Akc16 v Minister for Immigration

[2017] FCCA 2119

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2119

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Application for judicial review of a decision of the Administrative Decision Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the Applicant’s fear of harm in China for religious reasons – Administrative Appeals Tribunal did not believe Applicant and made adverse credibility findings – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A

Migration Regulations 1994 (Cth)

Cases cited:

ABX15 v Minister for Immigration and Border Protection [2016] FCA 855

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

SCAA v Minister for Immigration [2002] FCA 668

SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant: AKC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 390 of 2016

Judgment of: Judge Dowdy

Hearing date: 17 November 2016

Delivered at: Sydney

Delivered on: 6 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms H Musgrove

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 23 February 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 390 of 2016

AKC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of China aged 54 years, having been born on 15 June 1963.

2. By Application filed in this Court on 23 February 2016 he seeks to quash, and is taken to seek to have redetermined, a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 29 January 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 15 July 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).

Background 

1. In his Protection visa application lodged on 17 October 2013 the Applicant claimed to have arrived in Australia on 9 April 1995 from Malaysia on a false Malaysian passport.

2. He then applied for a Protection visa on political grounds relating to the student movement in China of 4 June 1989 and his arrest and detainment there. His application for a Protection visa was refused by a Delegate on 30 October 1995 and this refusal was affirmed by the Refugee Review Tribunal on 16 October 1997. His application for judicial review of that decision was dismissed by the Federal Magistrates Court on 20 February 2004. His existing Bridging visa expired on 19 March 2004 and he remained in Australia unlawfully.

3. Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Act and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A of the Migration Act 1958 (Cth) (the Act) as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, the Applicant on 17 October 2013 again applied for a Protection visa and at that time became the holder of a Bridging visa Class E in association with this second Protection visa application, the subject of review in this proceeding.

Claims for Protection

1. The Applicant’s claims for protection were set out in a Statement forming part of his Protection visa application and were to the following effect:

   a)He comes from a rural area in the Fujian Province in China and fears being harmed by the Chinese authorities as a practitioner of the Yiguandao religion, which he began practising in July 2003 in Australia on the advice of a friend who came from the same town in China as he;

   b)He began to preach Yiguandao to others, including to his wife and son who were both still in China and who were converted to the religion. The wife and son set up a family temple which was discovered by the Chinese Government which then tried to obstruct the holding of congregations in the temple;

   c)In 2012 the Applicant gave books on Taoism to a friend to take back to China but they were confiscated on return and the Applicant has been identified in China and his home searched and himself the subject of an investigation;

   d)The Applicant wished to continue spreading Yiguandao but as it is classified as a cult by the Chinese authorities he will face persecution if he does so in China and he wishes to remain in Australia;

   e)He is a skilled construction worker and wishes to contribute to Australia.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 14 July 2014 and provided further information in relation to his claims, including:

   a)He attends a Yiguandao temple twice per month;

   b)His wife was detained for one month after becoming involved in a protest by Yiguandao members in China in 2013;

   c)His family, including his two children, have continued to practise Yiguandao and he wants to promote it in China but it is illegal there.

2. In the result the Delegate was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36 of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) and refused to grant him a Protection visa.

3. The Delegate found the Applicant’s claim to be committed to the Yiguandao religion to not be credible and that the Applicant had not demonstrated a genuine and ongoing commitment to this religion but had made his claims of a commitment to it for the purpose of supporting his Protection visa application and that he had fabricated events in an attempt to account for aspects of his life, his work and his 9½ years of being unlawful in Australia.

4. The Delegate did not find the Applicant to be a witness of truth, but rather as a person willing to use whatever means might suit his purpose.

5. I note that the Delegate only had jurisdiction to consider the Protection visa application on the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). However, in the result the Delegate considered the Applicant’s Protection visa application on both the Refugees Convention criterion and the complementary protection criterion but was not satisfied that Australia had protection obligations to the Applicant under either criteria.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 18 August 2014 for a merits review of the Delegate’s decision.

2. On 27 November 2015 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages.  

3. The Tribunal was of the view that its jurisdiction in considering the application for a Protection visa was limited to the complementary protection criterion and not the Refugee Convention criteria in s.36(2)(a) of the Act. This view was subsequently confirmed in SZVCH at [44] per Kenny, Siopis and Besanko JJ and [113]-[114] per Mortimer J. However, for more abundant caution as judgment in SZVCH had not yet been delivered it did consider the Applicant’s claims under s.36(2)(a) too.

4. At the Tribunal hearing the Applicant claimed that he would be persecuted by the Chinese authorities because he is a Yiguandao follower and the Chinese Government does not recognise this religion. He claimed that he goes to a temple in Sydney and attends lectures and sometimes does volunteer work and attempts to convert friends to the Yiguandao religion.

5. At [27] of its Decision Record the Tribunal recorded that it had serious concerns about the credibility of the Applicant and the veracity of his claims and that it did not accept that he was a witness of truth concerning matters central to his claims of past persecution, his family’s situation and future fears and concerns.

6. At [29]-[43] the Tribunal considered, analysed and recorded inconsistencies between his first Protection visa application (see [4] above) and his present Protection visa application.

7. At [44]-[54] it considered and analysed inconsistencies in his evidence relating to his life in China and his claims of past harm in China and his changing and non-credible evidence in relation to those claims.

8. At [55]-[63] the Tribunal considered and analysed the Applicant’s knowledge, practice of and involvement with the Yiguandao religion.

9. At [56] the Tribunal found that the Applicant was unable to explain in any detail why he had converted to the Yiguandao religion and that he was only able to give a brief description of aspects of that religion.

10. At [57] the Tribunal found that the Applicant gave changing and evasive evidence as to how often he attended the Yiguandao temple in Australia after he had decided to convert to the religion.

11. At [58]-[59] the Tribunal found that the Applicant was unable to explain how he could convert someone to the Yiguandao religion, although he had claimed to have actually done so previously.

12. At [64]-[66] the Tribunal considered and expressed its concern at the Applicant’s delay in making his claim to practice the Yiguandao religion.

13. In the result, at [72] of its Decision Record the Tribunal concluded that the Applicant was not a witness of truth and that he had fabricated accounts of events in China and his circumstances in Australia concerning the Yiguandao religion, as well as his alleged future fears and circumstances. It was not prepared to accept that he was a genuine Yiguandao practitioner but rather considered that he had joined the Yiguandao religion and occasionally attended a temple ceremony or lecture because he wanted to give himself an opportunity to make this further, sur place claim for a Protection visa.

14. At [79] the Tribunal recorded that it did not accept that the Applicant had become involved in the Yiguandao religion for any genuine reasons, that he had genuinely converted to the Yiguandao religion or that he had converted his wife or family to Yiguandao. The Tribunal rejected the Applicant’s claims under both the Refugees Convention criterion and the complementary protection criterion and affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.

Grounds of Attack on the Tribunal Decision in this Court

1. I take the Grounds which the Applicant seeks to rely upon as those in all of the eight paragraphs appearing in the attachment to his Application, which are as follows (providing sequential numbering for the sake of clarity):

   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 l-Kuan Tao in China and Australia.

   2.AAT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3.AAT failed to prudently consider my risk, especially my commitment of paralyzing if I return to origin.

   4.AAT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

   5.AAT treat my case unfair and unreasonable and did not consider that I will be persecuted by the Chinese government due to my I-Kuan Tao believe.

   6.I have been actively involved in I-Kuan Tao actives in Australia. My action and religious performance has been evidenced by I-Kuan Tao fellows.

   7.AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.

   8.The tribunal's decision could give rise to an apprehension  of bias in the mind of a reasonable observe.

Consideration

Ground 1

1. This Ground appears to argue with the merits of the decision of the Tribunal and seeks to invoke an impermissible merits review in this Court. It is clear from the Decision Record that the Tribunal did consider the Applicant’s claims to be a practitioner of the Yiguandao religion and took into account his claims about his life in China and his practice of the Yiguandao religion in Australia and via his family, in China.

2. Ground 1 does not establish any jurisdictional error. 

Ground 2

1. In my view it is clear from its Decision Record that the Tribunal gave full and extensive consideration to the Applicant’s claim to be a genuine practitioner of the Yiguandao religion and his claim to fear harm and persecution from the Chinese authorities as a Yiguandao practitioner if he returned to China.

2. Whilst the Tribunal cannot act as an “arbiter of doctrine” by setting up its own standard of what amounts to genuine religious belief or practice, there was no impediment to the Tribunal testing and evaluating the Applicant’s claim to be a Yiguandao practitioner. As Flick J in the Federal Court stated in ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 at [24]:

   The manner in which the Refugee Review Tribunal set out to test the Applicant’s claim to be a Christian was a function entrusted to it.  There was no impediment to the Tribunal testing the claim being advanced.  An assertion on the part of the Applicant that he was a Christian did not manacle the Tribunal to the confined task of simply testing whether he had been baptised or attended church.  The Applicant by making the claim could not preclude the Tribunal from testing the more fundamental assertion of fact as to his Christian belief.  In testing the claim being made, the Tribunal moreover did not seek to impose upon the Applicant any preconceived views as to the beliefs a person would have to hold in order to be a Christian; it was simply testing the claim made.

   For a general discussion of this area of the law, see also Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362.

3. In my view the Tribunal did not act as an “arbiter of doctrine” but simply engaged in its proper role of testing and evaluating the Applicant’s claims to be a genuine adherent of the Yiguandao religion.

4. This Ground does not disclose jurisdictional error.

Ground 3

1. In this Ground the word “paralyzing” is to be read, I believe, as “proselytising”.

2. The Tribunal in its Decision Record clearly recognised that the Applicant claimed that he wished to continue spreading the Yiguandao religion: see [7] of the Tribunal’s Decision Record.

3. However, after coming to an adverse view about his credibility the Tribunal did not accept that he had previously attempted to convert anyone to the Yiguandao religion or that he would have any interest in the Yiguandao religion or that he would undertake any Yiguandao religious activities if he were to return to China: see [79] and [82] of the Tribunal’s Decision Record.

4. This Ground fails to establish jurisdictional error.

Ground 4

1. It is clear from [69]-[71] of its Decision Record that the Tribunal did consider the documentary evidence produced by the Applicant in support of his claims but that this evidence failed to persuade the Tribunal of the truthfulness of his claims.

2. Ground 4 fails to establish jurisdictional error.

Ground 5

1. This Ground again seems to argue with the merits of the Tribunal’s decision and invoke an impermissible merits review in this Court. The Applicant has not tendered a transcript of the hearing before the Tribunal in an attempt to establish that he was treated unfairly or unreasonably at the hearing and there is no evidence otherwise that the Tribunal treated the Applicant or his claims unfairly or unreasonably.

2. This Ground fails to establish jurisdictional error.

Ground 6

1. This Ground again seems to argue with the merits of the decision of the Tribunal and does not establish jurisdictional error.

Ground 7

1. This Ground argues with the merits of the decision of the Tribunal and does not establish jurisdictional error.  

Ground 8

1. There is nothing in the Decision Record of the Tribunal that in my view could give rise to an apprehension of bias in the mind of a reasonable observer. Apprehension of bias is not established because the Tribunal rejected the Applicant’s claims and came to an unfavourable decision. In SCAA v Minister for Immigration [2002] FCA 668 at [38] von Doussa J said:

   38.In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion….. 

2. In my view there is no evidence before the Court of any procedural unfairness or breach of the rules of natural justice and this Ground fails to establish any jurisdictional error.

Conclusion

1. The Applicant has failed to establish that the Tribunal’s decision was affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  6 September 2017