AXR16 v Minister for Immigration

[2018] FCCA 1901

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXR16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1901

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal was biased.

Cases cited:

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17
Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28

Applicant: AXR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 803 of 2016

Judgment of: Judge Riley

Hearing date: 19 June 2018

Date of last submission: 19 June 2018

Delivered at: Melbourne

Delivered on: 19 June 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Laura Groves

Counsel for the second respondent: No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application filed on 20 April 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 803 of 2016

AXR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)[1]

Introduction

[1]     Reasons for judgment were given orally on 19 June 2018. The applicant filed a notice if appeal on 5 July 2018. The registry advised chambers on 6 July 2018 that the applicant had filed a notice of appeal. Chambers ordered a transcript of the reasons for judgment on 6 July 2018. Auscript provided the transcript of the reasons for judgment on 9 July 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 11 July 2018.

1. This is an application for review of a decision of the Administrative Appeals Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the applicant a protection visa.

2. The applicant is a citizen of China from Fujian Province.  She applied for a student visa in China in September 2007.  She was granted a student visa on 17 March 2008.  She came to Australia on 5 April 2008.  The applicant was granted a further student visa on 5 May 2008, which ceased on 15 March 2010.  The applicant then remained in Australia without a visa until 18 March 2014, when she applied for a protection visa.

3. The applicant said that she was a Christian who was baptised in China in February 2004 as a teenager.  She said that she began to attend the Local Church at that time.  She claimed that she was arrested when she was 17 years old in December 2007.  She claimed that she was interrogated and tortured.  She said that she was released after 11 days when her father paid an officer a bribe.  She said her mother was also arrested and not released until 7 March 2008.  The applicant said that shortly after these events, she was granted a student visa and came to Australia. The applicant said that her father had taken over the leadership of a Local Church and that this also put her at risk. 

4. The Tribunal accepted the applicant’s claim that she was a Christian and a member of a Local Church.  The Tribunal accepted that the applicant became a Christian in China as a teenager.  The Tribunal accepted that the applicant had practised Christianity in Australia.

5. However, the Tribunal did not accept that the applicant had been arrested in December 2007 and interrogated and tortured and released after her father paid a bribe to officials. The Tribunal did not accept that the applicant’s father had a leadership position in the Local Church since 2014. 

6. The Tribunal accepted that the applicant’s church was described by the Chinese authorities as an evil cult. However, the Tribunal did not accept that the applicant faced a real risk of serious or significant harm if she were to return to China.  The Tribunal noted that the applicant did not proselytise in Australia beyond her social and domestic circles and did not consider that she would proselytise to any greater extent in China.  The Tribunal considered that a person in China with the applicant’s level of involvement in Christian practices would not be subjected to persecution or significant harm.

7. The Tribunal gave a number of reasons for not accepting that the applicant was a credible witness in relation to her claims of being arrested and her father being a senior member in the church.  The Tribunal noted a report by China Aid entitled Persecution by the Government on Christian House Churches within Mainland China, January 2007 – December 2007. It recounted 788 cases of persecution and 693 cases of detention in China tabulated by region and municipality.  The Tribunal noted that that report did not mention any such incidents in the Fujian Province in 2007, where the applicant and her mother lived at that time.

8. The Tribunal noted that the United States Department of State International Religious Freedom report for 2007 did not make any mention of such events occurring in relation to the applicant or her mother.  The Tribunal also noted that the applicant’s claims were not borne out by information relating to 2009 to the effect that the local government in Fujian was fairly tolerant of unregistered churchgoers. The Tribunal noted that the applicant had provided no evidence relating to her arrest or her mother’s detention for three months, apart from her own claims.

9. The Tribunal noted that, when asked why she had come to Australia to study, the applicant only said that she wanted to study and work.  She did not say that she had any difficulties because of her faith.

10. The Tribunal noted that the applicant arrived in Australia in April 2008 but did not start attending church until February 2009.  The Tribunal did not accept that a person who had such a high level of commitment to the Local Church that she would have been detained, questioned and tortured in China, would not have sought to attend a Local Church more quickly upon her arrival in Australia.

11. The Tribunal considered that the fact that the applicant did not apply for protection for more than six years after she arrived in Australia and for more than four years after her student visa was cancelled indicated that she did not have a genuine fear for which she needed protection in Australia.

12. For those reasons, the Tribunal affirmed the delegate’s decision.  The applicant then sought review in this court. 

13. The applicant’s grounds as stated in her application filed on 20 April 2016 are as follows:

    1. I believe that the Tribunal’s hearing just goes through certain formality and that the Tribunal has apparently made it’s decision before the hearing, and that the Tribunal has never ever provided me a genuine opportunity to give my evidence or present my arguments.

    2. I believe that I am unfairly deprived of the basic rights of being protected by the Australian government due to the Tribunal member’s incorrect and unfair decision on my review application.

    3. I am a major activist of the Local Church (a.k.a. “shouters”) both in China and Australia. The Local Church is regarded as “Evil Cult” by the Chinese government. If I go back to China, I must become a victim of persecution.

14. The applicant’s affidavit in support of her application simply said that the facts asserted in her application were true.  The applicant did not file any written submissions.  The applicant’s oral submissions before the Court clarified that the applicant’s challenge to the Tribunal’s decision was based on the ground of bias.  The applicant did not say whether she was alleging actual bias or a reasonable apprehension of bias.

15. The test for actual bias is that a decision‑maker’s mind has been so committed to a particular result that it is incapable of being persuaded by any contrary evidence or argument.[2]  The test for apprehended bias, in the context of an administrative decision‑maker, is that a hypothetical, fair minded, lay observer, properly informed as to the nature of the proceedings, might reasonably apprehend that the decision‑maker might not have brought an impartial mind to making the decision.[3]

    [2] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J.

    [3] Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 at [28] per Gleeson CJ, Gaudron and Gummow JJ.

16. The reasons that the applicant said that the Tribunal was biased were the following. She came to Australia in April 2008 but did not go to church until February 2009.  The applicant explained that she was only 17 when she came to Australia and that she came from a country where it was not possible to be open about going to church and therefore it took some time for the applicant to find an appropriate church to attend.

17. The applicant also said that the Tribunal was biased because it relied on the fact that she did not apply for a protection visa for six years after her arrival in Australia and four years after her visa was cancelled.  However, it is well established that it is open to the Tribunal to rely on a delay in lodging a protection visa application to doubt that an applicant has a genuine fear of persecution.  The applicant pointed out, correctly, that there is no law that protection visa applicants must apply as soon as they arrive in Australia.  However, it remains open to the Tribunal to place weight on that circumstance.

18. The applicant noted that the Tribunal accepted that she was a loyal follower of her church but said that the Tribunal wrongly classified her church as an unregistered organisation, when in fact it was a cult which was banned in China.  However, the Tribunal understood the nature of the applicant’s church and its position in China.  Consequently, I fail to see how that could amount to a basis for a finding that the Tribunal was biased.

19. The applicant also said the Tribunal was biased because it did not accept that her father was a senior official in the church.  However, it seems to me that it was open to the Tribunal to form the view that the applicant was not a credible witness for the reasons that it gave in relation to the applicant’s father, and other matters.

20. The applicant said that the Tribunal’s bias was demonstrated by its decision that her travel to Australia was not motivated by fear.  The applicant claimed that she applied for her student visa in July 2007 and was then arrested in October 2007.  She said that there was no inconsistency between proceeding to implement her plan to study in Australia after she had been arrested.  However, it seems to me that it was reasonably open to the Tribunal to rely on the fact that, when asked why she came to Australia to study, she did not mention anything about any religious difficulties in China.

21. The applicant’s explanation for not attending a Local Church immediately after arriving in Australia does seem plausible to me. However, such assessments are not my decision. I do not consider that the Tribunal’s finding in that regard was so unreasonable that it is indicative of bias.

22. Moreover, the Tribunal did not form the view that the applicant was not a credible witness only because of her delay in attending church in Australia.  That issue was one of a number of reasons which, together, persuaded the Tribunal that the applicant was not a credible witness.  It seems to me that the Tribunal’s reasons in that regard were reasonably open to it when taken as a whole and are not indicative of bias.

23. I have looked at the Tribunal’s reasons for decision and decision making process and I have been unable to find anything that might amount to a jurisdictional error.  Consequently, the application to this court must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  11 July 2018