ALK21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 644
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 644
File number(s): SYG 268 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 25 July 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal –Protection (subclass 866) visa – whether Tribunal erred in considering evidence – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 359A Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hunter Valley Developments Pty Ltd v Cohen, .Minister for Home Affairs and Environment 3 FCR 344
Selvaduri v Minister for immigration and Ethnic Affairs (1994) 34 ALD 347
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submission/s: 19 July 2023 Date of hearing: 19 July 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Lloyd appeared on behalf of the First Respondent. ORDERS
SYG 268 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALK21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
25 July 2023
THE COURT ORDERS THAT:
1.Leave is granted for an extension of time to file the application for judicial review.
2.The application is otherwise dismissed.
3.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $5600.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of China. She arrived in Australia on 11 July 2017 as the holder of a Visitor visa.
On 6 September 2017, the applicant applied for a Protection (subclass 866) visa (“Protection visa”). On 12 February 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa.
On 28 February 2018, the applicant applied for merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa in a decision dated 11 January 2021.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Paragraphs 1 to 5 of the Tribunal’s decision record outlines the background to the applicant’s Protection visa application. Paragraphs 6 to 14 describes the legislative criteria for the grant of a Protection visa. At paragraph 15, the Tribunal states that, in accordance with Ministerial Direction No.84, it took into account the Refugee Law Guidelines and Complimentary Protection Guidelines prepared by the Department of Home Affairs and country information assessments prepared by the Department for Foreign Affairs and Trade.
At paragraph 17, the Tribunal summarised the applicant’s protections claims to relate to her being a Christian and that Chinese authorities would cause her serious harm for being a Christian.
The applicant claims to be a citizen of China. The Tribunal accepted this. The Tribunal had no evidence to suggest that she has the right to enter and reside, either temporarily or permanently, in any other country. The applicant’s protection claims were assessed against China as being the country of reference and as the receiving country.
At paragraph 22, the Tribunal reproduced the applicant’s protection claims as follows:
· Her mother, brother and sister still live in Sichuan, China. She does not contact them and has had no information about them since 2015.
· She travelled to South Korea in 2008 to study, work and to become a Christian. She said in China, the government restricts Christian activities but in South Korea most people believe in Christianity and she wanted to find a peaceful place to understand “what is God”.
· She wrote to the Australian embassy in Beijing asking for protection. She was given advice to apply for a subclass 600 tourist visa to enter Australia and then she could apply for a protection visa. She has not applied for protection in any other country.
· She has previously been in immigration detention in South Korea from 1 to 30 September 2015.
· Between 1 November and 1 July 2017 she was self-employed as a purchase manager for a factory and for a hotel in Chengdu.
· As a Christian leader in China, she has no freedom. Being a Christian in China, the risks are huge but she is a faithful believer and is not backing down, “we are being more discreet”. Christians have started worshipping in underground churches, which is a well-known and open secret among Chinese Christians. Local police regard them as illegal and “always” arranged for her to talk and would threaten her to give up her faith.
· Christians are persecuted in the Sichuan province and there was a widespread crackdown on so called cult activities which has led to an increase in worship in underground churches over traditional churches.
· There has been an increase in religious practitioners being persecuted, with the number of individual cases reaching close to (or more than) 1000 religious adherents.
· She has no rights.
· She joined the Sichuan branch of a China Aid organisation in January 2016 which provides “leadership and rule of law training for Christian and church leaders in China to defend their rights under both Chinese constitutional law and international law” which meant she got a lot of information and evidence about the persecution in Sichuan as a result of the Government sanctioned ‘Three Rectifications and One Demolition’ campaign, which targeted house churches and government registered ‘Three Self Patriotic Movement’ churches (TSPM).
· The Chinese government has taken aggressive steps to contain growth including rezoning and demolishing churches. This campaign “indiscriminately” removed and demolished crosses on church buildings and often demolished entire church buildings.
· She said her local church in Chengdu suffered the forced demolition and relocation on 26 April 2016. They received no legal advice, no legal notice or any “commitment”. She protested this and appealed to local government, but local police arrested her.
· She has suffered abuse and fear as a result of being a Christian leader. She was “always” arranged by the local police department called “Stability Maintenance Office” to talk to police.
· On 26 April 2016, she was arrested because of the protest. She was detained for questioning for three days without food except water. When asked for the toilet, she said the policeman “touched my secret parts to check if I was wet and will give me a bowl to let me release”. The police have confiscated her bibles and thrown them in the rubbish bin, which occurred on 26 April 2016.
· She said the heightened persecution is attributed to President Xi’s political reforms, which is a guise to persecute religious communities, non-government organizations, human rights lawyers, and other religious and political dissenters. Under the TSPM, the Chinese Government has engaged in harassment, abuse, arrests and sentenced pastors and church members to prison. That there has been at least a 150% increase in the number of abuses against Christian followers over the last decade in 2016.
· She has been monitored by police during covert gatherings of a dozen Christians in an old apartment building every Friday when they met to read the bible, pray and sing Christian songs.
· She is looking for a peaceful, safe country with freedom.
· She has suffered four types of harm:
oShe has been questioned by local police;
oBeing threatened and persecuted;
oHer church was destroyed, she was beaten by police and jailed for three days; and
oShe was abused by police for believing in God, not the Chinese Communist Party.
· The Chinese Communist Party is responsible for the harm, who lead the police.
· She appealed to the Chengdu Xingu District People Government but there was no feedback. She also went to Chengdu City People Government to appeal. They offered a new place to build a Church, but the Government rejected this and told them it was an illegal Christian building.
· She continued to be monitored by police. She has been warned if against appealing and that she will be put in jail again. She said her name has been listed in the police network as a Christian and that she should be suspected or monitored. Historical Christian communities and non-traditional protestant Christian communities are monitored and limited in their freedom of religion.
· She has no place to live as a Christian in China and has to attend underground churches despite the risk of persecution.
· If she returns to China, she will be accused of being in a cult and sent to labour camps or mental hospitals or prison. She is unable to relocate within China because there is nowhere safe to be a Christian.
· The policeman who arrested her is named XXX, and he will track her down and harm her again and again. Because she has run away, she has written lots of letters to the Chinese Government to reveal his “convicts”, but the government still regards her as the enemy.
At paragraph 24, the Tribunal noted that the applicant provided three photographs, a copy of her passport and a copy of her Chinese identity cards for herself and her husband in support of her Protection visa application. The applicant also provided a letter from a Senior Pastor of a Chinese Congregational Church in Sydney dated 26 November 2020.
At paragraph 26, the Tribunal reproduced much of the applicant’s evidence given at the Tribunal hearing. At paragraph 27, it went onto reproduce relevant extracts from the Country information on China concerning religion, Christianity and Falun Gong.
Paragraphs 32 onwards deals with the Tribunal’s findings and reasons for its decision. When asked about Witness Lee, Watchman Nee, recovery, shouting and being regenerated, the Tribunal did not consider the applicant’s responses to demonstrate that she was an adherent to a local church in China. The Tribunal found that the applicant was not an adherent to the local church and that she did not follow the teachings of Witness Lee or Watchman Nee.
The Tribunal noted that although the applicant claimed to be a Christian since 2008, she could only give basic information about her faith, the Bible and religious songs. The Tribunal considered that the applicant’s main takeaway from the Bible, to be kind to others, as being an over-simplification. It stated that the applicant did not identify with any particular story or lesson from the Bible. The Tribunal did note that the applicant recounted a line she liked from the Bible that it understood to be similar to that of John 6:35.
The Tribunal stated that it was unable to identify the applicant in the photographs that she provided. In fact, it considered that in one of the photos, which the applicant claims she was identified, the subjects were more likely to be male considering their body shapes and sizes.
The Tribunal noted that the applicant did not disagree with the translation of protestor’s banners depicted in the pictures that it also concerned the demolition of residential buildings. When questioned about this, the applicant said that only her “brothers and sisters’ from her church were arrested. The Tribunal found it difficult to accept that the authorities would be able to single out Christian protestors in a protests which also included non-Christian protestors. Accordingly, the Tribunal did not accept that the applicant attended a protest in relation to the destruction of a church on 26 April 2017 and did not accept that the applicant was arrested and detained for three days as a result. The Tribunal further stated that it was unable to accept that the applicant had been arrested four or five times for being a Christian as claimed.
The Tribunal also noted inconsistencies in the applicant’s evidence as it related to the name of the person who allegedly interrogated her. It noted that the applicant claimed that the police officer’s name was LM in her application, but later told the Tribunal that it was YMG. The Tribunal did not consider that this was the result of a misinterpretation or misunderstanding and that it raised concerns as to the voracity of her evidence.
The Tribunal understood the applicant’s claims to be that she was detained and interrogated for three days as the Chinese authorities consider Christians to be Falun Gong practitioners. The Tribunal noted that country information suggests that the Chinese authorities consider Falun Gong to be very distinct from Christians and are treated very differently. Therefore it did not accept that the applicant was held in custody as the police believed her to be a Falun Gong adherent or for her being a Christian either. The Tribunal further noted that the fact that the applicant left the country using her passport indicates that she was not under any surveillance, which country information suggests Falun Gong practitioners are.
In relation to the complementary protection criteria, the Tribunal understood that the applicant made no claims that her attendance at a Church in Australia would be the cause for serious or significant harm if she were to return to China. It further noted that there was evidence that the applicant had participated very little in proselytising in Australia as she had been very busy.
The Tribunal stated that evidence from an Australian Pastor did not indicate that the applicant had ever discussed with him the difficulties faced by Christians practicing in China and that her religious activities appeared to be limited to attending Church services and an online Bible study group. The Tribunal accepted that the applicant had engaged in some Christian activities in Australia but that there was no evidence that these activities would result in her facing a real risk of being arbitrarily deprived of her live, face the death penalty or be subjected to torture, cruel of inhuman treatment or punishment, or degrading treatment or punishment if she was returned to China.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained within an Initiating Application filed on 18 February 2021. They are as follows. They are reproduced as they appear in the application:
1. AAT OFFICER REFUSED TO GRANT ME A PROTECTION VISA BECAUSE THEY COULD NOT BE SATISFIED BY MY EVIDENCE TO SUPPORT THE CLAIMS.
2. THE OFFICER COULD NOT IDENTIFY ME IN THE PHOTO EVIDENCE I HAVE SUBMITTED.
3. THE OFFICER COULD NOT SATISFY THAT I POSSESS COMPREHENSIVE KNOWLEDGE ABOUT CHRISTIANITY.
4. I HAVE SUFFERED A SERIOUS CHEST DISEASE AND I HAVE TO UNDERGO SURGERIES SOON.
5. I HAVE EXPERIENCED FINANCIAL HARDSHIP DUE TO MY HEALTH CONDITION. I COULD NOT WORK TO SUPPORT MY LIVING AND MY FRIEND HAD LENT ME $2,000.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented and with the assistance of a Mandarin Interpreter.
At the commencement of the Hearing, the Court ensured that the applicant had received a copy of the relevant Court book and the first respondent’s written submissions. The Applicant was given the opportunity to have the first respondent’s written submissions translated to her.
At the commencement of the hearing the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained how the hearing would be conducted.
The applicant filed an Affidavit on 5 July 2023 which attach to it a document, structured as a letter, addressed to the “FCC Judge”. The document was initially written in Chinese characters and has been translated by a certified translator. The Court has treated this document as if it were written submissions. The Court was unable to accept into evidence other documents attached to the applicant’s Affidavit as they post-dated the Tribunal decision and only went to the merits of the decision
In her submissions, the applicant commented on the Tribunal’s finding that photos she submitted was unrealistic and that photos of police are strictly forbidden. If the photos were found she could face very serious fines and prison sentences as the criminal law in China is very strict in this respect.
In relation to the questioning of the applicant’s Christian identity, she submitted that she feels unworthy of the title of “Child of Christ”. She thanks the Lord for forgiving her sins and states that she has been attending Sunday worship.
The applicant submitted that in 2020 she got breast cancer and was desperate to see her family. She tried to go back to China for a while, however found out that some of her friends who attended the protest were still in jail. The applicant submitted that she appreciates how her cancer was treated in Australia and the assistance of her brothers and sisters at the church. She has studied in Australia and is currently working in a nursing home. She states that being in Australia has assisted her to become closer to God. She asks that the Tribunal Officer give her the opportunity to express her gratitude.
At the hearing, the applicant told the Court that her friends risked being gaoled to get the photographs to her. The Tribunal found she was not a Christian but she has attended church since arriving in Australia. She felt insulted that they did not consider her a Christian. She felt the Tribunal, if they did not believe her, should go to China to investigate. The Court advised the applicant that it was not the role of the Tribunal to investigate the applicant’s claims, rather they considered the material putto them in support of her claims.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to the applicant’s application for an extension of time, the first respondent noted that their application was only three days out of time and that this was not a lengthy period. However, it was submitted that the applicant did not provide an adequate and evidenced explanation for this delay.
The first respondent noted that the applicant’s application indicates that she had attempted to file the application within time but that her application was rejected due to issues concerning her proof of financial hardship. It was submitted that if this were the case, the application would likely provide evidence of her attempted lodgement and the rejection, or proof of her application for a fee exemption. None of this kind of evidence has been filed or served.
The first respondent submitted that it would face no relevant prejudice if the extension of time was granted, however there is a significant public interest in the finality of judicial decisions. The mere absence of prejudice can never of itself justify the exercise of discretion sought by the applicant.
It was submitted that the applicant bears the onus of proving her case and that the Tribunal’s obligations are to respond to the case put and decide as to whether the applicant’s claims have been made out. The Tribunal’s reasons demonstrate that it properly considered the applicant’s evidence and claims. The Tribunal outlined evidence concerning the applicant’s faith and past harm, and provided a lengthy analysis of photographs that were submitted to it. It was further submitted that the applicant was on notice that the genuineness of her evidence was in issue from questions that were asked at the Departmental interview.
The first respondent noted that the decision record provided a detailed account of questions asked of the applicant concerning her faith, the answers given and the Tribunal’s concerns with the applicant’s account.
In relation to grounds one and two, it was submitted neither ground properly articulates any error. No error arises in the Tribunal’s treatment of the Applicant’s evidence. It was for the applicant to advance the case she relied upon: (see; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 “Abebe” at [187]).
Ground three states that the Tribunal was not satisfied with the applicant’s evidence regarding Christianity. Again, the applicant bore the onus of establishing her claim. The Tribunal gave the applicant further opportunities to provide further evidence, including during the Tribunal hearing and in response to a s 359A of the Act invitation. It was open to the Tribunal to reject the applicant’s claims for the reasons it gave on the evidence that was before it.
It was submitted that grounds 4 and 5 of the applicant’s application fail to articulate any error on the part of the Tribunal. The submissions attached to the applicant’s Affidavit either address the merits of the Tribunal decision or matters that postdate the decision.
SHOULD AN EXTENSION OF TIME BE GRANTED
The first matter relates to the extension of time application. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, the following matters were held to be relevant as to whether an extension of time should be granted:
a. the extent of the delay;
b. the explanation for the delay;
c. prejudice to the respondent due to the delay; and
d. the merits of the proposed application.
The application to this Court is three days out of the 35 day time limit contained within
s 477 of the Act. This is a very small period. This favours an extension being granted.
The second matter is the reason for the delay. The applicant claimed that she was waiting for an approval of her Court fee exemption application before filing her application. The first respondent notes that no evidence has been provided to support the applicant’s claim that she attempted to file her application but that it was rejected. The Court considers this factor to be neutral to an extension being granted.
The first respondent properly conceded that there is no real prejudice to the Minister, should an extension be granted other than the significant public interest in the finalisation applications for judicial review in migration matters. It was submitted that an absence of prejudice can never justify of itself the exercise of a discretion to grant an extension: (see; Hunter Valley Developments Pty Ltd v Cohen, .Minister for Home Affairs and Environment 3 FCR 344 at [349]). This favours an extension being granted. This factor is neutral to an extension of time being granted
The final matter, is the merits of the application. It is not in the interests of justice for an unmeritorious application to be granted an extension of time. The Court has considered the grounds of judicial review relied upon at an impressionistic level. The Court is of the view that they are worthy of a more detailed consideration and should not be dismissed without proper consideration. Accordingly, leave is granted for an extension of time.
IS THERE JURSDICTIONAL ERROR IN THE TRIBUNAL’S DECISION?
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
Grounds one and two may be dealt with together. Ground one is a complaint that the Tribunal was not satisfied by the applicant’s evidence to support her claims. Ground two states that the officer could not identify the applicant in the photo evidence she submitted. The Court agrees with the first respondent that neither ground properly articulates any jurisdictional error. If anything, the grounds disclose a disagreement with the findings of the Tribunal and invite the Court to undertake impermissible merits review: (see; Abebe at [53] – [54]).
A fair reading of the Tribunal decision record shows an extensive discussion of the applicant’s claims together with an analysis of the photographs submitted by the applicant. The Court is satisfied that it was open to the Tribunal on the evidence before it, to conclude that it could not identify the applicant. The Tribunal put this to the applicant in the hearing and further, invited her, pursuant to s 359A of the Act. Further, the Tribunal discussed extensively the evidence before it as to the applicant’s faith and the risk her faith might pose if returned to China. Again, there is nothing illogical, irrational or legally unreasonable in these findings. Grounds one and two have no merit.
Ground three complains the Tribunal was not satisfied the applicant possessed a comprehensive knowledge about Christianity. It is well established the Tribunal is not require to accept uncritically any and all the applicant’s claims: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Nor does the Tribunal have to possess rebutting evidence before holding that a particular claim was not made out: (see; Selvaduri v Minister for immigration and Ethnic Affairs (1994) 34 ALD 347 at [348]).
The Tribunal recorded at [33] – [36] the evidence it was presented with to support the claim the applicant was a practising Christian. The Tribunal found it difficult to accept that after 12 years of being a Christian, she was only able to give basic information about her faith, the Bible and religious songs. The Tribunal was troubled that the main message she received from the Bible was to be kind to others. Again, the conclusion reached by the Tribunal was open to it on the evidence before it and for the reasons it gave. Ground three has no merit.
Grounds four and five are not proper grounds of judicial review. They simply state personal information that has no bearing on the issue of jurisdictional error in the Tribunal’s decision.
CONCLUSION
As none of the grounds of judicial review have merit, the application must be dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 25 July 2023
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