APH16 v Minister for Immigration

[2018] FCCA 1032

FEDERAL CIRCUIT COURT OF AUSTRALIA

APH16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1032

Catchwords:
MIGRATION – Applicant’s claim to be a Christian and a preacher – the Tribunal accepted the Applicant’s claims to be a Christian and involved in the Chinese Methodist Church but otherwise found that his activities as a preacher limited – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476(1)

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1

Applicant: APH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 551 of 2016

Judgment of: Judge McNab

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Melbourne

Delivered on: 27 April 2018

REPRESENTATION

Applicant in person

Counsel for the Respondents: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 21 March 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 551 of 2016

APH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court by way of an application filed on 21 March 2016 whereby the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 1 March 2016, pursuant to section 476(1) of the Migration Ac 1958 (Cth). That decision affirms the decision of the delegate of the First Respondent to refuse an application for a Protection (subclass 866) Visa (‘the Visa’).

2. The grounds of the application are set out in a document attached to the application. That document has been conveniently and accurately summarised by the First Respondent into six grounds, these being:

   i)his application was not given fair consideration;

   ii)the Tribunal failed to consider the evidence provided including from Pastor Ha;

   iii)the Tribunal failed to consider his claims that he was a Christian and a preacher;

   iv)the Tribunal failed to give him a chance to comment on the “outstanding questions” at the hearing;

   v)the Tribunal’s issues with the Applicant’s credibility are “unacceptable”; and

   vi)the Tribunal was biased in its decision.

3. The Applicant appeared before the Court on 12 April 2018 with the assistance of a Mandarin interpreter.

Background

1. The Applicant is a citizen of China and he arrived in Australia on

   
   

   13 November 2006 as a holder of a Business Subclass 456 Visa. He first applied for a Protection Visa on 26 November 2006 and that application was refused by a delegate of the First Respondent on 13 December 2006. That decision was referred to in the decision of the delegate but does not form part of any of the reasoning of the Tribunal.

2. The Refugee Review Tribunal, as it then was known, affirmed the delegate’s December 2006 decision on 24 April 2007 and the Applicant remained in Australia unlawfully from 23 May 2007 to 24 December 2013.

3. On 24 December 2013, the Applicant applied for the Visa. The Applicant claimed that he feared returning to China because of his membership of the Eastern Lightning sect and said that he would be imprisoned due to his beliefs. He also claimed to attend a Chinese Methodist Church in Melbourne and attended a house church of the “Shouter sect”.

4. On 16 March 2015, the delegate refused to grant the Applicant the Visa and the delegate found that the Applicant had fabricated his claims for the Visa. On 17 April 2015, the Applicant applied to the Tribunal for a review of the delegate’s decision and attached a copy of the delegate’s decision. On 4 November 2015, the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a Mandarin interpreter. The Tribunal also received oral evidence from Reverend James Ha from the Chinese Methodist Church.

5. Prior to attending, the Tribunal sent a letter to the Applicant inviting him to appear before the Tribunal to give evidence and present arguments and the Applicant provided a statement to the Tribunal.

6. That statement is referred to in paragraph 21 of the Tribunal decision where the Tribunal set out the declaration as translated;

   Even after the interview with the immigration department, many incidences happened in relation to my religious belief and my application. In fact, I found information about the religious group, Eastern Lightning, via internet and contacted its staff on phone, but I just didn’t feel right.

   Recently after a thorough consideration, particularly my priest and my church explained all the problems with Eastern Lightning. I finally realised how this group deviated from the truth of the Bible, and it is a cult. Therefore I decided to give up my belief in it as I stated in my original statement and would continue serving in my current church, sustain my belief and mission as a Christian.

   For all detailed information in this regard I would like to explain further in front of the RRT. I have been appointed as a deacon in my church for year 2016. This is a trust I had from my church and also a new evidence of my belief.

7. The Applicant appeared before the Tribunal and a summary of the evidence that the Applicant gave is set out at [22] to [25] of the Tribunal’s decision. The Applicant’s evidence to the Tribunal was, in effect that he was a committed Christian who was strongly involved in the activities of the Chinese Methodist Church in Preston. That evidence was confirmed before the Tribunal in a written statement provided by Pastor, Reverend James Ha.

8. At [28], the Tribunal made reference to the following evidence given by Reverend Ha:

   a)Reverend Ha stated that he had known the Applicant since he started at the church three years ago;

   b)When he started, the Applicant did not attend as often as he does now because Pastor Ha has encouraged him to be more involved;

   c)Pastor Ha confirmed that the Applicant attends Bible study and prayer meetings; and

   d)Pastor Ha confirmed that the Applicant was baptised in 2008 and this is in the church records.

9. At the hearing, before the Tribunal, the Applicant claimed that his wife and mother were prosecuted by the government for their faith in Eastern Lightning and he claimed that he feared that he would be arrested if he returned to China because he is a Christian and because he will seek to attend an unregistered church and preach.

10. The Tribunal clearly set out and then considered the Applicant’s claims for complimentary protection. There may be some confusion on the part of the Applicant because at [34], the Tribunal appeared to challenge the Applicant’s credibility on the grounds that it felt that the Applicant gave shifting evidence in relation to his faith. However, a full reading of [34] indicates that on balance, the Tribunal considered the evidence of the Applicant and Pastor Ha and formed the view that the Applicant’s attachment to the church and his faith were genuine and that he has been an active member of the Christian Methodist Church over the past 12 months to the exclusion of other faiths (at [35]).

11. At [42], the Tribunal concluded that the Applicant holds and practises Christian beliefs in the Methodist tradition and that the Applicant has a profile as an active participant. The Tribunal also held that the Applicant’s preaching activities were of a limited nature within the Applicant’s personal network and that the Applicant does not have a profile as a leader in the church.

12. This is not a case where the Tribunal did not accept the Applicant’s claims in relation to his faith. The Tribunal’s decision rested on its acceptance of country information, in particular DFAT reports in relation to the treatment of Christians in the Fujian region of China. The Tribunal set out that material in [46] and [47] of its decision and raised those matters with the Applicant at the hearing.

13. On the basis of the country information, including DFAT country information and the Applicant’s evidence, the Tribunal did not accept that the Applicant would face a risk of significant harm from the government on the basis of his religious practices, his past Eastern Lightning beliefs or that of his wife’s current Eastern Lightning beliefs ([50] to [53]).

14. Turning to the grounds of the application as summarised:

    a)Grounds 1 and 2 – in my view, it is not open to the Court to find that the Tribunal did not give a fair consideration to the Applicant’s claims. The Tribunal summarised the Applicant’s claims and the evidence that he gave in support of the claims. The Tribunal considered that the evidence that was given in support of the claims by Pastor Ha and found that the testimony of that witness was open, sincere and genuine (at [34]). The Applicant was aware of the basis of the delegate’s decision and provided information and gave evidence in light of that decision. It is not apparent that there has been any failure on the part of the Tribunal to accord procedural fairness to the Applicant.

    b)Ground 3 – the Tribunal considered at length the Applicant’s claims in relation to his religious beliefs. It found that the Applicant would be able to continue his participation in worship and prayer on the basis that he had carried it out in Australia, and that it was preaching practice centred around the Applicant’s social and church network (Tribunal decision at 50). The Tribunal considered the Applicant’s witness’s evidence, that of Pastor Ha, in respect of the Applicant’s preaching activity and concluded that it was of a limited nature and that it would take place within the Applicant’s social network of friends. At [40], the Tribunal found that it did not accept that the Applicant would engage in any other form of preaching in China and that the Applicant did not have a profile as a leader in the church. It is apparent that the Tribunal considered the Applicant’s claims to be a Christian and a preacher. There is no error apparent in the decision and the Applicant is seeking impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    c)Ground 4 – in his application, the Applicant referred to a failure to give the Applicant a chance to comment on “outstanding questions”. The Applicant did not define what those open questions were. He did not raise fresh matters nor did he identify those matters to the Court when asked about them.

    d)Ground 5 – this ground raises a criticism of the Tribunal’s doubts regarding the Applicant’s credibility. As noted above, the Tribunal raised in passing, questions in relation to the Applicant’s credibility but on balance found that the Applicant’s claims in relation to his adherence to the Christian faith and his involvement in the church were believable. The refusal to grant the Visa on the part of the Tribunal was not based on credibility findings.

    e)Ground 6 – this ground raised an allegation of bias. The ground was not particularised and no information has been provided to the Court, whether in writing or in oral submissions, to support a finding that the Tribunal was affected by bias.

15. For these reasons, the Court finds that there is no error on the part of the Tribunal and dismisses the application filed on 21 March 2016.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 27 April 2018