Bay17 v Minister for Immigration

[2019] FCCA 3236

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAY17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3236

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a protection visa – whether the Tribunal properly considered applicants’ claims – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

First Applicant: BAY17

Second Applicant: BAZ17

Third Applicant: BBA17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 728 of 2017

Judgment of: Judge Manousaridis

Hearing date: 1 November 2019

Date of Last Submission: 1 November 2019

Delivered at: Sydney

Delivered on: 14 November 2019

REPRESENTATION

Applicant in person, assisted by an interpreter, on behalf of the second applicant, and as litigation guardian for the third applicant.

Solicitors for the First Respondent: Ms J Noakesmith of DLA Piper

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 728 of 2017

BAY17

First Applicant

BAZ17

Second Applicant

BBA17

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, citizens of the People’s Republic of China, apply for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa).

Background

1. The first two applicants are wife and husband, and the third applicant is their son. The first named applicant (applicant) first entered Australia in March 2008 holding a student visa. The applicant was granted further student visas, but her last student visa ceased on 15 March 2015. The second applicant first entered Australia in April 2007, also as the holder of a student visa. The second applicant was granted a further student visa, but his last student visa ceased on 15 March 2015. The third applicant was born in Australia in February 2015.

2. The applicants applied for a Protection visa on 24 June 2014. The applicant made a claim for protection on her own behalf, but the second and third applicants applied as members of the applicant’s family unit. A delegate refused their application on 3 July 2015 and, on 23 February 2017, the Tribunal affirmed the delegate’s decision.

Claims for Protection

1. The applicant stated her claims for protection in a document titled “Application for my husband and me” that formed part of the application for a Protection visa (Statement).[1] The claims the applicant there made are as follows:

   [1] CB35-37

   a)Since arriving in Australia in 2008 the applicant has been practising her faith of Catholicism. The applicant was born into a Catholic family, and was brought up as a Catholic. She began to attend “the house church” from the age of 8, and was baptized at the age of 10.

   b)The applicant remembers that the local government did not approve families like hers, and it was not rare when those families were “oppressed, suppressed or persecuted”. When she was young the local government stormed gatherings held at her home, and her family was always the target of all suppressions.

   c)After the applicant arrived in Australia she searched for a “proper church”, but she could not find one like her previous church. At first the applicant joined some of her “countrymen” in setting up a small house church. The members of that church included overseas students, their parents, and local Chinese residents. The church lasted until the applicant found “my present Chinese Catholic Church” in Sydney.

   d)In 2012, when she returned to China, the applicant attended a gathering at her home. The applicant preached the gospel to her fellow adherents, and distributed among them materials the applicant had brought from Australia. That was well received among the applicant’s fellow adherents, and the fellow adherents from the applicant’s parents’ church and hometown also showed great interest. The applicant’s parents “shepherded several churches in other places”, some of which were in the countryside. The applicant’s elder brothers were also enthusiastic in preaching the gospel and printing and distributing “the gospel pamphlets”.

   e)At the beginning of 2014 the applicant returned to China for the second time, bringing with her more gospel material. When she returned to Australia, however, the applicant received news that the police arrested her parents and older brothers for preaching the gospel during the Easter holiday. All those who attended the church were investigated, their names entered into a book, and all their gospel material was confiscated.

   f)The applicant was also “put on investigation” because the police suspected her of preaching the gospel from outside of China and providing illegal religious material. While the police were questioning her parents, they sent the applicant a warning through them that the applicant must come back to China, confess all of her crimes, and stop preaching immediately. This was conveyed to the applicant by her parents who strongly advised the applicant not to use the internet to preach the gospel, because the computer was “already being tapped”.

   g)The applicant’s house church was to hold a great praying activity to usher in the Pentecost in 2014. The applicant, however, had “just learnt” from her parents that the police sent notices prohibiting any form of gathering, and had sent security forces on patrol. That convinced the applicant that the religious situation in China has not improved significantly, and that her church “is still being oppressed and is in great danger, so all activities have to go underground”. The applicant, however, will not stop preaching.

   h)The applicant applies for protection to obtain a sense of security for her faith, and to have a safeguard for her right to choose her faith and preach the gospel.

   i)The applicant and second applicant married in 2010. They share a common faith, being both baptised in a Catholic church in Sydney. The second applicant’s husband opposes their marriage. The second applicant’s family “have even attempted to force” the second applicant “to marry a pagan girl by arranging marriage for him”. Their marriage is a witness of their faith.

2. The applicant supported her claims with a number of documents. These included the following:

   a)Certificates showing that the applicant and second applicant were baptised in April 2014 at a particular church (Church).[2]

   b)Two letters from a person who describes himself as the “catechism” supervisor at the Church, stating that the applicant and the second applicant have been attending the Church’s catechism class since a day in May 2013, and they have been studious students, participating in class discussions, and are inspired to learn about the Catholic faith. The letters also state the applicant and second applicant were baptised at the Church in April 2014.[3]

   c)A letter from the president of the Church stating that the applicant and second applicant have been attending the Church since June 2012.[4]

   d)A letter from a person who describes himself as the “Chaplain Pastor” of the Church confirming the applicant and the second applicant have been regularly attending the Church since June 2012.[5]

   [2] CB43, 44

   [3] CB58, 59

   [4] CB60

   [5] CB61

3. Before the Tribunal the applicant made additional claims. First, she claimed that because the second applicant’s parents did not accept his marriage to the applicant they will not allow the third applicant to be registered under their “hukou”.[6] Second, the applicant said she had worries about the applicants’ financial situation in China.[7] Third, the applicant feared that because the birth of the third applicant has not been registered in China she might be considered to have had a child out of wedlock.[8]

   [6] CB143, [44]

   [7] CB144, [47]

   [8] CB144, [47]

Tribunal’s reasons

1. The Tribunal accepted the applicant started to attend a Roman Catholic Church in Australia in June 2012; that she continues to attend that church, together with the second applicant; and that she demonstrated to the Tribunal some understanding of the rituals and beliefs of the Roman Catholic Church, including identifying the seven sacraments.[9] The Tribunal, however, did not accept:

   a)the applicant was born into a Roman Catholic family loyal to the Roman Catholic Pope;

   b)the applicant was brought up as a Roman Catholic in China; or that she was baptised in the Roman Catholic faith in China;

   c)the applicant’s family in China including her parents and brothers are or have ever been members of the Roman Catholic Church loyal to the Pope in Rome; or that the applicant had any interest or desire to practice the Roman Catholic faith when she arrived in Australia in April 2008;

   d)the applicant took Catholic materials to China from Australia in 2012 or 2014;

   e)the applicant preached the gospel in China in 2012 or 2014, or at any other time;

   f)the applicant’s family home was ever raided, or her family has ever been of adverse interest to the Chinese authorities with any actual or perceived involvement in unregistered Catholic church activities;

   g)the applicant’s mother or father or siblings or any other family member were arrested or detained in 2014 or at any other time for participating in unregistered Roman Catholic activities, or for possessing or using prohibited foreign materials supplied by the applicant or by anyone else; or

   h)the applicant was under investigation by the authorities.[10]

   [9] CB142, [40]

   [10] CB141-142, [39]

2. The Tribunal relied on the following matters:

   a)When the Tribunal asked the applicant whether any members of her family had any problems concerning the authorities, the applicant said her father had been detained, and that no one else from her family had ever been arrested or detained. That was inconsistent with the Statement where the applicant claimed that after she returned to Australia in 2014 she received news that her parents and elder brothers had been arrested, punished, and abused.[11]

   b)The applicant was unable to provide much detail about the content of the material she claims to have taken to China, or of the content of her preaching, or provide any explanation about how the applicant thought the material she claims to have taken into China would help Chinese Catholics understand the Pope or the Roman Catholic faith. The Tribunal found that the applicant’s response to its questions about the contents of the materials she claims to have taken to China to be “more of a guess than an informed response”.[12]

   c)In response to the Tribunal’s question about how she was unable to find a Chinese speaking congregation in four years while in Australia, the applicant said she was not as dedicated to Catholicism at that time, but became more dedicated to Catholicism in around 2011 when her father in China became ill with a gallstone. The Tribunal found this evidence difficult to reconcile with the applicant’s claim made in the Statement that, because she was unable to find a Chinese speaking congregation when she arrived in Australia, the applicant’s dedication was such that she formed an informal gathering of Chinese Australian Catholics.[13]

   d)In response to the Tribunal’s question about what materials the applicant and others used at the informal Catholic gatherings they attended in Australia between 2008 and 2012, the applicant said she did not have access to any Catholic materials or literature at all before June 2012. The Tribunal found it to be “of concern” that the applicant claimed she could not source any Catholic literature for around four years in Australia, while also claiming she was devout enough to form and attend informal gatherings of Catholic Chinese Australians.[14]

   e)When the Tribunal asked the applicant how she was able to source the material she claims to have taken to China in 2012 in circumstances where the applicant claimed she was unable to source any Catholic literature for around four years in Australia, the applicant changed her evidence, claiming that she found some materials on the internet.[15]

   f)The applicant was unable to give a clear account of the problems she claimed occurred during the family gathering to which she referred in the Statement. In particular, when asked what the applicant meant by “stormed”, the applicant said the Public Security Bureau (PSB) would “sabotage” the gatherings by sending PSB personnel to monitor them. The Tribunal found that “once again, the detail of the applicant’s oral evidence appeared to evolve in response to the questions and concerns put to her”.[16]

   g)The applicant was unaware the Pope visited Australia in July 2008 for World Youth Day.[17]

   [11] CB137-138, [26]

   [12] CB139, [31]

   [13] CB139, [32]

   [14] CB139-140, [33]

   [15] CB140, [33]

   [16] CB140-141, [35]

   [17] CB141, [36]

3. Although the Tribunal accepted the applicant started to attend a Roman Catholic Church in Australia in June 2012; that she continues to attend that church, together with the second applicant; and that she demonstrated to the Tribunal some understanding of the rituals and beliefs of the Roman Catholic Church, including identifying the seven sacraments, the Tribunal was not satisfied the applicant was a genuine Roman Catholic, or that she has any desire or intention to practice the Roman Catholic faith in China in a registered or unregistered church in China in the reasonably foreseeable future.[18] The Tribunal relied on the matters to which I have referred to in paragraph 8 of these reasons, and also on the Tribunal’s impressions that the applicant’s understanding of the rituals and practices of the Roman Catholic faith are “superficial and lacking in detail”, [19] and the matters recorded in the delegate’s decision, namely, the applicant’s inability to demonstrate any understanding of Pentecost, or to detail the circumstances leading to or surrounding the crucifixion or resurrection of Christ.[20]

   [18] CB143, [43]

   [19] CB142, [40]

   [20] CB143, [43]

4. Relying on country information it considered to be reliable, the Tribunal did not accept the third applicant needs the consent or support of his paternal grandparents to secure household registration (hukou) in China, or that he will be precluded from attending government schools or health facilities in China.[21]

   [21] CB144, [46]

5. The Tribunal accepted that the applicant and the second applicant may have breached a family planning law, and that there is a real chance they will be required to pay a fine, but found that that would be as a consequence of the application of a law of general application, and that, whatever hardship the imposition of a fine may cause the applicant, it would not amount to serious or significant harm to the applicants.[22]

   [22] CB146, [56]

6. The Tribunal also considered the Roman Catholic faith of the second and third applicants. The Tribunal accepted the second applicant was baptised in the Roman Catholic faith in Australia, and that he participated in Roman Catholic activities in Australia, including attending church and religious classes. The Tribunal did not accept, however, the second applicant is a genuine believer or follower of the Roman Catholic faith.[23] The Tribunal relied on its finding that the second applicant “demonstrated understanding of the most basic elements of Catholic belief and practice appears superficial”.[24] The Tribunal also found that the second applicant’s explanation for why he began to participate in Roman Catholic activities in 2012, or 2013, or 2014, some four years after marrying the applicant who had claimed to have been a practising Roman Catholic since the age of 8, was “also lacking in detail and unconvincing in the context of all of the evidence advanced”.[25] As for the third applicant, the Tribunal noted the third applicant has not made any active choice to participate in the Roman Catholic faith, but then considered country information about the practice of Catholicism in China. The Tribunal was not satisfied the third applicant would not be free to choose his own religion in China, or that he wold face a real chance of serious or significant harm in China should he practice the Roman Catholic faith in China in the reasonably foreseeable future.[26]

   [23] CB149, [73]

   [24] CB149, [72]

   [25] CB148, [72]

   [26] CB149, [75]

Grounds of application

1. The applicants, who are not legally represented, set out in their application in some detail the matters on which they rely. It is in the form of submissions made by the applicant, and it contains two parts. One part (Part 1 of the grounds) appears under the heading “Orders sought by Applicant”, and the other part (Part 2 of the grounds) appears under the heading “The Grounds of Application are”. In Part 1 of the grounds the applicant made the following statements and claims:

   a)The Tribunal did not consider carefully and reasonably the applicant’s application for review, and, in any event, its findings were illogical and improper.[27]

   b)The Tribunal formed unrealistic and groundless impressions. The applicant refers to the Tribunal’s finding that the applicant’s claimed commitment to the Roman Catholic faith was inconsistent with her not being “so clear about the date of publicized visit of Pope Benedict XVI for World Youth Day in Australia on 13 July 2008”. The applicant claims it was not logical for the Tribunal to rely on this.[28]

   c)The Tribunal’s decision is “full of misinterpretation, biased impression, and misrepresentation”.[29]

   d)The Tribunal gave “inconsiderable” assessment to the applicant’s family background, particularly her Australian born child.[30]

   e)The Tribunal ignored the fact that the Roman Catholic Church is “out of legitimate status and never recognzsed [sic] by China’s Patriotic Churches and authority”.[31]

   f)The applicant is “overwhelmed about the decision towards my religion”, especially the Tribunal’s ignorance about the applicant’s explanation and evidence concerning the applicant’s reasons for her religious practice.[32]

   g)The Tribunal’s assessment of the applicant’s knowledge of Roman Catholicism “is unrealistic and prejudiced”.[33]

   h)The Tribunal “overviewed” (which I take to be intended to mean “overlooked”) the harsh family planning policy of the Chinese government, and the applicant’s family’s circumstances.[34]

   i)The Tribunal ignored the fact the applicant is a committed Catholic, that she and her husband have received baptism, and fully involved in regular church practice, and “devoted ourselves in missionary and gospel teaching”.[35]

   j)The Tribunal ignored “the wrecked and challenging situation in China where missionary work is outlawed and underground church practice is targeted”.[36]

   [27] Part 1 of grounds, [1]

   [28] Part 1 of grounds, [2]

   [29] Part 1 of grounds, [3]

   [30] Part 1 of grounds, [3]

   [31] Part 1 of grounds, [4]

   [32] Part 1 of grounds, [5]

   [33] Part 1 of grounds, [6]

   [34] Part 1 of grounds, [6]

   [35] Part 1 of grounds, [7]

   [36] Part 1 of grounds, [8]

2. The applicants make the following claims in Part 2 of the grounds:

   a)The applicant and the second applicant used to be involved in house church activities before they came to Australia, and they now fear “the harsh religious context and oppression imposed by government on underground church activities in China”.[37]

   b)The applicant and her husband are committed adherents who have received baptism, have been involved in church activities, and in missionary work, and fear being persecuted for those reasons if they return to China.[38]

   c)China has made no significant improvement in religious freedom, and underground churches remain targeted, family churches are unauthorised, and family congregations are repressed and intimidated.[39]

   d)The applicants apply for protection for the sake of their religious freedom, their mission in gospels, and their religious commitment.[40]

   [37] Part 2 of grounds, [1]

   [38] Part 2 of grounds, [2]

   [39] Part 2 of grounds, [3]

   [40] Part 2 of grounds, [4]

1. The applicant, who appeared for herself and for the second applicant, and as litigation guardian for her son, made oral submissions at the hearing before me. The applicant submitted:

   a)The Tribunal did not seriously read the documents the applicants provided to it in support of their claim they were Catholic.

   b)The Tribunal did not really understand the underground churches in China.

   c)The Tribunal only looked at the issues on the surface.

   d)The Tribunal did not consider what would occur to the applicants if they returned to China.

   e)During the hearing before the Tribunal the applicant was nervous, and this led the Tribunal to believe the applicants were not credible.

   f)Because of emotional upset, the applicants sometimes did not give positive answers.

   g)The second applicant was emotional and, after the hearing, the second applicant was diagnosed with depression.

2. None of the matters on which the applicants rely reveal any jurisdictional error.

   a)In relation to the claim I identify in paragraph 13(a) of these reasons, the Tribunal identified the applicant’s claims, and it is apparent from the Tribunal’s reasons for decision that it considered them carefully. The Tribunal asked the applicant and the second applicant questions in relation to their claims, the Tribunal considered the answers and all other evidence it considered to be relevant; and, for the reasons it gave, the Tribunal did not accept the applicant’s claims. This includes claims relating to the penalties to which the applicant and second applicant might be exposed under China’s family planning laws, and whether the third applicant would be able to obtain registration. The Tribunal did not act unreasonably or illogically in the manner in which it proceeded, and its findings are not otherwise unreasonable, illogical, or improper.

   b)In relation to the claim I identify in paragraph 13(b) of these reasons, it was reasonably open to the Tribunal to consider that a person who claimed, as the applicant did, that she was a devout adherent of the Roman Catholic faith, and had been brought up in a devout family, would be aware of the Pope’s impending visit to Australia on World Youth Day, and that the applicant’s having been unaware of that fact was a matter that was reasonably capable of raising some doubts about the applicant’s claims that she was a devout adherent of the Roman Catholic faith.

   c)In relation to the claim I identify in paragraph 13(c) of these reasons, the applicants have not identified the misrepresentations or misinterpretations the Tribunal made. Nor do the applicants identify the matters on which they rely for claiming the Tribunal was biased. The claim, therefore, discloses no jurisdictional error by the Tribunal.

   d)In relation to the claim I identify in paragraph 13(d) of these reasons, the Tribunal did consider the circumstances of the applicant’s son. As I have already noted, the Tribunal considered whether the third applicant would be denied registration,[41] and it also considered the third applicant’s being brought up a Roman Catholic.[42]

   e)In relation to the claims I identify in paragraph 13(e) of these reasons, given the Tribunal was not satisfied the applicant or the second applicant were genuine adherents of the Roman Catholic faith, it was unnecessary for it to consider whether they would face persecution in China because of such faith. The Tribunal, however, considered country information concerning the practice of Catholicism in China when it considered the circumstances of the third applicant, and found that the country information did not suggest that ordinary participants in either registered or unregistered Roman Catholic gatherings in China face a real chance of serious or significant harm in China in connection with the expression of their Roman Catholic faith.[43]

   f)The claim I identify in paragraph 13(f) of these reasons appears to claim the Tribunal was unaware of the applicant’s evidence concerning her religious practice. I do not accept that claim. The Tribunal identified and considered the applicant’s evidence she gave in support of her claim that she was a devout adherent of the Roman Catholic faith.

   g)The claim I identify in paragraph 13(g) of these reasons does not state the manner in which it is said the Tribunal’s assessment of the applicant’s knowledge of Roman Catholicism “is unrealistic and prejudiced”. The Tribunal gave reasons for its conclusion that the applicant and second applicant were not genuine adherents of the Roman Catholic faith. There is no basis for finding the Tribunal was prejudiced; and there is also no basis for finding the Tribunal’s assessment of the applicant’s knowledge of Roman Catholicism was one that was not reasonably open to them.

   h)In relation to the claim I identify in paragraph 13(h) of these reasons, the Tribunal did not overlook China’s family planning laws, or how they could apply to the circumstances of the applicants.

   i)In relation to the claim I identify in paragraph 13(i) of these reasons, the Tribunal did not overlook the applicants’ claims that the applicant and second applicant were committed Roman Catholics. The Tribunal considered that claim and, for the reasons it gave, it did not accept them.

   j)The claims I identify in paragraph 14 of these reasons restate the applicants’ claims for protection, and, for that reason, disclose no jurisdictional error.

   [41] CB144-146, [47]-[58]

   [42] CB149, [74], [75]

   [43] CB149, [75]

3. I then turn to the submissions the applicant made at the hearing before me.

   a)The claims I have identified in paragraph 15(a) and 15(c) of these reasons are to the effect that the Tribunal did not read the documents on which the applicants relied with an open mind, or with a willingness to give them proper consideration, and that the Tribunal looked at issues superficially. I do not accept these claims. The Tribunal considered the documents the applicant provided in the light of other evidence that was relevant to the Tribunal’s assessment of the applicants’ claims; and it considered the issues that arose on the application for review that was before it. That is evident from my summary of the Tribunal’s reasons and from the Tribunal’s reasons themselves.

   b)As for the claim I have identified in paragraph 15(b) of these reasons, it is the case the Tribunal did not consider, at least in any detail, country information about underground churches in China. It did not do so, however, because the Tribunal was not satisfied the applicant and the second applicant were genuine adherents of the Roman Catholic faith.

   c)As for the claim I have identified in paragraph 15(d) of these reasons, I do not accept the Tribunal did not consider what would occur to the applicants if they returned to China. The ultimate question the Tribunal considered is whether there was a real chance any of the applicants would suffer significant harm for the reasons they claimed or which the Tribunal considered the applicants claimed they would suffer harm.

   d)As for the claim I have identified in paragraph 15(e) of these reasons, the Tribunal recorded  in its reasons that during the hearing before it the applicant said she was nervous and this made her feel dizzy at times. The Tribunal said it was mindful the applicant was nervous. There is no evidence, however, that the applicant’s nervousness affected her ability to participate meaningfully in the hearing, or to understand or answer questions; and the applicant, understandably, given the passage of time, and there being no transcript of the Tribunal hearing in evidence before me, the applicant was unable to identify any particular evidence or submission she gave or made, or which she failed to give or make, because of her nervousness.

   e)As for the claims I have identified in paragraphs 15(f) and (g) of these reasons, there is nothing in the reasons of the Tribunal that suggests the applicant or second applicant manifested any difficulties in understanding and answering questions; and the applicant was unable to identify the answers the applicant and second applicant claimed were not positive. Further, there is nothing in the Tribunal’s reasons that indicates the second applicant experienced any emotional discomfort such as to have affected his ability to meaningfully participate in the hearing, or to understand and answer questions asked of him.

Conclusion and disposition

1. None of the matters on which the applicants rely discloses any jurisdictional error by the Tribunal. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs at the time I pronounce my order dismissing the application.

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

Associate: 

Date: 14 November 2019