Aqe18 v Minister for Home Affairs

[2019] FCCA 821

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQE18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 821

Catchwords:
MIGRATION – Review of AAT decision – application for protection visa – where applicant claimed protection on grounds of religion – jurisdictional error not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548
SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129
Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108

Applicant: AQE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 353 of 2018

Judgment of: Judge Humphreys

Hearing date: 1 April 2019

Date of Last Submission: 1 April 2019

Delivered at: Parramatta

Delivered on: 1 April 2019

REPRESENTATION

The Applicant appeared in Person

Solicitors for the Respondents: Ms Saunders of DLA Piper Australia

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs in the amount of $3,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 353 of 2018

AQE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by AQE18 under the Migration Act 1958 (‘the Act’), seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 18 January 2018, which affirmed the decision of the delegate of the Minister not to grant a Protection (Class XA) (subclass 866) visa.

Material available

1. The court had the following documents, in addition to the Court Book, before it:

   a)The decision of the Administrative Appeals Tribunal;

   b)The application to this Court;

   c)Grounds of appeal; and

   d)The respondent’s written submissions.

The AAT decision

1. The decision of the Tribunal runs to some nine pages.

2. At the beginning, the member set out the relevant law. In order for a Protection Visa to be granted, the applicant must satisfy s.36(2)(a), being that owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and is unable or owing to such a fear, is unwilling to avail himself of the protection of that country or who, not having a nationality and being outside the country of his former habitual residence, is unable or owing to such fear, unwilling to return to it.

3. There is an additional ground in terms of complementary protection. That is, that a Protection Visa should be granted where the Minister has substantial grounds for believing that as a necessity and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk that he or she will suffer significant harm.

4. The Tribunal made the following relevant findings:

   a)At paragraph 11, the Tribunal noted that the applicant had left China through Pudong Airport on 14 August 2014 and entered Australia on 15 August 2014, using his passport and visa.

   b)The applicant entered Australia as a visitor. The applicant’s visa was issued in Shanghai and was valid until 15 November 2014.  The applicant indicated to the Tribunal he was detained in China on 7 July 2013, ‘because of attending family gathering’.

5. In a statement dated 6 November 2014, in support of his application, the applicant stated he left China because he was persecuted by the Chinese government for attending church activities. The applicant stated that he would often attend gatherings. They did not go to public churches. The government would not allow them to preach the gospel and to worship God at home.

6. The applicant told the Tribunal that on 11 March 2012, when they were at a gathering, police came and took away the Bibles and materials relating to Jesus, claiming they were evidence of an illegal gathering.

7. The applicant claimed that he was taken to a local police station and interrogated.  The applicant claimed that he was beaten at the police station because he was spreading ‘superstition’.

8. The applicant claimed that his wife paid a fine and he and his father were subsequently released.  The applicant claimed that in July 2013 he was at ‘Brother Wei’s’ home and the police came again.  The applicant was taken to a police station and claims he was asked to admit that Jesus was a cult and promise not to attend gatherings again. The police beat and tortured him when he said nothing.

9. The applicant stated that he was persecuted in China because he believed in God.  He was watched and lived in fear.  He had to leave his country to come to Australia, where he sees real religious freedom.  He stated he could freely attend gatherings and attend church activities. The applicant wants to stay in Australia because it is a country with religious freedom and does not want to return to China to live in fear.

10. The Tribunal made some fairly extensive findings which I will set out in some detail, because they are relevant to the claim by the applicant that he did not have a fair chance of putting his case to the Tribunal.

11. The applicant was asked if he had attended a Christian church in Australia and his answer was, although not often, that he sometimes studied Christianity and the Bible in Australia with two others.

12. The Tribunal, at paragraph 24, accepted there was country information available that indicates that members of unregistered, family or house churches in China may attract adverse official attention and may be at risk of official discrimination and violence.

13. The Tribunal noted that they were satisfied that he was who he claimed to be in terms of identity. The applicant produced a passport which the tribunal noted had been reissued in Sydney on 2 May 2017.  The Tribunal accepted that the applicant applied for a visit or visa to Australia in 2014, but when he applied for that visa, it was not his intention to return to China from Australia.

14. The Tribunal noted that although the applicant claimed he had been the subject of adverse police attention, he had no difficulty in obtaining both a passport and a visitor’s visa to Australia.

15. The Tribunal did not accept that the applicant had difficulty getting any of his travel documents because he disobeyed the law in his country or because of claims associated with his religious activities.

16. The Tribunal noted that he had claimed he left his province of Sichuan secretly.  The Tribunal did not accept those claims as true.  The Tribunal noted that the applicant was working at a government-owned auto factory in Sichuan where he had worked since leaving school in 1992.

17. The Tribunal was of the view that the applicant’s evidence about working was not consistent with his claims that he was detained on one occasion by police authorities.  The Tribunal did not accept as reasonable or plausible his explanation that because he was being monitored by authorities, he had to stay at that job. 

18. At paragraph 31, the Tribunal did not accept as true that the applicant left this country and cannot return for the reasons he claims.

19. The Tribunal did not accept as true that the applicant fears, or feared at any time, harm in his country for the reasons he claims.  It did not accept as true that the applicant is a genuine Christian and will attend family religious gatherings in China or that he is of interest to police or authorities.  Significantly, the Tribunal found against the applicant in relation to this claims, as it did not accept that he had given truthful evidence to the Tribunal in relation to his claims.  In so doing, the Tribunal noted that he had given inconsistent evidence, in its view.

20. The Tribunal, at paragraph 33, did not accept that the applicant attended in the past, or will attend in the future, family Christian gatherings in his country, as he claims, or that he has attended church or religious gatherings or study in Australia as a genuine Christian. I simply note here, although it does not in any way constitute a finding of fact, that no evidence was presented by the applicant at the Tribunal of attendance at religious gatherings in Australia.

21. At paragraph 34, when the Tribunal asked the applicant what he does to practise his Christianity in Australia, he said that he has a copy of the New Testament and has books.

22. The applicant stated he does not often go to church in Australia because he has to pay his expenses.

23. The Tribunal raised with the applicant its concern about his limited responses and his knowledge about Christianity and what he does to practise it.  He said that he does not totally understand the religion, but left China during the government’s monitoring of him and he will be punished if he returns.

24. The Tribunal concluded, at paragraph 38, that it was not satisfied that the applicant is a person in respect of whom Australia has a protection obligation under the Refugees Convention and that he did not satisfy the criteria in s.36(2)(a) or meet the complementary provisions in s.36(2)(aa).

25. On that basis, the Tribunal confirmed the decision not to grant the Protection Visa.

Grounds of appeal

1. There have been three grounds of appeal set out in the notice of appeal.  I will deal with each of those in turn, together with the responses by the Minister’s legal representatives. I will set the grounds out in full.

2. The first ground of appeal is as follows:

   I feel very feared to return to China, but AAT thinks I have not suffered from significant harm, then suspects credibility of my claim.

   AAT states that the risk in my statement does not exist, but they did not give me an opportunity to explain, or offer me a chance to provide the details or evidence of persecution. They could not judge me just according to my statement not my true situation.  What they did is unfair to me.

3. In relation to ground 1, the first respondent suggests that there was no substance in the applicant’s assertion that he was not provided an opportunity to provide details or evidence.  The respondent notes that in his letter inviting him to attend the Tribunal, he was asked to provide any further evidence that was relevant and that he did not respond to this letter or, indeed, provide any further evidence when he attended the hearing on 8 December 2017. 

4. The first respondent submits the Tribunal did not merely consider the applicant’s statement. It is evident from the decision the Tribunal took into account the applicant’s statement, the departmental interview and the oral evidence of the applicant before it. 

5. The first respondent submits that there is no evidence to suggest that the Tribunal member acted unfairly or unreasonably.

6. I have quoted in some detail from the decision of the Tribunal because, in my view, it is clear that the Tribunal took account of all of the evidence before it.  It made findings of fact. It provided reasons for those findings. It made findings that were admittedly against the applicant but that, of itself, is not a jurisdictional error unless it can be suggested that the findings were not open to it on the material that was before it or that they took account of a ground that they should not have or other such similar reasons.

7. I am unable to identify any jurisdictional error on the basis that the applicant was denied the opportunity of putting his case to the Tribunal. 

8. Ground 2 is as follows:

   AAT thinks that I was threatened by Chinese Government, so I could not leave China smoothly, then they stated my evidence is not enough.

   AAT did not consider my real condition in China.  I have stated that I have been reported in China, so if I go back, I will be harmed seriously.  However, AAT did not believe that.  It said that I did not meet refugee criterion. How vague is it. AAT did not give me any explanation about my refugee application. They just want to hide their irresponsible behaviour.

9. The first respondent suggests that the above ground invites this Court to undertake merits review. 

10. It suggests that the ground really complains about the outcome of the hearing, rather than identifying jurisdictional error.

11. I am of the view that the ground cannot be made out.  It, indeed, invites the Court to undertake merits review and simply complains about the outcome.  As I explained at the very beginning of this case, this Court is not undertaking merits review.  It can only deal with jurisdictional error. 

12. Ground 3 is as follows:

    AAT officer could not accept my detailed explanation, and doubt my learning of Bible without any reason.

    AAT said I can only give limited response to their questions. I could not understand why they said like this.  I have answered everything about the Bible and New Testament. They always push me to answer more.  I talked a lot about my story. Then, they still asked me to talk more.  I did not know what they real wanted.  Finally, they said I had given limited response to their questions.  The judge is not fair to me.

13. I simply note the inconsistency with ground 3 in terms of the ground or the issues that were raised in ground 1, which stated that the applicant was not given an opportunity to put his case to the Tribunal. 

14. There is an internal inconsistency between ground 1 and ground 3.  In terms of the procedure conducted by the Tribunal, when questioning the applicant in relation to the nature and extent of his knowledge of Christianity, I note that it is open for the Tribunal to do that.  In Minister for Immigration & Citizenship v SZLSP,[1] at paragraphs 36 and 38-39, Kenny J said as follows:

    In SBCC,[2] the Full Court considered and rejected a similar argument, again relying on Gray J’s statements in Wang,[3] this time in the context of claimed adherence to Falun Gong [2006] FCAFC 129 at [46]-[49]:

    The second ground of appeal was said to go to the ‘apparent imposition by the Tribunal of a standard that was imposed as to the requisite level of knowledge of Falun Gong doctrine that might attract Falun Gong status’.  There was, it was said, no evidence before the Tribunal to indicate any ‘cut-off’ point for an acceptable minimum level of knowledge of a Falun Gong practitioner… 

    Where a person makes a claim to be an adherent of a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim

    [1] Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108.

    [2] SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129.

    [3]Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548.

15. And later on at paragraph 38 Kenny J said as follows:

    As to the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration, rather than made a determination by reference to a preconceived minimum standard of knowledge.  Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. 

    As the authorities emphasise, there is nothing objectionable in the Tribunal questioning the applicant about his or her beliefs.  When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal

16. It was open to the Tribunal based on the evidence that it had before it that it was not satisfied that the applicant was, in fact, a person who was practising his Christian belief both in China and in Australia.  In particular, they noted that the applicant said he had not been engaged in what could be regarded as organised religious activities within Australia and that he had studied the Bible privately.

17. I can detect nothing in the reasoning of the Tribunal which would indicate jurisdictional error.  The ground 3 cannot be made out. 

18. In those circumstances, I am not satisfied that any of the grounds have shown that there was an error in the Tribunal’s practice or their reasoning which would justify the Court intervening in the situation on the basis of jurisdictional error.

19. The application is accordingly dismissed.

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

Associate: 

Date:  9 April 2019