AWB16 v Minister for Immigration

[2018] FCCA 901

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWB16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 901

Catchwords:
MIGRATION – Protection visa applications – review of decision of Administrative Appeals Tribunal – whether the Tribunal ignored or failed to consider certain or other facts – whether the Tribunal erred by failing to consider the applicants’ evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 417, 424A, 438

Cases cited:

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

First Applicant: AWB16

Second Applicant: AWC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 885 of 2016

Judgment of: Judge Smith

Hearing date: 9 March 2018

Date of Last Submission: 9 March 2018

Delivered at: Sydney

Delivered on: 9 March 2018

REPRESENTATION

The first applicant appeared in person.

No appearance by or for the second applicant.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 885 of 2016

AWB16

First Applicant

AWC16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of the decision of the Administrative Appeals Tribunal made on 18 March 2016.  The Tribunal affirmed the decision of a delegate of the Minister made on 24 April 2014 to refuse to grant the applicants protection visas.  The applicants are husband and wife, who are citizens of China.  They arrived in Australia in 1998 and 1996 respectively. 

2. Soon after their arrival they applied for a protection visa, but that was refused. The review application was unsuccessful and so was the judicial review application. Over a decade later, the applicants applied to the Minister for exercise of his non-compellable power under s.417 of the Migration Act 1958 (Cth). That application too, was unsuccessful. On 2 April 2013 the applicants lodged a second application for a protection visa made possible by the application of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71.

3. The claims were essentially made by the first applicant and the second applicant took part in the application as a member of the first applicant’s family unit.  The first applicant’s claims were summarised in [20] and [21] of the Tribunal’s decision which I set out below:

   …

   •She came to Australia on a Business Visitor visa and meant to return on completion of her business mission: however, just before she planned to return she received a telephone call from her family in China informing her that she was in danger and would be persecuted by the Chinese Communist party (CCP) because of the following 3 reasons:

   •First, she will be further persecuted and fined under the false charge of giving a second birth. She will be physically tortured and will be fined exorbitantly by the village committee and the town government because she is suspected of violating the one child policy. She has two children and has broken family planning laws. Her name has been put on a Black Name List. After she came to Australia she made public speeches against the Chinese government pointing out that putting people with more than one child on a Black Name list is inhumane and against human rights. Someone reported her speech back to China and, as a result, her family were warned to pass a warning to her.

   •Second, in 1989 she participated in pro-democracy protests in Guangzhou she demonstrated against the Chinese dictatorship and corruption conducted by the Chinese government, in particular, the focal governments. After the Tiananmen Square incident in Beijing some students passed her house. She allowed 2 students (who were later considered by the government to be political dissidents) to stay at her house in Guangzhou for one night. She decided to help them and took them to her home town of Wenzhou for two months. When she came to Australia she was informed that the Public Security Bureau Police (PSB) were looking for her because she had once helped these counter revolutionary elements.

   •Third, she used to commemorate the 4 June massacre of students in Beijing with friends, in honour of the students who were killed. One of her friends later gave her.name to the PSB saying, under torture, that she had helping 2 students who were political offenders hide themselves in her home in Wenzhou.

   21.    …

   •Persecuted on return to China due to her Christian faith because there is a lack of religious freedom in China.

   •Unable to find employment and support herself on return to China due to having been absent from China for so many years.

   •Forcibly sterilised after the birth of her second daughter. The Delegate's Letter makes reference to a small scar on [the applicant’s] abdomen that she showed the delegate.

4. The Tribunal noted that at the first hearing conducted by it on 27 March 2015, the first applicant withdrew her claim in relation to being a pro-democracy supporter and providing accommodation to students who were considered to be political dissidents.

5. The Tribunal noted that the first applicant clarified that she wished to proceed only with her claims regarding China’s one child policy, being forcibly sterilised, her Christian religion and her inability to support herself if returned to China.  As I noted, the delegate made a decision on 24 April 2014 to refuse the applicants protection visas, and the applicants applied to the Tribunal for review of the decision.

6. After the hearing which occurred on 27 March 2015, the Tribunal sent to the applicants a letter inviting comment on information pursuant to s.424A of the Act. That invitation has some relevance, which I will discuss briefly later. The applicants were invited to attend, and did attend, a second hearing on 7 March 2016 and the Tribunal handed down its decision affirming the delegate’s decision on 18 March 2016.

Tribunal’s decision

1. In its reasons for decision, the Tribunal explained at [31] that it had a number of concerns in relation to the first applicant’s claims.  It went on, over the next 15 pages, to summarise those concerns and to explain the bases for its conclusions.  There is an accurate summary of those paragraphs at [6] of the respondent’s decisions, which I will adopt and set out below: 

   6.The Tribunal accepted that the Applicant left China because she had been sterilised, and was a Christian and would wish to practice Christianity in China: [89], but otherwise did not find her credible: [31], [88]. The Tribunal noted her past false claims to the Department and Refugee Review Tribunal: [32]-[38], failure to familiarise herself with the delegate’s decision and address the concerns therein raised: [39-42], inconsistency of her claims concerning the one child policy with country information: [43]-[48], her vague and inconsistent evidence concerning her claims to have practised Christianity in China: [49]-[57], and difficulties with her evidence that she practised Christianity in Australia from 1996: [58]-[66]. The Tribunal found that having regard to the nature of her Christian activities in Australia she would not proselytise in China (see [67]), and would be low profile supporter of her house church in China in a way that would not attract adverse attention: [72]. The Tribunal did not accept that the Applicant would be unable to support herself in China: [73]-[78]. The Tribunal also noted the Applicant’s withdrawal of her claim to fear harm for reasons of her political opinion, her delay in leaving China after the claimed arrest of her uncle in 1996, and her remaining unlawfully in Australia for over ten years after the refusal of her original application for a protection visa as reflecting adversely on her credit: [79]-[87].

2. I note in particular the finding at [72] about the nature of the applicants’ practice of Christianity and what they would do if they were to return to China. 

3. On the basis of the findings made by the Tribunal in those paragraphs, and concerns that it had in respect of the evidence before it, the Tribunal made its findings at [89] and [90], which are set out below:

   89.    Based on the evidence presented, the Tribunal accepts that:

   ●[The applicant] left China in 1996 due to her fundamental opposition to the Chinese government because she had been brutally and forcibly sterilised after the birth of her second daughter [daughter’s name].

   ●Together with her husband, [the applicant] now identifies as a Christian, was baptised on 25 December 2008 at the Ashfield Baptist Church and, since then, they have regularly attended weekly church services there until early 2013 when she and her husband started attending weekly services at the Campsie Chinese Church.

   ●[The applicant] and her husband [husband’s name] will continue to practice their Christian faith if returned to China.

   90.    The Tribunal does not accept:

   ●[The applicant] will be persecuted and fined under the false charge of giving a second birth, or that her name has been put on a Black Name List for this reason.

   ●[The applicant] made public speeches in Australia against the Chinese government pointing out that putting people with more than one child on a Black Name List is inhumane and against human rights and this has been to authorities in China.

   ●[The applicant] has been involved in political or pro-democracy activities.

   ●Neither [the applicant] nor [the applicant’s husband] attended a house church before they left China and [the applicant’s husband] did not go to Xinjiang in support of his uncle, a preacher who was proselytising in that province for two months before Chinese New Year on 19 February 1996.

   ●Neither [the applicant] nor her husband […] are persons of interest to the authorities in China and nor have they been persecuted by authorities because of their Christian beliefs.

   ●[The applicant] and her [husband] will be unable to find employment and support themselves on return to China due to their having been absent from China for nearly 20 years.

4. The Tribunal then, applying those findings to the questions before it which arose under sub-.s36(2)(aa) of the Act, was not satisfied that the criterion in that section was met, nor that the criteria in sub-ss.36(2)(b) or (c) of the Act were met and for that reason affirmed the decision of the delegate.

Consideration

1. In their application for judicial review, there are 7 paragraphs of what are called grounds.  Although in those paragraphs there are assertions that the Tribunal ignored certain facts, failed to consider other facts and did not take their evidence into consideration, any consideration of the Tribunal’s reasons reveals that what is really meant by the grounds is that it was unfair that the Tribunal did not accept those grounds or that evidence.  However, even that is only partially true.

2. As shown in the summary of the Tribunal’s reasons set out above, the Tribunal in fact accepted the fundamental factual bases for the applicants’ claims.  In particular, the claim to be currently practising Christians.  What stood against the applicants was not only their own evidence about the manner in which they practised their faith, but also the country information before the Tribunal concerning the attitude of the Chinese authorities towards those who practise the Christian faith in a manner similar to the applicants. Although there were significant concerns about the applicants’ credibility that were expressed by the Tribunal, that was the fundamental basis for its decision.

3. In effect, what the applicants seek in the grounds of their application is for this Court to make findings of fact which are different to those made by the Tribunal.  That, however, is not the task of this Court.  This Court is confined to determining whether the Tribunal has acted within the limits of its powers. 

4. The first applicant appeared today unrepresented and made oral submissions which, like the grounds in the application, went to the bases upon which she claims that she and her husband would face difficulties if they were to return to China.

5. As with the grounds in the application those submissions suffer from the difficulty that it is beyond the Court’s power to make a determination of that issue. 

6. It ought to be noted that in accordance with his obligation as a model litigant, the Minister put before the Court some material which was referred to in a certificate reportedly given under s.438(1) of the Act.

7. The material came in two forms: one was redacted, and the other was not redacted.  I have had regard to both of them to determine whether or not there was a real issue that should be determined by the Court and whether the material proffered by the Minister ought to be admitted into evidence.  I came to the view that there was not a real issue.  At a very high level of generality, the material concerned document examination of identification documents relied upon by the applicants for the purposes of their entry into Australia.

8. One of the identification documents was found to have been a genuine document that had been fraudulently altered. That information was put expressly to the applicants in the s.424A letter sent by the Tribunal to the applicants on 6 January 2016 (see fourth and fifth dot points on page 349 of the court book).

9. In any event, and perhaps more importantly, all of the information concerning the authenticity of those identification documents was consistent with what the applicants had already informed the Department and the Tribunal, so it was not information which might have taken them by surprise, in other words, of which they were not already aware.

10. The redacted portion of the material, in my view, without expressing what it was, could not possibly have had any relevance to any of the issues before the Tribunal.  It was on basis of that consideration of the material, together with the plain sensitivity of the redacted material, that I decided that there was no first issue that arose, and two, no utility in admitting the evidence into material and formally making it part of the proceedings.

Conclusion

1. Having regard to the bases of the Tribunal’s decision, and in particular, its reliance on country information as applied to its acceptance of the basic assertions of fact, asserted claims made by the applicants and there being no evidence of any procedural unfairness, and in light of the fact that all of the grounds raised by the applicants only go to the merits of the Tribunal’s decision rather than to its legality, I am not satisfied that there is an jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       17 April 2018