AED16 v Minister for Immigration

[2017] FCCA 2104

FEDERAL CIRCUIT COURT OF AUSTRALIA

AED16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2104

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming fear of harm in China – applicants not believed – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 424A, 425

Cases cited:

Minister for Immigration v SZIAI (2009) 259 ALR 429

Minister for Immigration v Jia (2001) 205 CLR 507

Minister for Immigration v SZNVW & Anor (2010) 183 FCR 575

Re JRL; Ex parte CJL (1986) 161 CLR 342
SZBYR v Minister for Immigration (2007) 235 ALR 609

First Applicant: AED16

Second Applicant: AEE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 153 of 2016

Judgment of: Judge Driver

Hearing date: 1 September 2017

Delivered at: Sydney

Delivered on: 1 September 2017

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms C Saunders of DLA Piper

ORDERS

1. The application filed on 27 January 2016 is dismissed.

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 153 of 2016

AED16

First Applicant

AEE16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal, made on 4 January 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants, who are a husband and wife.  Background facts relating to their claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions, filed on 24 August 2017. 

2. The applicants are citizens of China who arrived in Australia on 23 October 2013 as holders of Tourist visas.[1]  The first applicant (applicant) is a male adult, and is the husband of the second applicant, a female adult.

   [1] CB 77.

3. On 22 January 2014, the applicants applied for a protection (Class XA) visa.[2]  The applicant claimed that they were members of the Local Church and feared harm on return to China for this reason.[3]  The second applicant did not put forward any claims of her own.

   [2] CB 1.

   [3] CB 35.

4. The application was refused by the delegate on 28 January 2015 who found that the applicants were not members of the Local Church in China.[4]

   [4] CB 76.

5. On 9 February 2015, the applicants applied to the former Refugee Review Tribunal for review of the delegate's decision.[5]  That Tribunal was amalgamated with the Tribunal on 1 July 2015.  The applicants appeared at a hearing on 17 September 2015.[6]  The Tribunal made its decision on 4 January 2016, affirming the decision under review.[7]

   [5] CB 93.

   [6] CB 132.

   [7] CB 149.

The decision of the Tribunal

1. The Tribunal was not satisfied that the applicant was involved in the Local Church from as long as the mid-1990s based on the answers to its questioning provided by the applicant, noting that the questions were general in the extreme and reasonable for someone with close to 20 years in the Church to have clear responses to.[8]

   [8] see [20].

2. At [25]-[27] the Tribunal set out the applicant's evidence provided at the hearing in relation to the claimed arrests by the Chinese authorities. The Tribunal found this evidence to be unconvincing and was not satisfied that these arrests occurred. As the Tribunal was not satisfied that the applicants attended the Local Church in China, it was also not satisfied that the applicant was arrested.[9]

   [9] see [28].

3. The Tribunal considered the applicants' evidence that the second applicant had serious health issues and found that this was the main reason the applicants were seeking to remain in Australia.[10]

   [10] see [29].

4. At [30] the Tribunal considered country information in relation to the Local Church and went on to find that given the lack of improvement in the second applicant's health since 1994 when the applicants joined the Local Church, the attitude of the Chinese authorities to the Church and the risks surrounding involvement in the church, and the evidence provided both in the application and at hearing, it was not satisfied that the applicants had been Local Church adherents in China.  The Tribunal was also not satisfied that the applicant suffered any harm as claimed for his religious beliefs.  The Tribunal assessed the applicant as not a credible and truthful witness.[11]  Given its credibility concerns, the Tribunal was not satisfied that the applicants' son had been interrogated in China.[12]

   [11] see [31].

   [12] see [33].

5. The Tribunal had regard to the evidence provided by the applicants in relation to their religious faith and was satisfied that both had been baptised and had some involvement with the Local Church in Australia. However given the speed in which this was done, the Tribunal was not satisfied that the applicant engaged in this conduct otherwise than for the sole purpose of strengthening his claims to be a refugee. Additionally the Tribunal was not satisfied that his activities in Australia would bring him to the attention of the authorities in China.[13] The Tribunal was not satisfied that the applicant would be involved with the Local Church should he return to China.[14]

   [13] see [32].

   [14] see [35].

6. The Tribunal also considered the delay between the applicants being granted a visitor visa on 7 January 2013 and arriving in Australia on 22 October 2013 as significant and considered that someone who has been persecuted in China since 2010 would have made earlier attempts to leave China.[15]

   [15] see [34].

7. At [36] the Tribunal did not accept that there was a real chance that the applicant would face serious harm, being satisfied that his involvement in the Local Church in Australia was undertaken solely for reasons of strengthening his refugee claims and that this conduct had not brought him to the attention of the Chinese authorities. The Tribunal therefore disregarded this conduct in assessing his claims under s.36(2)(a) of the Migration Act 1958 (Cth).

8. At [37] the Tribunal found that it was not satisfied that there was a real risk the applicant would suffer significant harm for any of the reasons he claimed, if he were to return to China in the reasonably foreseeable future. Having considered the applicants' claims individually and cumulatively, the Tribunal was not satisfied that there was a real risk the applicant would be arbitrarily deprived of his life; or that the death penalty would be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he was returned to China in the reasonably foreseeable future.[16]

   [16] see [38]

The present proceedings

1. These proceedings began with a show cause application, filed on 27 January 2016.  The applicants continue to rely upon that application.  The grounds in the application are expressed in narrative form in an attachment to it.  The Minister, in my view, distils the essential legal propositions from that document at [15] of his submissions:

   The applicants are self-represented in these proceedings. The application filed on 27 January 2016 pleads six grounds in narrative form. It appears that the grounds were incorrectly included under the heading “Orders Sought by the Court” and under the heading of “The Grounds of the Application” is a summary of the applicants' claims. The first respondent considers the statement to raise the following grounds:

   [(a)]The AAT failed to afford the applicants procedural fairness;

   [(b)]The AAT was prejudiced;

   [(c)]The AAT failed to consider all of the evidence; and

   [(d)]The AAT failed to investigate with the applicant's church about the applicants' religious practice.

2. Only the Minister prepared written submissions in accordance with procedural orders made by a Registrar. 

3. I have before me as evidence the court book filed on 4 March 2016, and the short affidavit filed with the original application by the applicants.

4. I invited oral submissions from the applicants today.  A key focus of those submissions was the applicants’ contention that there was no medical reason for them to travel to Australia.  It appears that the second applicant underwent surgery for suspected thyroid cancer in 2012.  The applicants maintain that that operation was successful, and further examinations undertaken in Australia have confirmed that the second applicant is in good health.  They contend that the Tribunal was wrong to conclude that they travelled to Australia in order for the second applicant to receive medical treatment.

5. If that were the only basis for the Tribunal’s decision, then there would be real substance to the applicants’ concern.  I am not in a position to test the applicants’ contentions concerning the second applicant’s state of health, either in China or in Australia.  The applicants sought to introduce into evidence a certificate from an Australian hospital, apparently bearing on the question of the second applicant’s health, but unfortunately they were not able to locate it.  Whatever the true circumstances of the second applicant’s health over time, I am satisfied that the Tribunal considered all of the applicants’ claims for protection and, by a logical process of reasoning, reached conclusions that were open to it on the material before it, not limited to the reasons why the applicants chose to travel to Australia in 2013.

6. That analysis by the Tribunal drew upon the evidence given by the applicants about their faith, their multiple baptisms, their delay in leaving China and the evidence from the elder of the church, Brother Poh, which was not particularly supportive.  In other respects, the applicants’ submissions go to the merits of the Tribunal’s decisions.  Those merits are beyond the scope of this proceeding. 

7. I otherwise agree with the Minister’s submissions.

8. The Tribunal’s procedural fairness obligations are substantially codified in Division 4 of Part 7 of the Migration Act. The Tribunal complied with its statutory obligations in that regard.

9. The applicants were invited to and attended a hearing as required pursuant to s.425 of the Migration Act, and they were clearly on notice of the dispositive issues in the review from the delegate's decision.

10. There was no information relied on by the Tribunal which enlivened its obligations pursuant to s.424A of the Migration Act.

11. The Tribunal contacted Brother Poh after the hearing to confirm that the Sussex Street venue provided by the applicants was used by the Local Church.  Brother Poh confirmed this information and further stated that he had stopped providing letters of support to church attendees in mid-2015 as they were being used for migration purposes and not all attendees continued to stay with the church.  The Tribunal did not make any further finding in relation to the letters signed by Brother Poh and the Tribunal went on to accept that the applicants had some involvement with the Local Church in Australia.[17]

    [17] see [32].

12. This information did not “contain in their terms a rejection, denial or undermining” of the applicants' claims and accordingly it did not enliven the Tribunal’s s.424A obligations.[18]

    [18] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17].

Prejudice

1. The applicants claim that the Tribunal finding that the applicants' reason for travelling to Australia was the second applicant's poor health was “totally and absolutely reckless and prejudiced in [their] view”. This appears to be a claim that the Tribunal was affected by bias or there was a reasonable apprehension of bias on the part of the Tribunal.  An allegation of bias is a serious allegation which needs to be sufficiently particularised and supported by evidence.[19]  In the circumstances of this matter, such an allegation cannot be sustained.

   [19] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J); Minister for Immigration v Jia (2001) 205 CLR 507, 531 [69] (Gleeson CJ), 546 [127] (Kirby J).

2. There is nothing on the face of the Tribunal’s decision that suggests it acted with bias or with a closed mind.  Rather, on a fair reading of the decision record, it is evident that the Tribunal invited the applicant to comment on the issue dispositive to the review, being whether the applicants' claim to be involved with the Local Church in China and Australia was credible.  The Tribunal considered the applicants' evidence in response to this issue, but nevertheless concluded that the applicants' claims about their involvement with the Local Church was not credible.  This was a finding open to the Tribunal on the material before it.  In this context, the applicants’ assertion of bias appears to be no more than dissatisfaction with the Tribunal’s ultimate conclusion to affirm the decision under review.

3. Furthermore, it will be a rare case where it will be possible to establish bad faith or bias on the basis of the Tribunal’s reasons alone.  The applicants have not filed any transcript to support their allegation that the Tribunal was prejudiced and on the available material, such an allegation cannot be sustained.

Failure to consider evidence

1. The applicants assert that the Tribunal ignored the evidence provided to it, namely the church reference letter from the Local Church.

2. Such an allegation cannot be sustained in circumstances where the Tribunal expressly referred to the applicants’ documentary evidence at [10]. The Tribunal further considered the reference letters at [23] and ultimately accepted that the applicants “both have been baptised in Australia and have had some involvement in the Local Church in Australia”.[20]  Properly understood, this claim does no more than express the applicants' disagreement with the Tribunal’s decision and does not establish any jurisdictional error.

   [20] see [32].

Failure to investigate

1. The applicants claim that the Tribunal failed to investigate with the Church their religious practice in Australia.  It was for the applicants to present such evidence and to advance such submissions as they considered relevant to their application and the Tribunal was not obliged to conduct inquiries in order to gather information to support the applicants' claims.[21]  In the absence of any obvious enquiry that the Tribunal could have made about a critical fact,[22] the Tribunal was not obliged to investigate with the Church the applicants' religious practice in Australia.

   [21] Minister for Immigration v SZNVW & Anor (2010) 183 FCR 575, 586 (Keane CJ), 588 (Emmett J); Minister for Immigration v SZIAI (2009) 259 ALR 429, 436.

   [22] Minister for Immigration v SZIAI (2009) 259 ALR 429, 434-436 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

2. I conclude that the applicants have not demonstrated that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $4,000.  When I invited submissions on that issue from the applicants, the applicant said that he and his wife would consider their position.  I am satisfied that costs of not less than $4,000 have been reasonably and properly incurred on behalf of the Minister, when considered on a party and party basis. 

4. I will order that the first and second applicants pay the first respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $4,000.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 September 2017