pre-hearing submissions be provided by 28 November 2018. No pre-hearing submissions were made.
On 5 December 2016, the Applicants attended the Hearing at the Tribunal with their representative.
On 22 December 2016, the Tribunal affirmed the decision of the delegate not to grant the Applicants the visa.
The Applicants filed the Application for Review and affidavit in support in this Court on 3 January 2017. An Amended Application, Outline of Submissions and Court Book was filed by the Applicant on 22 February 2021. An Outline of Submissions was filed by the Minister on 9 March 2020.
THE APPLICANTS’ CLAIMS AND THE TRIBUNAL’S DECISION
The Applicant, in summary, advanced three claims. First, a claim to fear harm and persecution as a Christian and practising member of her local family church. She claimed to have been practising religion from a young age. Second, that on 23 October 2013, at a church gathering in her home, uniformed police raided her house. She claimed, inter alia, to have been questioned, and detained before being released and was given a ‘release certificate’. Third, that her business licence was revoked by the authorities following the raid on the basis that she was ‘anti-government’.
As noted above, the Tribunal affirmed the decision of the delegate not to grant the Applicants the visa. In summary, the Tribunal:
(a)accepted that the Applicant had attended a church in China: reasons at [15];
(b)did not accept that the Applicant had been a practising Christian for 30 years in China: reasons at [15];
(c)did not accept that the Applicant had suddenly come to the attention of authorities following a local raid: reasons at [15];
(d)did not accept the authenticity of the release certificate nor that it supported the Applicant’s claim that she was held in detention: reasons at [16];
(e)did not accept that the Applicant had friends in the church who had been arrested and detained by the Public Security Bureau in China; reasons at [23];
(f)was satisfied that the Applicant had been ‘very diligent and active in her church work in Melbourne’ and concluded that she had done so ‘to foster the acceptance by the Tribunal that she would continue the same level of activity in China and be subject to a real chance of serious harm in the reasonably foreseeable future’: reasons at [19];
(g)found that if she was return to China, the Applicant would return to the same pattern of small-scale, low level, non-political church-going that she had practised before; reasons at [19];
(h)in light of the above, concluded that the Applicant did not have a well-founded fear of persecution in respect of the practice of her religion and that there was no real chance of serious harm or real risk of significant harm on the basis of the practice of her religion: see reasons at [19] and [25].
THE APPLICATION
Ground 1
The first ground of review in the Amended Application is:
It was unreasonable, illogical and/or irrational in that it analysed the nature of the First Applicant’s Christian practice subjectively rather than based on the evidence before the Tribunal.
Particulars
This can be inferred from the Tribunal’s reasoning at paragraph [15], including the Tribunal’s expectation that a practising Christian would have referred to ‘the Lord’s Prayer or similar’.
Under this ground of review, the Applicant takes issue with paragraph [15] of the reasons of the Tribunal. That paragraph provides follows:
The applicant claims to have been a Christian from a very early age. She gave a very general response to the Tribunal's questions about the content of each of the gatherings which happened on an almost daily basis in the village. Beyond telling the Tribunal about praying, reading the Bible and sharing stories there was little or no detail about the services and how they were conducted and by whom. The applicant's evidence regarding her religious practice in China, although extensive, did not answer the questions put to her about the actual content of the services, beyond generalities. If the applicant was a long term practitioner from a Christian family, the Tribunal would have expected a greater degree of detail in her description and explanation of her activities, particularly with regard to hymn singing, prayers offered, for instance the Lord's Prayer or similar, or the content of any sermons or similar. The lack of detail casts doubt on her claims that she has been a practising Christian since she was young. The Tribunal accepts that the principal applicant has attended a house church gathering, sometimes in her own home, with a usual attendance of up to 16 people. The Tribunal does not accept that she had been a practising Christian in China for thirty years, and suddenly came to the attention of the authorities in a raid on a local church that had never been raided before. The Tribunal accepts that she has attended a local church in China and that her husband is a Christian but accepts that he rarely attends church as he is busy working on the family farm The Tribunal accepts that both applicants will be members of the local church on return to China; that the primary applicant will attend church and the secondary applicant will attend rarely.
The Applicants’ submissions under this ground may be summarised as follows. The Tribunal assumed, without proper basis, that house church practitioners in China would do something other than what the Applicant described. It was said that the reference in paragraph [15] to the ‘Lord’s prayer or similar’ was regarded by the Tribunal as being a defining aspect of religious practice in a house church in China. It was further contended that the reasoning of the Tribunal is not based on probative material but on the Tribunal’s own subjective notions. In support of these submissions, the Applicant pointed to pages 4-7 of the Transcript of the hearing before the Tribunal member (‘Transcript’). It was submitted that the nature of the questions and answers given by the Applicant was not a sufficient basis upon which the Tribunal could doubt her being a long-term practitioner of Christianity because of what it considered to be a lack of detail in her description and explanation.
The submissions above are advanced on the basis that the Tribunal’s decision was unreasonable, illogical or irrational. The tests that an applicant needs to meet to satisfy a Court that a particular decision is illogical or irrational or unreasonable are well understood. Among other things, unreasonableness or illogicality is a high bar. A finding will not be unreasonable if it is a finding that is clearly open on the basis of the evidence. Further, it is for an applicant to provide the evidence and arguments in sufficient detail to enable the decision-maker to reach the requisite state of satisfaction: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [76].
In MZZJO v Minister for Immigration and Border Protection and Anor [2014] FCAFC 80 (‘MZZJO’), the Full Court discussed the approach in assessing claims involving, inter alia, religious beliefs and practise. At paragraph [47], the Full Court stated:
For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief.
…
What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge.
When the decision of the Tribunal and the Transcript are considered, it becomes apparent that the Tribunal approached the matter consistent with what the Full Court described above. That is, inter alia, the Tribunal engaged in the task of assessing the extent of the Applicant’s practice of Christianity by reference to her demonstrated knowledge.
When pages 4-7 of the Transcript are looked at, it is accurate to state that, when questioned, the Applicant provided limited detail about the nature of the services or prayers beyond reading the Bible, or singing hymns. The Applicant contends, among other things, that she was never asked directly about the content of the services she attended. The Applicant was not asked specifically ‘what is the content of the service’. She, was asked, however questions about what happens on each day, how often the church met and where it met, and in response to a series of questions, she gave general answers about visitations, Bible reading and hymns. I also observe that when she was asked specifically about what book was read, she did not answer in direct terms but simply stated ‘an explanation of the words in the Bible’ (see Transcript page 6, line 25). Further, the Applicant was unable to name her church friends who had been arrested and detained. It was for the Applicant to provide the detail or information necessary to substantiate her claims. She did not do so.
There is then paragraph [15] of the Tribunal’s reasons. The Applicant claimed, as recognised by the Tribunal in the opening words to paragraph [15], to have been a practising Christian from a very early age. It was the assessment of this claim – the extent of her practice of Christianity – that was the focus of the Tribunal’s attention in paragraph [15] of its reasons. In assessing this claim, the Tribunal made a number of observations. It observed that the Applicant gave ‘general’ responses to questions about ‘the content of each of the gatherings which happened on an almost daily basis in the village’. The Tribunal also observed that there was ‘little or no detail about services and how they were conducted and by whom’ beyond praying, reading the Bible and sharing stories. It was in this context that the Tribunal observed that it would have expected the Applicant to have ‘a greater degree of detail in her description and explanation of her activities, particularly with regard to hymn singing, prayers offered, for instance the Lord’s Prayer or similar, or the content of any sermons or similar’.
When all of the above matters are considered, the reasoning of the Tribunal was not unreasonable, illogical or irrational. The Tribunal was engaged in assessing the extent of the Applicant’s practice as a Christian and it did so in a manner consistent with authority: see MZZJO. It was open to the Tribunal to make the findings, or hold the reservations that it did, given the matters to which it referred which included the generic information provided by the Applicant. I did not understand the Applicant to contend she was denied procedural fairness in relation to the manner in which the Tribunal approached its consideration of this issue, but to the extent such an argument may have been put, I would reject it. A review of the delegate’s decision discloses that the delegate also held concerns about the Applicant’s credibility and in particular, noted her ‘general’ responses and her lack of detail: see Court Book 113. The Applicant was therefore on notice about this issue.
If I am wrong in relation to the conclusion I have reached above, I would nevertheless conclude that no jurisdictional error has been committed by the Tribunal under this ground. That is because the Tribunal ultimately accepted that the Applicant would be a member of the local church and would continue to practise her religion in China in the way that she had always practised it.
For the above reasons, I dismiss Ground 1.
Ground 2
The second ground of review in the Amended Application is:
Further or alternatively, the Tribunal constructively failed to exercise jurisdiction by ignoring relevant evidence advanced by the First Applicant in respect of the raid and the First Applicant’s subsequent detention in October 2013.
Particulars
a) The Tribunal ignored evidence that the First Applicant was able to avoid previous police raids because she had advance warning of them.
b) The Tribunal ignored evidence as to the condition and contents of the release certificate.
Two principal points are advanced by the Applicant under this ground. First, it is contended by the Applicant that the Tribunal did not accept at paragraph [15] of its reasons that the Applicant ‘suddenly came to the attention of the authorities in a raid on a local church that had never been raided before’. That finding is said to ignore evidence given by the Applicant that ordinarily members of the church would receive a warning about raids, but that no warning was given to the Applicant about the raid on 23 October 2013.
It is critical to assessing this submission to understand what the Tribunal reasoned in paragraph [15]. The Tribunal is not concerned in paragraph [15] in assessing the question of whether or not the Applicant’s church was raided. Rather, the Tribunal is principally engaged in assessing the extent of the Applicant’s Christian practice. To assess that claim, the Tribunal had to assess a number of matters. One of those matters was whether it could accept that the Applicant had avoided attention as a practising Christian for 30 years. The Tribunal ultimately did not accept the Applicant had been a practising Christian in China for 30 years, in part because it could not accept that she had practised for that length of time without coming to the attention of the authorities. It is a rational and logical step for the Tribunal to question and enquire as to how a person who claims to have been practising Christianity for 30 years would avoid detection for so long. The Tribunal clearly did not find it plausible that someone practising Christianity for the length of time claimed by the Applicant, could avoid detection for so long. In this respect, the Applicant’s evidence was regarded as not credible.
In my view, it was open to the Tribunal not to accept the Applicant’s explanation for avoiding detection by the authorities. It is not necessary for the Tribunal to refer to every piece of evidence or contention: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]. The Tribunal did not need to refer specifically to the evidence to which the Applicant refers. The Tribunal ultimately made a finding of greater generality that it did not accept, in the context of the extent of the Applicant’s claimed Christian practice, that she was able to avoid detection for so long.
Secondly, under this ground, the Applicant takes issue with the Tribunal’s conclusions in relation to the Release Certificate. The Release Certificate is dealt with in paragraph [16] of the Tribunal’s reasons. That paragraph provides as follows:
The release certificate given to the applicant on her release from the custody centre is an A4 sheet of white paper which appears to be very new. The translated version was also provided, but did not show any charges against her, or any details of her eight day detention. The Tribunal discussed with the applicant why the document was not the original, and why it did not show details of any charges. She had no comment to make about why these details were not shown. Country information (China: Country of Origin Information (COI) Report, UK Border Agency, Home Office, 12 October 2012) attests to the availability of a range of fraudulent documents from China. The Tribunal does not accept that the document is genuine or supports the applicant's claim that she was held in detention. Based on the reasons above, the Tribunal does not accept that the applicant was detained in 2013 due to her religious activities.
It is contended by the Applicant that the Tribunal did not consciously engage with the material before it in concluding that Release Certificate was not genuine. In support of that submission, the Applicant points to the following. The Tribunal relied on the same source document as referred to by the delegate, being the Country Information (China: Country of Origin Information (COI) report, UK Border Agency, Home Office, 12 October 2012. Further, the Tribunal referred to the ‘newness’ of the document when in fact what it had before it was a scanned version of the document and not an original. Further, the Tribunal stated that the Release Certificate did not show any charges against the Applicant, when in fact her detention was referred to in the Release certificate. Finally, the Transcript discloses that contrary to the Tribunal stating that the Applicant ‘had no comment to make about why these details [charges] were not shown’, the issue of whether details of charges were contained within the Release Certificate was not discussed with her.
In order to consider this issue, it is necessary to have regard to the content of the Release Certificate. A translated version of the Release Certificate was contained within the Applicant’s Court Book at page 2. It states as follows:
Fuqing Public Security Bureau Detention Center
Release Certificate
Re: R.G.J. 2013/137
Detainee [AAN17], gender of female, born on [DOB remitted] was determined by Fuqing Municipal Public Security Bureau for administrative/ juridical detention/interrogation. Detection period started from October 23rd 2013 and ended on November 1st 2013.
Having served the full term is now released.
Fuqing Municipal Public Security Bureau Detention Center
November 1st 2013
This copy to be served to the detainee
The following is apparent when the Release Certificate is considered. First, the Release Certificate does not specify the charges brought against the Applicant. The Tribunal did not commit any error in its description. Secondly, it is apparent that the Tribunal did focus on the content of the Release Certificate: it could only have correctly expressed a view that the charges against the Applicant were not set out in the document if it had had regard to the content of the document. Other matters also become apparent. While the Release Certificate speaks of ‘detection’ (which I take to mean ‘detention’), it provides no details or insight into the reason why the Applicant was detained, or the events that led to her detention. When regard is had to these matters, it cannot be reasonably said that the Tribunal has ignored the content of the Release Certificate, or not engaged with it.
There is then the Tribunal’s consideration of the Release Certificate at paragraph [16] of its reasons, which I have set out above. It becomes clear when that paragraph is looked at, that the Tribunal considered Country Information in assessing and giving weight to the Release Certificate.
Ultimately, the Tribunal stated that it did not accept the Release Certificate as being genuine or supporting the Applicant’s claim that she was held in detention. That was a conclusion that was open to it when regard is had to what I have set out above. In my view, when the decision is read fairly and as a whole, the Tribunal neither ignored the Release Certificate or its content.
For all of the above reasons, Ground two of the grounds of review is dismissed.
Ground 3
The third ground of review in the Amended Application is:
Further or alternatively, the Tribunal failed to afford the First Applicant procedural fairness and/or failed to provide a meaningful hearing within the meaning of s 425 in respect of the finding that the First Applicant’s involvement in church work in Melbourne was ‘to foster the acceptance by the Tribunal that she would continue the same level of activity in China and be subject to a real chance of serious harm in the reasonably foreseeable future’.
At paragraph [19] of its reasons, the Tribunal made the following finding:
The Tribunal finds that the applicant has been very diligent and active in her church work in Melbourne to foster the acceptance by the Tribunal that she would continue the same level of activity in China and be subject to a real chance of serious harm in the reasonably foreseeable future
The Applicant takes issue with this finding. She submits that this finding was the basis upon which the Tribunal ultimately found that the Applicant would not face future harm in China because she would continue to practise her religion as she had always done. The Applicant submits that the issue had not been raised by the delegate, and that there was no indication from the Tribunal about her motives for undertaking church work in Australia. In those circumstances, the Applicant claims to have been denied procedural fairness and a meaningful hearing as required by section 425 of the Migration Act 1958 (‘Act’). The Applicant relies on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [47] (‘SZBEL’).
In assessing the Applicant’s submissions, it is important to have regard to the context of the decision, and in particular, what the dispositive issue was before the Tribunal. In this matter, the dispositive issue was whether the Applicant had a well-founded fear of persecution arising from her religious practices and beliefs.
The Applicant’s complaint under this ground is that the Tribunal’s finding about her motive for engaging in church work in Australia was the basis upon which the Tribunal concluded that the Applicant would not be subject to a real chance of serious harm in the reasonably foreseeable future in China. I do not accept this submission. The finding sought to be complained about under this ground is a finding about the credibility or reliability of the Applicant. The Tribunal, however, had already made findings that were adverse to the Applicant’s credibility and had effectively already questioned her credibility. For example, the Tribunal did not accept that the Applicant had been a practising Christian for thirty years or that the Applicant was detained by authorities in China due to her Christian belief and practice: reasons at [15] – [16]. The Tribunal’s decision as to future harm was therefore not made only on the basis of its views about the motives for the Applicant engaging in church work in Australia.
The Tribunal’s view on the dispositive issue before it was not only, however, based on its view about the credibility of the Applicant. In assessing the extent of the Applicant’s Christian practice and the risk that she may face, the Tribunal also had regard to Country Information about the extent to which the Chinese government permitted the practice of religion. For example, at Court Book 122, the delegate stated ‘According to DFAT, small informal prayer meetings are permitted without official registration. DFAT assesses that generally, religion in China can be practised within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Government’. The Applicant was on notice that the extent of her Christian practice upon any return to China was an issue.
Finally, at paragraph [19] of its reasons, the Tribunal made a separate finding that ‘if the applicants return to China… The principal applicant will return to the same pattern of small scale, low-level non-political pattern of church going she has practised before’. That was a finding that was open to the Tribunal. It was based on the motivations of the Applicant for undertaking church work in China. It was based, also, on the earlier findings made and Country Information considered.
When regard is had to the matters set out above, I am satisfied of the following. The dispositive issue was whether the Applicant had a well-founded fear of persecution arising from her Christian religious practices and beliefs. The Tribunal expressed serious reservations about, and made findings, adverse to the Applicant about the extent of the Applicant’s Christian practice independently of its observations about the reason the Applicant undertook church work in Australia. It was those other reasons, in combination with the finding as to the reasons why the Applicant undertook church work in Australia that formed the basis for the Tribunal’s ultimate conclusion that the Applicant did not face a real risk of significant harm. The Tribunal’s questioning of the Applicant’s motives was therefore a logical extension of concerns that the Tribunal had already expressed about the extent of the Applicant’s Christian practice. Further, it is well accepted the Tribunal is not required to give ‘a running commentary upon what it thinks about the evidence that is given’ or encourage the Applicant to elaborate on topics an applicant chooses not to embark on: see SZBEL at [48]; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [36]-[37].
For the above reasons, I am satisfied that the Applicant has not been denied procedural fairness. I am also satisfied that the Applicant has not been denied a meaningful hearing under section 425 of the Act.
For all of these reasons, Ground three of the grounds of review is dismissed. In light of the foregoing, the Amended Application must be dismissed. I award costs to the Minister of $7,467.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate: Vanessa Lopreiato
Dated: 1 April 2021
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