ACZ18 v Minister for Home Affairs
[2019] FCCA 2021
•24 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACZ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2021 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether the Tribunal failed to properly consider the applicant’s bible studies – whether the Tribunal wrongly concluded that documents were fabricated to enhance visa application – applicant claims jurisdictional error – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5J |
| Cases cited: WZAQB v Minister for Immigration & Citizenship [2012] FMCA 688 |
| Applicant: | ACZ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 79 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 26 June 2019 |
| Date of Last Submission: | 24 July 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 24 July 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $4,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 79 of 2018
| ACZ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is a Chinese national. On 11 January 2014, the applicant was granted a 12 month visitor visa to Australia. The applicant arrived in Australia on 6 February 2014 and then returned to China on 14 February 2014 (the first visit). The applicant re-entered Australia on 4 March 2014 and, again, returned to China on 24 April 2014 (the second visit). The applicant last came to Australia on 11 October 2014 (the third visit) and lodged an application for a protection visa on 8 January 2015.
On 14 January 2016, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the applicant’s application for a protection visa. The applicant then sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).
The applicant attended the Tribunal hearing on 29 November 2017 and gave evidence in support of her claim. On 22 December 2017, the Tribunal affirmed the Minister’s decision to refuse the protection visa. The applicant now seeks judicial review of the Tribunal’s decision.
Administrative Appeals Tribunal Decision
The applicant’s claims are set out in paragraphs 12 to 15 of the Tribunal’s decision. The applicant stated that on her first visit to Australia, she started to attend Christian church activities. After returning to China on 24 April 2014, the applicant attended church activities in Shanghai. Later on, the applicant organised church activities at her home. The applicant claimed she was detained by police for three days in September 2014, presumably, due to church activities. The applicant was fired by her employer. People still came to her place, so the applicant kept on having activities at her home. The applicant claims that on 7 October 2014, a summons was received by her family for her to attend the local police station. The applicant departed China two days later.
The applicant provided documents, including a Certificate of Custody from the Shanghai City Public Security Bureau (see page 55 of the Court book) and a document identified as a Certificate of Summons (see page 56 of the Court book). The applicant also provided, subsequent to the Minister’s decision, a baptismal certificate and document addressed to the Chinese Theological College in Australia (see page 116 of the Court book).
At paragraph 15 of its decision, the Tribunal identified as issues, whether the applicant was a credible witness by considering whether she had suffered harm in China due to her religious beliefs and if subsequent conduct in Australia was done in bad faith and should be disregarded.
At paragraphs 16 to 20 of its decision, the Tribunal considered the applicant’s claim to be a Christian. The Tribunal concluded that her involvement in Christianity was done in bad faith in order to ground a claim for a protection visa. The Tribunal did not accept the applicant’s account of how she became involved with Christianity in China through her work at an aeronautical company where she, and other employees, were required to attend weekly Bible study classes. The Tribunal struggled to accept that the owner of the business would be willing to take such a risk. At paragraph 21 of its decision, the Tribunal did not accept that the applicant was able to leave China unhindered when there was an active police summons in existence for her to attend a police station.
At paragraph 23 of its decision, the Tribunal noted that document fraud in China is widespread and gave the documents at pages 55 and 56 of the Court book, being the Certificate of Summons and the Certificate of Custody, no weight, as the Tribunal did not accept that the applicant practiced as a Christian in China.
Grounds of Appeal
The application before the Court has two grounds of appeal. They are set out as follows:
1)The Administrative Appeals Tribunal has great difficulty in accepting my previous boss conducted weekly Bible studies at workplace. But it is true. In Shanghai, the most modern city in China, it happened.
2)For the Certificate of Custody and Certificate of Summons I provided, the decision letter said; ‘The Tribunal notes that document fraud is widespread in China, and the Tribunal gives no weight to these documents’. I believe the Tribunal was wrong. The Tribunal did not check if my documents were genuine or not, but assumed they were a fraud and gave no weight to them.
The matter first came before the Court on 26 June 2019. A number of issues were raised with the solicitor representing the first respondent, and at the request of the solicitor for the first respondent, the matter was adjourned until today, when supplementary submissions were provided addressing the concerns that were raised, along with an affidavit which attached the country information that relates to China.
Applicant’s Submissions
The applicant was self-represented and initially made no submissions. Today, the applicant said that the purpose of why she came to Australia initially, was that she came for a month to see what the attitude was in relation to faith in Australia. The applicant told the Court that the authorities in China had been harassing her mother. As the applicant’s visa was about to expire, that being her visitor’s visa, she had no choice but to apply for a protection visa. The applicant said she had respect for the laws in Australia and it was unfair to determine fraud in her case based on other cases. The applicant said that, as a Christian, she had documents to prove her case. The applicant suggested the other side failed to get evidence and she questioned the legality of the evidence that they relied upon.
The applicant suggested that the evidence she had provided was firsthand, and the respondent’s evidence was circumstantial, and that it was unfair to use circumstantial evidence against her.
First Respondent’s Submissions
In the initial written submissions, the first respondent noted that the only order sought was for the decision of the Tribunal to be quashed. ‘No writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth’ as provided by the High Court under paragraph 75(v) of the Commonwealth Constitution. The first respondent suggested that the applicant’s case was liable to be dismissed as incompetent, and referred to WZAQB v Minister for Immigration & Citizenship [2012] FMCA 688 at paragraphs [28] to [33].
The first respondent submitted that the applicant had failed to properly invoke the Court’s jurisdiction. This issue was brought to the applicant’s attention and as she was unrepresented and had clearly not had legal advice in drafting her grounds of appeal, in the interests of justice, leave was granted to amend her application to include writs of mandamus prohibition or injunction.
Consideration
In relation to the grounds of appeal, it is fair to say that, to a large extent, they are merely assertions that question the merits of the decision of the Tribunal. It is not the role of this Court to engage in merits review. Rather, it can only overturn a decision of the Tribunal where it finds jurisdictional error. Jurisdictional error may include a finding that the decision of the Tribunal was so unreasonable, or that it fell into the category of legal unreasonableness. Other words that had been used for that, is that it is irrational or illogical. It can only be the case if the Court finds jurisdictional error, which it can quash the decision and, even then, it can only refer it back to the Tribunal for rehearing.
Ground 1 takes issue with the Tribunal’s findings and reasons regarding the applicant’s attendance at weekly Bible studies at her place of employment in 2009 and 2010. It is clear that the Tribunal considered the applicant’s claim, but found at paragraph 19 of its decision that it struggled to accept that a business owner would hold Bible study meetings in circumstances where the risk to the employer and his business of authorities discovering this practice, would have had dire consequences for the business operations.
The Tribunal noted that the applicant did not engage in any Christian activity, apart from the workplace Bible classes from August 2010 until she came to Australia in February 2014. It is not for the Tribunal to prove the applicant’s case. That is a matter for the applicant. The Tribunal is also not required to accept the assertions of the applicant on face value, but is entitled to question them. The first ground of appeal, in my view, simply seeks to challenge the Tribunal’s factual findings. It is not for the Court to engage in merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
I have carefully looked at the factual findings of the Tribunal. The level of scholarship in the decision leaves much to be desired. There are no references to country information. There are simply bold assertions that document fraud is widespread and that there was a comprehensive system of controls over entry and exit into China which, in the Tribunal’s view, would mitigate against the applicant being able to leave the country while there is an active summons for her to attend a police station.
Counsel for the first respondent has provided me with country information annexed to the Affidavit of Ada Oi-Yee Wong. It runs to some 456 pages. That country information indicates, for example, at page 23 paragraph 5.16, that there is a centralised system with name-matching alert capabilities and that security monitoring capabilities at airports are comprehensive. At page 24, paragraph 5.26 of the same document, points to the fact that there is extensive document fraud with documents being used in support of visa applications such as hukou registration, which as I understand, is residential verification registration, proof of employment, academic transcripts, banking statements and ID cards.
The Department of Foreign Affairs and Trade (“DFAT”) assesses these documents as relatively easy to produce and are commonly used in visa applications. DFAT has been told of the existence of sophisticated syndicates that serve as call centres set up specifically to provide targeted background stories in support of fraudulent documentation used in visa applications. At page 146 of the country information, there is a reference in paragraph 18.28 that the British Broadcasting Corporation (“the BBC”) reported on 17 September 2011, that there is a conservative figure of 60 million Christians within China and that there are more Chinese at church on a Sunday than in the whole of Europe.
That of itself does not mean that these activities are accepted without demurrer by the Chinese Government. There is also reference at page 310 of the country information to the Immigration Review Board of Canada documentation which indicates that there again is widespread identity documents fraud and other document fraud in China. It would have been useful and indeed preferable, had relevant references been made in the decision of the Tribunal to this source documentation. However, I need to look at the matter not as to whether or not the decision of the Tribunal is as legally pristine as I might wish it to be. Rather, I need to look at it from the point of view of whether or not a jurisdictional error has been made out.
The standard for unreasonable, illogical or irrational finding is very high. When I look at the decision as a whole, I note the scepticism, first of all, in relation to how it is that the applicant became aware of the Christian faith. It is clear that all subsequent claims were then considered, but were discounted. There is nothing unreasonable, illogical or irrational in the finding. I find no jurisdictional error in relation to Ground 1.
Ground 2 takes issue with the Tribunal’s rejection of the Certificate of Custody and Certificate of Summons. The Tribunal gave no weight, and as I said, it found document fraud widespread in China. A rejection of corroborative material on the basis of the applicant’s credit does not amount to an error of law (see Minister for Immigration v SZMOK (2009) 257 ALR 427 at [59]). It is a matter solely for the Tribunal as it found that document fraud was common and it was within its discretion to give the documents no weight (see Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]).
It is clear to me that the material was considered and the factual findings were open to the Tribunal. The factual findings were not such that they constituted illogical, unreasonable or irrational findings. I am not satisfied that Ground 2 demonstrates any jurisdictional error on the part of the Tribunal.
The Tribunal was also entitled to reject, as it did, the material as to subsequent behaviour in Australia under s.5J(6) of the Migration Act 1958 (Cth). Whilst it is interesting that the reliance by the applicant on some material that pre-dated her application for a protection visa, the subsection indicates that:
Any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
That is a very high burden that is placed on any applicant. I am also satisfied that no other jurisdictional error is apparent from the decision.
Conclusion
Accordingly, I am satisfied that no jurisdictional error has been made out and the application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 19 August 2019
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