ACZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 178
•26 February 2020
FEDERAL COURT OF AUSTRALIA
ACZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 178
Appeal from: ACZ18 v Minister for Home Affairs and Anor [2019] FCCA 2021 File number: NSD 1269 of 2019 Judge: NICHOLAS J Date of judgment: 26 February 2020 Legislation: Migration Act 1958 (Cth) s 36(2) Date of hearing: 26 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 14 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Counsel for the Second and Third Respondent: The second and third respondent submitted save as to costs ORDERS
NSD 1269 of 2019 BETWEEN: ACZ18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
26 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
3.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)
NICHOLAS J:
BACKGROUND
This is an appeal from a judgment of the Federal Circuit Court of Australia (Judge Humphreys).
The primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the appellant a Protection (class XA) visa. Whether or not she should have been granted such a visa depended on whether she satisfied the criterion specified in s 36(2) of the Migration Act 1958 (Cth) (“the Act”).
The appellant is a Chinese national who first entered Australia on 6 February 2014 and then returned to China on 14 February 2014. She then re-entered Australia on 4 March 2014 and returned to China on 24 April 2014. She then re-entered Australia on 11 October 2014 and has remained here since. The appellant lodged her application for a protection visa on 8 January 2015.
The appellant was not legally represented before the primary judge or on the appeal. The notice of appeal filed by the appellant contains some general assertions that the primary judge made mistakes in its decision, but does not provide any indication of what those mistakes were. The appellant has not filed any written submissions in support of her appeal. When invited to make submissions with the assistance of an interpreter, she raised a number of general contentions relating to unfairness of the process in which she had been involved and contended that the Tribunal and the primary judge acted unfairly and without a proper basis for rejecting her claims.
THE TRIBUNAL’S DECISION
The appellant’s claim for protection appears in the Tribunal’s reasons for decision at [13] – [15]. In support of her application for a protection visa, she submitted some photographic evidence which was relied upon in support of her claim to be a Christian who had been involved in the Presbyterian Church in Australia and various other documents which were relied upon as corroborating her claim to be a Christian.
The Tribunal accepted that the appellant attended a particular church in Australia and that she was a member of the Chinese congregation. The Tribunal noted the appellant’s evidence in relation to those activities and also some corroborating evidence given by an elder of the congregation who confirmed that the appellant had been attending church regularly since November 2014 and participating in Bible studies on a Saturday there.
The Tribunal noted that the appellant had demonstrated a sufficient understanding of Christianity that was reasonable to expect of a person who regularly attended a Christian church. However, the Tribunal did not accept that the appellant was a genuine Christian and it found that her conduct in Australia was engaged in solely for the purpose of assisting her in making a claim for a protection visa. It found that she was not a genuine Christian and that she would not attend church or engage in other activities associated with Christianity if she was to return to China. On that basis, the Tribunal was satisfied that the appellant did not face a real chance that she would suffer serious harm if she were to be returned to China.
In evaluating the credibility of the appellant and her claims, the Tribunal said that it had great difficulty accepting the account given by the appellant as to how she first became involved with Christianity, which was said by her to have begun in China where she was involved in weekly Bible studies at a workplace. The Tribunal did not accept her account of her early involvement or explanation as to how she was introduced to Christianity. It rejected her evidence about her workplace Bible studies which were relied upon by her as explaining how she was first exposed to Christianity.
As the Tribunal explained, that left the appellant’s account of her exposure to, and practice of Christianity to one in which she attended church in Australia and enrolled in a theological college here in circumstances where there was no credible explanation for how she first became involved in Christianity other than that it be a calculated step to provide her with a basis for a claim for a protection visa. The Tribunal also referred to the fact that the appellant was able to travel freely to and from China using her own passport. It did not accept a claim by her that she had been detained by police for three days on 21 September 2014, nor did it accept the authenticity of a document relevant to that contention.
In the result, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under s 36(2)(a) of the Act. On that basis, it affirmed the decision of the delegate not to grant the appellant a protection visa.
THE PRIMARY JUDGE’S DECISION
The primary judge considered two grounds of review that were raised by the appellant. The first of these merely asserted that the Tribunal ought to have accepted that the appellant had been involved in weekly Bible studies at her workplace in China. That ground of appeal did no more than challenge the merits of the Tribunal’s findings in relation to that aspect of the appellant’s account of her involvement with Christianity.
The second ground of review that was relied upon by the appellant before the primary judge concerned the Tribunal’s finding that document fraud was widespread in China and that, on that basis, the Tribunal would give no weight to the certificate of custody and certificate of summons that were produced by the appellant in support of her claims. It was open to the Tribunal to make that finding and there does not appear to me to be anything irrational or illogical about it, particularly when the Tribunal’s assessment of that document is considered in the context of other issues raised concerning the credibility of the appellant’s account of her involvement with Christianity in China.
CONSIDERATION
The primary judge reviewed the decision of the Tribunal with a view to identifying any finding that might properly be characterised as unreasonable, illogical or irrational as would warrant the conclusion that the Tribunal’s decision was affected by jurisdictional error. His Honour was not satisfied that the Tribunal had made any finding that could be so characterised. I respectfully agree with his Honour’s reasons in that regard. The Tribunal upheld the delegate’s decision on the basis that it was not satisfied as to credibility of the appellant or the truth of the account given by her as to the circumstance in which she came to be involved in Christianity when in China or the motivation behind her involvement in Christianity in Australia.
There is no reason to think that the Tribunal’s decision was affected by jurisdictional error in any respect. Nor is there any reason to think that his Honour, in disposing of the appellant’s application for judicial review, himself made any error. On that basis, the appeal will be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 20 April 2020
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