ACR17 v Minister for Immigration
[2018] FCCA 1183
•17 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACR17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1183 |
| Catchwords: MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 499 |
| Cases cited: AZAEY v Minister For Immigration and Border Protection (2015) 238 FCR 341; [2015] FCAFC 193 |
| Applicant: | ACR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 14 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 17 May 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms La |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The originating application filed 9 January 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 14 of 2017
| ACR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 9 January 2017, the applicant sought the issue of constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 14 December 2016.
In essence, the Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Border Protection (the “Minister”) on 15 March 2016 not to grant the applicant a Protection (Class A) Visa (“protection visa”).
The applicant’s protection visa application was lodged on 3 November 2014.
The applicant sought judicial review in this Court pursuant to s. 476 of the Migration Act 1958 (Cth) (the “Act”).
In his judicial review application to this Court the applicant, in effect, relied on what are effectively six grounds of review:
1. I don’t think DIBP and AAT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.
2. DIBP and AAT failed to prudently consider my risk due to my commitment of paralysing if I return to origin.
3. AAT failed to consider my statements provided in supporting my claim as a whole.
4. I am a Chinese citizen and have faithful and committed Christian faith. I have strong fears by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.
5. I have been actively involved in church actives. My action and religious performance has been evidenced by church elder with reference.
6. AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.
(sic)
In relation to ground 2 above, counsel for the Minister submitted that that word “paralysing” should read “proselytising”. The Court agrees.
The applicant appeared before the Court without legal assistance but with the assistance of an interpreter in the Mandarin language. The Court thanks the interpreter for his assistance.
The question for the Court in this case is whether the Tribunal fell into jurisdictional error in the manner alleged by the applicant.
Synopsis
For the reasons set out below, the Court finds that the Tribunal did not fall into jurisdictional error. Consequently, the application for judicial review is dismissed. The Court will hear the parties as to costs.
Background facts
The Court had before it a Court Book numbering 125 pages. The Tribunal’s decision appears at pages 116−125 in the Court Book. The Minister presented detailed written submissions. Despite being given an opportunity to do so, the applicant did not provide written submissions. Nor were his oral submissions detailed or particularly useful. The applicant would have benefited from legal assistance. He was visibly distressed and confused. Unfortunately, the Court cannot assist in that regard. The applicant had a copy of the Court Book and the Minister’s written submissions. The Court asked counsel for the Minister to ensure that any evidence she intended to rely on was highlighted so that that evidence could be translated for the applicant. The Court thanks counsel for her assistance in ensuring that the applicant had time to reflect on what was being put to him and understood what was being said in relation to what is a complex area of law.
The Court has reviewed the factual material provided by the Minister and adopts the factual and procedural background outlined at paragraphs 3 to 10 in the Minister’s outline of submissions dated 10 April 2018. This background information is, relevantly, as follows.
The applicant, a citizen of China, arrived in Australia on 21 December 2007 on a student visa. The student visa expired on 7 May 2009. The applicant remained in Australia as an unlawful non-citizen (CB at 67).
On 12 November 2014, the applicant lodged an application for a protection visa with the then Department of Immigration and Border Protection (the “Department”) (CB at 3-29).
Attached to the applicant’s protection visa application form was a written statement by the applicant which read as follows (CB at 30):
... I have strong fears of returning to my home country because I am a Christian.
According to the Convention definition, I make the following statement:
I believed in Christianity when I was in China and I attended the house church regularly. Our church is called Local Church. My parents and sister were also Christians. My parents were arrested by the government for holding unauthorized gatherings at their house. For my safety, my parents sent me abroad for study.
After, I arrived in Australia with student visa. I love this country and met a lot of new people including people from church. I met a friend whose name is Peter. He is very faithful Christian and often engages in church activities. He is a very nice person and sometimes invites me to join their church. I really enjoy the friendly environment there and I finally joined their church.
My friend, Peter completed his study at beginning of this year and returned to China afterwards. We normally contacted each other with phone. He told me that it is not easy to continue his belief in China. I also knew this from family experience. Although there are government churches available, they just don’t feel the same way as the churches in Australia. Churches are completely controlled by government. Freedom of speech and freedom of religion does not exist in China. Although it is difficult to continue his religion in China, eventually he still found an underground church in China and it is not controlled y (sic) the government. Since the church is not under government surveillance. It is seen as illegal and has been called as evil cult. However, he still insisted to join the underground church and I warned him to be careful. Last month, when I called his home and his mother answered the phone. She told me that Peter was detained by police for one week due to engaging in underground church activities. Peter was eventually bailed out and he was forced to confess and was penalized heavily. His mother knows I am Peter’s close friend and she warned me not to return to China to continue with my belief. Otherwise I would suffer the same consequences as Peter.
I was really shocked after what happened to Peter. I am really scared that I would be penalized and suffer severe consequences once I return to China to continue with my belief. My parents told me not to return either. I sincerely hope that Australian government could protect me and consider my application favourably.
On 21 January 2016, the Department sent the applicant an invitation to attend an interview with a delegate of the Minister on 17 February 2016. The applicant failed to attend this interview (CB at 67).
On 15 March 2016 a delegate of the Minister refused the applicant’s application for a protection visa (CB at 66−77). The delegate made a number of adverse credibility findings in relation to the applicant’s claimed fears of harm (CB at 70−72) and noted that the applicant had failed to attend the interview scheduled and that all reasonable steps had been taken to give the applicant an opportunity to substantiate his claims for protection.
The applicant appealed the delegate’s decision to the Tribunal on 30 March 2016 (CB at 80).
The applicant’s appeal was heard by the Tribunal on 14 December 2014. He appeared with the assistance of an interpreter in the Mandarin language. No issues in relation to the accuracy or reliability of interpretation services offered were raised by the applicant before the Tribunal (CB at 117, paragraph 3) or before this Court.
The Tribunal’s Decision
The Tribunal’s decision appears at pages 116−125 in the Court Book.
The Tribunal began with an overview of the criterion for a protection visa (at paragraphs 5−14). This analysis also included an overview of the relevant complementary protection criterion (at paragraphs 15−17). The Tribunal also outlined its obligations in accordance with Ministerial Direction No. 56 made under s. 499 of the Act (paragraph 18). These obligations include a duty to take account of any country information relevant to the decision under consideration.
At paragraph 25 in its decision (CB 119) the Tribunal noted the protection claims set out by the applicant. These are the same claims detailed above at paragraph 14.
At paragraphs 29 and 30, the Tribunal explains that on 24 October 2016 the Tribunal wrote to the applicant indicating that it was unable to make a favourable decision on the information currently before it. The applicant was invited to appear before the Tribunal on Wednesday, 14 December 2016 at 11.00 am.
The Tribunal then explains that no further written submissions were received prior to the hearing (paragraph 30).
The Tribunal hearing was held on 14 December 2016. The Tribunal’s findings appear at paragraphs 35 – 59 in its written decision. It is clear that much of the Tribunal’s analysis of the evidence before it relates to the applicant’s involvement in the Christian churches he claimed to attend and his relationship with his friend Peter. The Court notes, relevantly, as follows in that regard:
37.After his visa expired in May 2009 he did not approach the Department of Immigration. He said that he remained in Sydney, where he worked as a cleaner, until 2010. Whilst there, he met his friend Peter at a social event. He was unable to tell the Tribunal what Peter’s Chinese name is or what he was studying. Nevertheless, he states that he and Peter moved to Western Australia together in 2010.
38.The applicant states that he and Peter attended church together in Sydney, but he was unable to recall the name of the church or what type of church it was, including whether the church was Catholic or Protestant or any sub−category of Protestantism.
39.The applicant states that he also attended church with Peter in Western Australia. Again, he was unable to identify the church or what type of church it was. He said the church was in the suburb of Wilson, but that he couldn’t remember what street it was on, because he had only gone there once.
40.When asked about his current church, he said it had no fixed address and no name and was referred to as the Chinese church. He said he sometimes went weekly or fortnightly, depending on when the gatherings were scheduled. I asked whether there were not set times for services, such as a certain time on Sunday morning. He then said that there were regularly scheduled services but he was not always available to attend.
41.I asked him the name of the church priest and in response he submitted two documents to the Tribunal. The first was a 2001 Certificate of Incorporation for “The Assembly in Perth Inc.” The second was an unsigned and poorly presented letter, which was not on letterhead, from a person named “Abel” who wrote that the applicant had been baptised on 27 November 2016 at the Bentley Meeting Hall and had been a regular attendee of the church, known as the Assembly in Perth, since that time.
42.The second document was problematic in that it appeared to contradict the applicant’s assertion that there was neither a fixed address nor a fixed name for the church. Additionally, that document had the look of one hastily composed in a word processing program without any of the hallmarks of his provenance or official nature.
43.In summary, the applicant has claimed to have attended “The Assembly in Perth” for about two weeks, subsequent to his baptism in that church, and a church in Wilson on one occasion, as well as a church in Sydney. He said he had attended “many others” but was unable to specify them.
44.I asked the applicant to explain why he would not attend a registered church upon his return to China. He said that there was no freedom in registered churches.
The Tribunal asked the applicant for more details about his knowledge of his church, the “Local Church” (referencing at footnote 2 of paragraph 49 in its written decision the Department of Foreign Affairs and Trade Thematic Report, Unregistered Religious Organisations and Other Groups in the People’s Republic of China, 3 March 2015 at paragraph 3.33):
45.I asked the applicant to explain why his church, the Local Church, was particularly problematic for the Chinese authorities, given that there were many kinds of unregistered churches. He reiterated that his church was a Local Church and was unregistered.
46.I asked the applicant what his church taught. He said they were taught to love Jesus.
47.I asked the applicant if there was some way that people in his church worshipped that was different from people in other churches. He said they sometimes shared meals together.
48.I asked the applicant if he had heard of a person named Changshou Li. He had not. I asked if he had heard of Witness Li, and he said he had not.
49.I note that worshippers of the Local Church, which is said to be considered to be a cult by Chinese authorities, are pejoratively referred to as “Shouters”. This designation is said to be made because of the worshippers’ habit of shouting whilst stomping their feet. Changshou Li was a student of the founder of the Church, Watchman Nee. Known as Witness Li, he moved from China to Taiwan then to the United States and was said to have introduced the church to China in 1979. Witness Li argued that the Local Church was the only true church. The church believes in speaking in tongues and that it can save people by making them say “O Lord” three times.
50.I asked the applicant to clarify what he knew of his friend Peter’s role in his church in China. The applicant said he did not know and could not remember if Peter’s mother had told him about that.
51.I asked the applicant to explain what he knew of Peter’s problems with the authorities after his return to China. The applicant said that Peter was detained six or seven days, then was released by the police with a warning and a fine. In response to my questions, the applicant said that Peter had not gone to court and was not mistreated or harmed in police custody.
52.I asked the applicant about his own family’s involvement with the Local Church before the applicant came to Australia. He said that the church gatherings were held in people’s homes and that it changed from home to home. A gathering had been held at his family home, he said.
(Citations removed)
The Tribunal then asked the applicant to discuss his and his family’s involvement with the Local Church in China and explain why he feared harm in China:
53.In response to my questions, he said that he had had no special role in his church in China before he came to Australia, but he thought his parents might have had, acknowledging that he did not actually know that. He believed that this might also have been true of his sister who preceded him in coming to Australia on a student visa in 2006.
54.He reiterated that his parents had been arrested because of their church activities on one occasion prior to his arrival in Australia. They were detained for several days, then released. He thought that they might have been detained on one occasion since he has been in Australia.
55.The applicant said that his parents” (sic) first arrest was “several years” before either he or his sister were sent to Australia on student visas “for their protection”.
56.The applicant did not assert that his family had experienced any other difficulties because of their religion.
The applicant was then asked why he had taken so long to apply for a protection visa after arriving in Australia:
57.I asked the applicant why, if he was sent to Australia for “protection”, he did not claim protection when he arrived. He said that it was because he had a student visa.
58.I asked the applicant why he did not claim protection when his student visa expired. He said that he had always hoped to return to study.
59.I note that the applicant was in Australia for seven years before he made an application for a protection visa and that he was without any visa for five of those years.
The Tribunal then articulated its Findings and Reasons at paragraphs 60–77 in its written decision (deciding, overall, at 78, to affirm the delegate’s decision not to grant the applicant a protection visa).
The Court notes, in particular, the Tribunal’s findings in relation to the evidence before it as follows:
63.The Tribunal notes the applicant’s delay of seven years prior to making a protection visa application. The Tribunal noted that the events forming his claims occurred, on his evidence, several years prior to 2006. The Tribunal does not accept the applicant’s explanations of why he did not earlier seek protection as logical or rational.
64.With respect to the effect Peter’s alleged arrest had in prompting the applicant to seek protection, the Tribunal does not accept that the applicant’s account relating to Peter in several important respects. The applicant was unable to give much detail about Peter, a man from his home province who he claims to have known for more than four years and with whom he moved interstate. Specifically, he did not know Peter’s Chinese name or what Peter had been studying.
65.I have also had consideration to what is said to have happened to Peter after he returned to China, noting he was said to have been arrested, held for six or seven days, not mistreated, before being fined, warned and released. It is difficult to reconcile this account with the applicant’s statement that he was “shocked” at what had happened to Peter, particularly considering the assertion that the applicant’s own parents had also been arrested, held and released.
66.I draw an adverse inference from the fact that the applicant did not lodge a protection visa application until he had run out of other options and I note that the stated triggers for protection occurred prior to 2006. I make adverse credibility findings based on his delay in seeking protection.
67.The applicant claims that he will be persecuted if he returns to China because of his past and present involvement in the local church. The harm he fears is, it is claimed, similar harm to that which allegedly befell his friend Peter and which allegedly befell his parents more than ten years ago − that is, arrest, detention for a few days, warning and fine, before being released. If accepted, this harm does not, in the view of the Tribunal, amount to serious harm as set out by section 91R(2).
68.The Tribunal notes that the applicant was able to provide only scant evidence of his past involvement and current involvement in the Local Church or Assemblies or Shouters. He was unable to identify the man said to be critical to establishing that church in China. He was unable to identify any belief or practices that set the Local Church apart from other unregistered churches. He was unable to say whether the church he belonged to was Catholic or Protestant. Based on the evidence before me, I do not accept that he is an adherent of the Local Church, Assemblies or the Shouters, or any other term that might be used to refer to this religious group.
69.The applicant confirmed that he neither he (sic) or his sister had any difficulty obtaining a Chinese passport or leaving the country in 2006 and 2007. Had the Chinese authorities any interest in the applicant’s family, it is likely that the Chinese authorities would have prevented the issue of the passports and/or their departure from China.
70.The Tribunal did not accept as credible the applicant’s claims for protection.
71.The Tribunal does not accept that the applicant has a well-founded fear of serious harm, from the Chinese authorities, or anyone else, because of his family’s involvement with the local church more than ten years ago.
72.Given the applicant’s limited involvement with the Assemblies in Australia and limited knowledge of their religious beliefs, the Tribunal does not accept that the applicant will involve himself with the Local Church upon his return to China. It follows that the Tribunal does not accept the applicant has a well−founded fear of serious harm from the Chinese authorities, or anyone else, due to his religious beliefs.
The Tribunal then concluded as follows:
73.As the Tribunal is not satisfied that the applicant has a well-founded fear of persecution if he were to return to China, the Tribunal finds that he is not a person who has a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future, and is not a person to whom Australia has protection obligations under the Refugees Convention.
74.Likewise, for the same reasons, the Tribunal is not satisfied that it has 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.
75.For the above reasons, I am therefore not satisfied that the applicant has a well−founded fear of being persecuted for a Convention reason in China. Hence, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and the applicant therefore does not satisfy the criterion in s.36(2)(a).
76.As I have not accepted that the applicant faces significant harm in India (sic), I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India (sic), there is a real risk that he will suffer significant harm. Thus, I am not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa).
77.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
The Court notes the Tribunal’s use of the “India” (rather than “China”) in the Tribunal’s reasons at paragraph 76 above. Although not specifically raised by the applicant as an issue before this Court, this is discussed further below.
What Amounts to Jurisdictional Error?
The applicant must demonstrate that the Tribunal’s decision was affected by jurisdictional error. The possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198].
b)Where the decision maker ignores relevant material: Craig at [198].
c)Where the decision maker relies on irrelevant material: Craig at [198].
d)Where the decision maker fails to follow mandatory procedures: SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208].
e)Where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22].
f)Where the decision maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17].
g)Where the decision is illogical, irrational or unreasonable: see Minister for Immigration v SZMDS (2010) 240 CLR 61 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44].
In effect, the applicant has attempted to address what the Tribunal “did wrong” in the six grounds of review outlined in his application for judicial review.
Did the Tribunal Fall into Jurisdictional Error?
Unfortunately, no written submissions were received from the applicant in relation to his six grounds of review. The Court explained to the applicant what the Court can and cannot do. It was explained to him that this Court cannot undertake what is referred to as a merits review. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
The applicant was referred to the Minister’s submissions in relation to his six grounds of review and asked to elaborate orally to the Court what errors he believed the Tribunal made. Unfortunately, the applicant chose not to elaborate or provide any more detail.
Ground 1
“I don’t think DIBP and AAT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.”
In relation to Ground 1 of the applicant’s application for judicial review, the Minister contended as follows in written submissions to the Court dated 10 April 2018:
25.By the applicant’s first ground of review, he appears to be asserting that the Tribunal acted unreasonably as it failed to consider the applicant’s commitment to Christianity, his background and his religious practice in China and Australia.
26.The Tribunal set out the applicant’s claims in relation to his religion and religious practice in China and Australia in detail at [38]-[48] and [52]-[56], including documents the applicant provided in support of his claims.
27.The Tribunal assessed those claims and found that the applicant had limited involvement with the Assemblies in Australia and limited knowledge of their religious beliefs, and it did not accept that the applicant would involve himself with the Local Church upon his return to China. The Tribunal did not accept the applicant had a well founded fear of serious harm from the Chinese authorities, or anyone else, due to his religious beliefs: [72].
…
29.Further, the Tribunal set out at [63]-[69] the basis for its findings. These paragraphs demonstrate an evident, transparent and intelligible justification for the Tribunal’s decision: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45]. Its decision was within its ‘area of decisional freedom’: Li at [28], [66], [105]; Singh at [44]. As such, the Tribunal’s decision was not legally unreasonable.
30.The Tribunal’s decision was also not illogical or irrational in the sense described in Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130]. A claim of illogicality or irrationality can only be made out if it can be demonstrated that the Tribunal formed a view that no rational or logical decision maker could have arrived at on the same evidence: SZMDS at [130]. The Tribunal’s decision in this matter was formed on a rational basis.
(Citations removed)
The Minister’s submissions were translated for the applicant. He was asked to comment. Regrettably, he chose not to do so, asking only that he be given more time to gather evidence. That request was denied. The Court finds that the applicant has had a considerable period of time within which to prepare for the hearing of this matter. His application was filed in this Court on 9 January of 2017. He was advised on 29 March 2017 that he was entitled to file additional affidavits and submissions. He chose not to do so. This matter was heard in this Court on 1 May 2018. That means the applicant had more than a year to seek legal assistance and prepare for his hearing before this Court. In the circumstances a request on the day for more time is unreasonable and denied.
It is not entirely clear what the applicant is referring to when he says the Tribunal decision was not fair and reasonable. On one level, it is arguable that what the applicant seeks is for the Court to undertake a merits review of the Tribunal’s findings. He would, it seems, like this Court to review the material that was before the Tribunal and come to a different conclusion. This Court cannot do that. It cannot review the merits of the Tribunal’s decision or determine the applicant’s claims for a protection visa. As outlined in Minister for Immigration and Ethnic Affairs v Wu Shian Liang & Ors (1996) 136 ALR 481 at 491:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
In relation to the applicant’s claims the Tribunal failed to consider his commitment to religion, ignored his background and the evidence relevant to his practice as a Christian in China and Australia, the Court does not accept that any jurisdictional error arose here.
To the extent that the applicant is claiming that the decision is unreasonable, illogical or irrational, the Court is guided by the principles outlined in Minister for Immigration v SZMDS (2010) 240 CLR 61 (SZMDS) at [131], as follows:
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court also notes the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26]–[28], as follows:
[26] The rationality required by “the rules of reason” is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.
[27] In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:
“If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.
[28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
(Citations removed)
Finally, the Court notes the decision in Minister for Immigration v Singh (2014) 231 FCR 437 at [44] as follows:
[44] In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 ; 266 ALR 367 ; 115 ALD 248 ; [2010] HCA 16 at [39] per Gummow ACJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):
It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].
Having reviewed the Tribunal’s decision, the Court does not find that the Tribunal’s decision was unreasonable, illogical or irrational or that any jurisdictional error of the sort alleged here occurred. The Tribunal’s findings were open to it on the evidence. The Tribunal did not fail to consider any of the applicant’s claims or any relevant information. The Tribunal clearly set out the basis for its findings. The Tribunal’s decision was not legally unreasonable. It cannot be said that the reasons advanced by the Tribunal are based on irrelevant considerations or fail to take into account relevant information.
In this regard, the Court notes the Tribunal’s use of the word “India” at paragraph 76. The applicant made no comment in relation to this point. Clearly, the word “India” should read “China”. Clearly, that was what was intended. Read in context, the Court finds that this error represents unfortunate (arguably undisciplined) writing on the part of the member in question. It does not, however, point to any reliance on incorrect or irrelevant information.
Overall, the Tribunal looked at the evidence it had before it and did so exhaustively. A complete analysis was provided. The Tribunal carefully considered the facts of the case, the legislation it was required to examine and all evidence provided by the applicant. It considered the relevant country information and made adverse credibility findings on the basis of the applicant’s almost complete lack of knowledge the church he claimed to belong to. The applicant was provided every opportunity to present evidence and the procedures used in that regard were fair and reasonable. The methods used and the analysis provided by the Tribunal in relation to this matter is unimpeachable.
Ground 2
“DIBP and AAT failed to prudently consider my risk due to my commitment of paralysing (proselytising) if I return to origin.”
The Court agrees with counsel for the Minister that the applicant is arguing in Ground 2 that the Tribunal failed to consider a claim that he would suffer harm as a result of his commitment to proselytising upon his return to China.
In relation to Ground 2 the Minister contended:
34.… the claim … was captured by the Tribunal’s finding of greater generality at [68] where the Tribunal stated that it did not accept the applicant’s claim that he was an adherent of the Local Church, Assemblies or the Shouters, or any other term that might be used to refer to this religious group, let alone any claim that he may become involved in proselytising. Further, the Tribunal found that the applicant had limited involvement and limited knowledge of religious belief, and therefore commitment, to his claimed religion: [72]. As a result, the Tribunal did not accept that the applicant would involve himself with the Local Church upon his return to China: [72].
35.These findings were open to the Tribunal. The Tribunal did not fail to consider the applicant’s risk upon returning to China.
The Court agrees with the Minister’s submission in this regard. The Court does not accept that the Tribunal failed to examine what harm would arise if the applicant returned to China because he would promote or attempt to convert others to his religious beliefs if he returned to China. To begin with, there was simply no evidence that the applicant intended to proselytise in China. Nor, on the Tribunal’s assessment of the evidence, was it probable that the Chinese authorities would view the applicant as someone wanting to proselytise. That is made clear in the Tribunal’s rejection of the applicant’s participation in the Local Church and the likelihood of him practicing as a member of that church if returned to China, as follows:
68.The Tribunal notes that the applicant was able to provide only scant evidence of his past involvement and current involvement in the Local Church or Assemblies or Shouters. He was unable to identify the man said to be critical to establishing that church in China. He was unable to identify any belief or practices that set the Local Church apart from other unregistered churches. He was unable to say whether the church he belonged to was Catholic or Protestant. Based on the evidence before me, I do not accept that he is an adherent of the Local Church, Assemblies or the Shouters, or any other term that might be used to refer to this religious group.
69.The applicant confirmed that he neither he or his sister had any difficulty obtaining a Chinese passport or leaving the country in 2006 and 2007. Had the Chinese authorities any interest in the applicant’s family, it is likely that the Chinese authorities would have prevented the issue of the passports and/or their departure from China.
….
72.Given the applicant’s limited involvement with the Assemblies in Australia and limited knowledge of their religious beliefs, the Tribunal does not accept that the applicant will involve himself with the Local Church upon his return to China. It follows that the Tribunal does not accept the applicant has a well−founded fear of serious harm from the Chinese authorities, or anyone else, due to his religious beliefs.
No jurisdictional error occurred in relation to claim 2.
Ground 3
“AAT failed to consider my statements provided in supporting my claim as a whole.”
In relation to Ground 3 the Minister contended:
36.In this ground, the applicant asserts that the Tribunal failed to consider the applicant’s statements provided in support of his claim as a whole.
37.The Tribunal referred to the applicant’s statement submitted as part of his application for a protection visa at [25] and a reference from ‘Abel’ from the Assembly in Perth Inc at [41]. The applicant did not provide any other statements.
38.The Tribunal considered the protection claims raised in the applicant’s statement and at the hearing at [63]-[69] and the reference from ‘Abel’ at [41]-[42]. Therefore, it cannot be said that the Tribunal failed to consider the applicant’s statements.
(Citations removed)
Again, the applicant offered no further comment in this regard.
In relation to Ground 3 the Court finds that no jurisdictional error occurred. It is clear on the evidence that all statements filed by the applicant were assessed and weighed accordingly. It is arguable that when stating that the Tribunal did not “assess” his statements, what the applicant means is that the Tribunal did not “believe” the statements provided. That may well be the case, but that is not evidence of jurisdictional error. The Tribunal assessed, as it was entitled to do. It made credibility findings after weighing up all of the evidence before it and ultimately determined that the evidence as a whole did not support the applicant’s claims for protection. The applicant may not agree with the Tribunal’s assessment of the evidence before it, but that assessment and the conclusions drawn from the evidence as whole were entirely open to the Tribunal.
Ground 4
“I am a Chinese citizen and have faithful and committed Christian faith. I have strong fears by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.”
This ground does not indicate what sort of error the applicant believes the Tribunal engaged in. It only provides information in relation to the applicant’s citizenship, religion and his fears of persecution. This evidence was considered by the Tribunal in detail at paragraphs [64]-[72] in the Tribunal’s written decision. No error can be seen to have occurred here. No relevant information, including country information, was overlooked. No irrelevant information was relied on. The Tribunal assessed the evidence, rejected the applicant’s evidence that he was an active member in the Local Church and ultimately concluded that he would not face harm if returned to China. Those findings were entirely open to the Tribunal on the evidence canvassed above.
Accordingly, ground 4 also fails.
Ground 5
“I have been actively involved in church actives. My action and religious performance has been evidenced by church elder with reference.”
In relation to Ground 5 the Minister contended:
41.In this ground, the applicant appears to be asserting that he is involved in church activities and this has been evidenced by a reference from a church elder.
42.As explained above, the Tribunal referred to a reference from ‘Abel’ from the Assembly in Perth Inc and considered it at [41]-[42]. The Tribunal considered the applicant’s claims in relation to his church activities at [38]-[40], [43]-[48] and [52]-[54]. However, the Tribunal found that the applicant had limited involvement with the Local Church or Assemblies and was not an adherent to either group: [68], [72]. The Tribunal was entitled to make these findings.
(Citations removed)
Again, the applicant offered no further details in relation to this ground of review.
In relation to Ground 5 the Court agrees with the Minister’s submissions. It is arguable that on one level the applicant is again asking the Court to review the evidence before the Tribunal and come to a different conclusion. For the reasons outlined above at paragraph 34, this Court cannot engage in merits review. To the extent that the applicant is suggesting that the Tribunal did not assess evidence about his church involvement, the Tribunal clearly did so. It also referred to a reference from Abel. The Tribunal then weighed up all of the evidence before it and ultimately rejected the suggestion that this evidence supported the applicant’s claim for protection. No error of any sort can be seen here.
Accordingly, Ground 5 also fails.
Ground 6
“AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence”
In relation to Ground 6 the Minister contended:
43.By this ground the applicant asserts that the Tribunal unreasonably suspected the truthfulness of the applicant’s claims ‘just because of the absence of the evidence’.
44.The Tribunal was entitled to suspect the truthfulness of the applicant’s claims based on whether or not there was evidence to support the applicant’s claims and it was also entitled to give such weight to the evidence proffered as it thought appropriate in all the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
45.Further, it is for the applicant to advance whatever evidence or argument he wishes to advance in support of his contention that he is entitled to the visa: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. It is not for the Tribunal to make the applicant’s case for him: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170.
The Court agrees. It is not entirely clear what the applicant means in relation to Ground 6. Regrettably, he offered no further details in relation to this ground of review. There is no evidence that the Tribunal ignored relevant material. It assessed the evidence before it and ultimately rejected the applicant’s version of events. It was entitled to do so. To the extent that other, arguably relevant, evidence was not put to the Tribunal, that is a matter for the applicant. The applicant was provided ample time to provide evidence to the Tribunal. He chose not do so. No jurisdictional error occurred here because of that failure on his part.
In relation to Ground 6 the Court finds there to have been no jurisdictional error.
Conclusion
Having assessed all of the applicant’s grounds of review claims, the Court does not accept that the Tribunal engaged in any jurisdictional error.
The application for judicial review is therefore dismissed.
The court will hear the parties as to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 17 May 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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