ADJ16 v Minister for Immigration
[2016] FCCA 3326
•28 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADJ16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3326 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal considered the applicant’s claims about his involvement in Christian activities in Australia – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider the applicant’s fear of harm upon return to China – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 36(2), 476 |
| Cases cited: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2012] FCAFC 71 |
| Applicant: | ADJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 100 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 28 November 2016 |
| Date of Last Submission: | 28 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Mr R White, Mills Oakley Lawyers |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 100 of 2016
| ADJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 9 April 1997. On 10 June 1997 he applied for a protection visa. However, on 16 June 1997 a delegate of the Minister for Immigration and Multicultural Affairs made a decision not to grant that visa. The applicant applied to what was then the Refugee Review Tribunal[1] for review of the delegate’s decision, and the Tribunal affirmed the decision of the delegate after the applicant did not attend the hearing which had been scheduled.
[1] On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
Some considerable time passed as the applicant remained unlawfully in Australia before he applied for a second time for a protection visa on 3 December 2013. On 5 June 2014 a delegate of the Minister decided not to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal for review of that decision. The applicant attended a hearing that took place over the course of two days on 9 and 11 December 2015, at which he and a number of other witnesses gave evidence in support of his claims. On 21 December 2015 the Tribunal affirmed the decision of the delegate. The applicant now seeks judicial review of the second Tribunal decision.
In order to succeed, he must establish that that Tribunal’s decision was affected by jurisdictional error. That is, an error that affected the Tribunal’s exercise of power and in particular affected the way in which it carried out its review of the delegate’s decision.
In order to understand the issues that arise, it is first necessary to consider the claims made by the applicant in support of his protection visa applications. These claims were summarised by the Tribunal in respect of his first protection visa application at [16] of its reasons:
Claims made by the applicant in his first application for protection
[16]In the written statement provided to the Department on 10 June 1997 for his first application for protection, the applicant claimed he was a member of the 1989 pro-democratic movement and was involved in protests, secret meetings and exchange of information. He joined the Democracy Alliance of Tian Jin City in 1991 and actively participated in their activities and meetings. He “luckily avoided persecution” before he travelled to Australia. One month after his arrival the police visited his wife in China and threatened her, trying to force the applicant to return. The applicant claimed that if he returned to China he would be investigated, his political involvement will become known and he and his family will be persecuted.
The claims made in support of the second application for protection visa were summarised by the Tribunal at [17] of its reasons:
Claims made by the applicant in his written statement to the Department for his second application for protection
[17]In the written statement provided to the Department on 3 December 2013 for his second application for protection, the applicant claimed the following;
•when he was a child both his parents (who were doctors) were persecuted, his father was beaten and in 1970, his father was killed after being tortured;
•on 4 June 1989 he joined the pro-democracy movement protests and was taken into police custody and constantly harassed by police until he departed China to come to Australia;
•in early 1998 he started attending St Thomas Anglican church in Auburn and became a Christian;
•he could not return to China because of his historical problems and his name is on “the blacklist” and he would be detained.
Claims made by the application in his interview with the delegate
•the applicant claimed he was arrested in approximately August 1999 when 15-20 policeman and local officials came to his home. He spent more than a month in police detention before being sent to a labour camp for 16 months;
•he was arrested by police in 1993 and detained for two weeks and again in 1995 and detained for two months;
•he claimed he was “just detained, not sentenced” which is how he was able to obtain a passport and exit permit to leave China in December 1996;
•he claimed he could not attend the registered Christian churches in China because “Jesus cannot accept being under the communists” and he disagreed with the restrictions to evangelising to or baptising those under 18 years.
It is important to note that the second protection visa application was only able to be made as a consequence of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2012] FCAFC 71, and of the fact that in March 2012 a criterion was inserted into s.36 of the Migration Act 1958 (Cth) that had not been there when the applicant first applied for his protection visa. That criterion is known as the complementary protection criteria. However, as the applicant had already applied for a protection visa on the basis that he satisfied the definition of “refugee” in the Refugees’ Convention, he was not able to seek to satisfy the criteria for the grant of the visa a second time on the basis of that criterion. See Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 (“SZVCH”).
Tribunal’s decision
The Tribunal first considered the applicant’s claims concerning his past political activity. In this respect, it did not find him to be a reliable witness and did not accept his political activities, his subsequent arrest and detention by police or the physical mistreatment and detention in a labour camp. Essentially the Tribunal came to that view because the applicant’s evidence about those matters had been inconsistent and had changed over time. In light of that conclusion and country information concerning the circumstances of people who had been involved in pro-democracy activities, the Tribunal was not satisfied that the applicant was of adverse interest to the Chinese authorities, because of his participation in pro-democracy protests, or for any other reason at the time of his departure from China in 1996, or that he was currently of adverse interest to those authorities for such past participation. Therefore, the Tribunal found that there was no real risk that the applicant would suffer any serious harm on that basis if he returned to China now or in the reasonably foreseeable future.
The Tribunal then turned to consider the applicant’s claims arising from his practice of Christianity in Australia. The Tribunal accepted that the applicant was now a Christian and attended an Anglican church. It accepted that he would not participate in a Protestant church registered with the Chinese authorities and would probably attend an unregistered house or family church gathering of Protestant Christians. It accepted that he was likely to seek out a church similar to the one he attended in Australia where he would become part of a supported network of other church members. The Tribunal noted, however, information to the effect that the Chinese government did not fear small groupings but that it did not want large organisations of people that might become a force against it.
In light of the applicant’s lack of education in China, poor understanding of Christian tenets and knowledge of the Bible, the Tribunal was satisfied that the applicant would not be a leader, teacher or organiser of a church in China. The Tribunal also found that the applicant would not engage in public proselytising in China. For those reasons, and against the background of the country information considered by it, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there was a real risk the applicant would suffer significant harm on the basis of his actual or imputed Christian beliefs and practices. For those reasons, the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of a protection visa and so affirmed the delegate’s decision.
Consideration
There are five grounds in the application for review. The applicant has, to some extent, expanded upon and explained these grounds in written submissions filed on 19 May 2016.
Ground one
The first ground is that the Tribunal failed to exercise discretion and did not take into account all relevant considerations in making its determination; in particular the applicant’s claimed Christian activities in Australia.
The applicant gave further details of this ground in his written submissions. The applicant argued that the Tribunal investigated a huge portion of his first protection visa and jumped to the conclusion that he was not reliable, whereas he argued, the Tribunal should only examine the second protection visa application.
The first point to note in respect of this ground is that the Tribunal, in my view, did undertake a thorough review of the evidence relating to the applicant’s church activities in Australia. Indeed, as can be seen from the above summary of its reasons, the Tribunal accepted that evidence.
The second point to note is that while it is true that the Tribunal paid some regard to the claims and evidence put forward in support of the first application for protection visa, there is no prohibition on the Tribunal in doing that. Part of the reasons for the Tribunal rejecting the credibility of the applicant’s original claims was, as I have noted above, the change in the evidence given by the applicant about those matters. See in particular [28] of the Tribunal’s reasons. It is an essential part of the Tribunal’s function of review that the Tribunal have regard to all of the relevant material available to it. In this case the Tribunal had before it information concerning the applicant’s first protection visa application as well as the written application by the applicant to the Minister for personal intervention in his case. As the matters contained in those documents had potential relevance to the question of whether the applicant satisfied the complementary protection criterion in sub-s.36(2)(aa) of the Act, and the applicant appears not to have abandoned any reliance upon his previous political activities, the Tribunal was obliged to consider that material.
To the extent that the applicant now says that he only relied upon his Christian faith and practice in support of his protection application, then any impact in the Tribunal’s decision of his previous applications concerning his political activity had no impact upon the Tribunal’s decision. That is because, as I have noted, while the Tribunal rejected the political claims upon the basis of information about those matters previously given in the course of an earlier visa application, it did not rely upon them at all in respect of his Christian faith. The Tribunal instead accepted the applicant’s evidence about his Christian faith and otherwise only made findings in that respect based upon the evidence given by the applicant in support of that claim. For those reasons, the first ground in the application does not give rise to any jurisdictional error and is rejected.
Ground two
The second ground in the application is that the Tribunal denied the applicant procedural fairness. Once again, this ground is further particularised in the applicant’s written submissions. The applicant takes issue with a number of statements made by the Tribunal, including those at [23], [40], [42] and [63] of the Tribunal’s reasons. Leaving aside [42], each of the findings or statements of the Tribunal contested by the applicant were questions of fact with which the applicant merely expresses disagreement. As such, the applicant’s arguments rise no higher than an attack on the merits of the Tribunal’s decision and do not disclose any jurisdictional error. The attack on [42] is in a slightly different category. In [42], the Tribunal said “The applicant could not identify any doctrinal differences between the Three Patriotic Movement church and his own church.”
The applicant said that at the hearing before the delegate he was able to identify some differences between his own church and the Three Self Patriotic Church (TSPC) in China. However, the applicant agreed that the differences that he was able to articulate were referred to by the Tribunal in [42] of its reasons, namely, that the Chinese church did not allow baptism of people under 18 years or preaching to people under 18 years.
For that reason, while there is no evidence before the Court of what the applicant said to the delegate during the interview with the delegate, it is unnecessary to consider whether to allow the applicant to take steps for such evidence to be adduced. That is because, even accepting that it was given, as alleged by the applicant, the Tribunal was aware of and took into account that evidence. Perhaps more importantly, even if the Tribunal had made a mistake in respect of the applicant’s knowledge of the doctrines or the difference between the doctrines of the Chinese church and the Australian Anglican church which he attends, that would have had made no material difference to the Tribunal’s decision.
Critically in this respect, the Tribunal not only accepted the applicant’s adherence to the faith and practice of the Anglican Church in Australia, but also accepted that the applicant would not attend the registered Protestant Church in China, such as the TSPC. Rather, as I have already noted, the Tribunal found that the applicant would probably attend an unregistered house or family church gathering of protestant Christians. For that reason, even if there were a mistake made by the Tribunal in respect of the applicant’s evidence to the delegate, it would not amount to jurisdictional error on the facts of this case. For those reasons, I reject the second ground.
Ground three
The third ground is that there was no evidence to support findings pursuant to the first respondent’s consideration being taken of the factors raised by the applicant in the interview with the first respondent. It is not entirely clear what this means. If it is intended to be an attack on the decision of the delegate, then it must fail because this Court has no jurisdiction to deal with that decision. It is a primary decision and falls outside the scope of this Court’s power under s.476 of the Act. If it is intended to suggest that the Tribunal did not take into account what was said in the interview with the delegate, then that, too, must be rejected. The Tribunal referred, albeit it in summary form, to what was said in that interview at [17] in the last four dot points of its statement of reasons. For those reasons, ground 3 is rejected.
Ground four
Ground 4 alleges that neither the delegate, nor the Tribunal, fairly considered fact-finding in relation to the applicant concerning the degree of difference in the applicant’s participation and involvement in Christian activities. Once again, it is not precisely clear what that means. However, as I have noted on a number of occasions, the ground appears to overlook the fact that the Tribunal accepted the applicant’s Christian activities in Australia and based its conclusions as to what might occur in China upon what the applicant claimed to have done in terms of Christianity and Christian practice here. For those reasons, ground 4 is rejected.
Ground five
Ground 5 is that the Tribunal did not consider the serious harm which the applicant would face if he returns to China. There are two ways of reading this ground. The first, which is in line with the explanation given in the applicant’s written submissions, is that the applicant does not accept the Tribunal’s conclusion that the applicant would not face any harm upon return to China. That is an attack on the merits and beyond the proper scope of judicial review.
The second way of reading the ground in light of the words “serious harm” is that the applicant alleges that the Tribunal failed to consider whether the applicant satisfied the Refugee Convention criterion in sub-s.36(2)(a) of the Act. Understood in that way, the ground is inconsistent with the recent Full Court decision in SZVCH, namely, that because the applicant had earlier applied for a protection visa on the basis of the Refugee Convention criterion, the Tribunal was not entitled to consider whether that criterion was satisfied in respect of the subsequent protection visa application.
Conclusion
For all of those reasons, none of the grounds in the application are made out and the application must be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 21 December 2016
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