BFK18 v Minister for Immigration
[2020] FCCA 2185
•10 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFK18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2185 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (the Tribunal) – whether it was beyond the exercise of its jurisdiction or irrelevant for the Tribunal to assess the applicant’s claimed Christian religion – whether it was unfair of the Tribunal to doubt the applicant’s credibility – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Federal Circuit Court Rules 2001 (Cth), r.12.02 |
| Cases cited: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 MZYFS v Minister for Immigration and Citizenship [2010] FCA 1325 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413; (2016) 253 FLR 496 |
| Applicant: | BFK18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 666 of 2018 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 4 August 2020 |
| Date of Last Submission: | 4 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2020 |
REPRESENTATION
| Applicant: | In person (by telephone) |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
| Legal Representative for the Respondents: | Mr N. McArdle (by telephone) |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 13 March 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 666 of 2018
| BFK18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 13 March 2018 pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 March 2018 which affirmed the decision of the Minister’s delegate to refuse a protection visa (“the visa”) to the applicant.
The evidence before the Court is contained in a bundle of relevant documents, filed and tendered by the Minister (“Court Book” – “CB”, “RE 1”).
Background
The applicant’s migration history is set out in the delegate’s decision (at [3], CB 66):
“The applicant entered Australia on 16 August 2009, holding a Student (subclass TU570) visa, which was valid until 18 August 2010.
On 20 January 2010 the applicants Student visa was cancelled. The applicant remained in Australia without a valid visa, without making any apparent attempt to regularise his visa status.
On 27 April 2014 the applicant lodged a Partner (UK 820/BS 801) visa application, and on 28 April 2014 he was granted an associated Bridging (WC-030) visa.
On 9 October 2014 the applicant withdrew his Partner visa application.
On 30 October 2014 the applicant lodged an application for a Protection (XA-866) visa, and on 4 November 2014 he was a granted an associated Bridging (WC-030) visa.”
[Error in the Original.]
There is nothing in the evidence to indicate that the applicant was assisted by a registered migration agent in the making of his application. The applicant indicated in the application form that he did not receive any assistance in completing the application form (item 17 at CB 11).
The applicant’s claims to protection were set out in a written statement which accompanied his application for the visa (CB 30 – CB 33). He claimed to fear harm because of his Christian religion.
He stated that his family believed in Jesus and the belief was strengthened when his father recovered from injuries suffered in an accident (“… just like a miracle…” – CB 30.3).
The applicant’s practice of Christianity was at family gatherings which he said were considered illegal by the Chinese authorities. On 13 July 2007 he and his mother were attending such a gathering when the police entered and took his mother and other older practitioners to the local police station.
He and other younger members of the gathering were questioned by police. He was shocked by their aggression. He was “dragged” and “shoved” into a chair and questioned. He was warned that if he was found at an illegal gathering again he would be arrested.
His mother was interrogated for over 20 hours. She was released when his father paid a fine. The police subsequently increased their surveillance of his family.
The applicant’s family sent him to Australia to study so as to protect him. In Australia he attended a local “Chinese Church”. On 10 December 2010 his father told him that his mother had been arrested for organising a gathering. She was detained for three months and tortured. She was fined. She did not give up her religion. The police continued to visit his mother who was required to report to the local police station.
The Delegate
The applicant attended an interview with the delegate on 14 July 2015 (CB 68.9).
The delegate had concerns with the applicant’s claims (at CB 70.6):
“Having interviewed the applicant and considered his written claims, I consider that there are a number of matters which raise doubts as to the applicants claims of attending illegal religious gatherings in China, he and his family encountering problems with the Chinese authorities because of their religious activities, and his claimed fear of being arrested if he returns to China.”
[Error in the Original.]
These concerns were subsequently explained with reference to the applicant’s “unconvincing” account of his religious activities in China and his “vague responses” (CB 70.7 – CB 70.8). The delegate found that:
1“…The applicants account at interview in relation to why he became interested and involved in Christianity differs substantially from his written statement…” (at CB 71.1);
2“Furthermore the applicant provided differing information at interview in relation to his religious activities in China, initially indicating that he attended (illegal) religious gatherings before he started going to a (government approved) church, then subsequently claiming that he attended a church in 2005 and then started going to gatherings in 2006.” (at CB 71.2);
3“…the applicant has provided inconsistent, unconvincing and delayed claims in relation to his past problems in China. In his written statement the applicant claims that during a gathering in July 2007 he was interrogated by the police and his mother was detained for more than 20 years. However when asked about this incident at interview, the applicants responses were unconvincing and inconsistent with his written statements.” (at CB 71.3);
4“If the applicant had genuinely been harassed by the police, with repeated visits to his home and repeated questioning, I consider that he would likely have included these claims in his written statement, rather than raising them for the first time at an interview held more than 8 months later.” (at CB 71.6);
5“…the applicant's departure from China in 2009 suggests that he is not of adverse interest to the Chinese authorities. Reports indicate that the Chinese government checks the passports of citizens attempting to leave the country in order to ensure that they are suitable for foreign travel, and airport security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities1.” [Footnote Omitted] (at CB 71.7);
6“Finally, in considering whether the applicant genuinely fears being seriously harmed in China because of his religious activities, I have noted the applicants delay in seeking protection.” (at CB 72.2).
The delegate refused the application for the visa on 11 September 2015 (CB 61 – CB 79).
The Tribunal
The applicant applied for review to the Tribunal on 23 September 2015 (CB 80 – CB 81). There is nothing in the evidence before the Court to indicate that the applicant was assisted by a migration agent, or that he had subsequently appointed an agent to represent him. He appeared before the Tribunal at the hearing on 9 October 2017 (CB 94 – CB 95).
The Minister’s written submissions filed in these proceedings provide a detailed summary of the Tribunal’s decision. I am satisfied on the evidence that this is a fair summary (at [9] – [14]):
“9. The Tribunal was satisfied that the applicant was a Christian and that the applicant had demonstrated an understanding of Christianity and continued with religious observance in Australia (CB 104, [27]). However, it was not satisfied the applicant was a devoted Christian who practised his faith “without exemption” and found that he was flexible in his religious practice and not a dogmatic Christian (CB 104, [27]). The Tribunal acknowledged that it was not its job to assess whether someone was a “good Christian” but observed that the religious practices of an applicant were relevant to their future conduct should the applicant be returned to their country of nationality (CB 104, [28]).
10. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution (CB 104, [29]). The Tribunal recorded that the applicant was not involved in organising the house gatherings and was satisfied that he had not previously been detained. It found that his only direct contact with the police was when he was shoved into a chair before his mother was arrested. It found there was no suggestion that the applicant would become more religiously active in China than he was in Australia (CB 104, [29]).
11. The Tribunal found that the applicant’s delay in applying for protection was integral to its finding that he did not have a well-founded fear of persecution. It did not accept the applicant’s claimed reasons for his delay, being that he did not know about protection and had no one to help him, and found that he would have made enquiries with the Department if he had genuine fears about returning to China (CB 105, [31]). The Tribunal considered it likely, based on the fact that the applicant was working, that his reasons for remaining in Australia were economic reasons and continued to be so (CB 105, [32]).
12. The Tribunal had concerns about the applicant’s truthfulness and found his lack of candour in relation to his earlier partner visa application to be particularly troubling and suspected that his failure to disclose it was to avoid questioning that might undermine his claims for protection (CB 105, [34]). It found that the inconsistent accounts given by the applicant in relation to the time of the Mandarin language service at his Church indicated that he wished to convey genuineness that was not a reality, leading the Tribunal to have concerns about the truth of what the applicant conveyed (CB 105, [35]).
13. Taking the applicant’s claims at their highest, the Tribunal was not satisfied that the applicant was of any interest to the Chinese authorities (CB 105, [36]). The Tribunal found that the there was no evidence that the applicant was being sought out by the police or that he played a prominent role in a church in either China or Australia. The Tribunal recorded that the applicant was able to leave China without incident and found that even if the authorities were aware of his Church activities in Australia, it was not satisfied the applicant would face a real chance of serious harm if he were to return to China (CB 106, [36]).
14 . The Tribunal was therefore not satisfied that the applicant met s 36(2)(a) of the Act (CB 106, [37]). The Tribunal relied on its anterior findings to conclude that the applicant also did not meet s 36(2)(aa) of the Act (CB 106, [38]-[39]).”
[Error in the Original.]
The Application to the Court
The grounds of the application to the Court are as follows:
“1. It is not the job of the Tribunal to assess whether someone is a good Christian.
2. AAT doubted my credibility, which is unfair to me.”
Before The Court
On 5 April 2018 a Registrar of the Court made orders, by consent, which, amongst other matters, gave the applicant the opportunity to file an amended application and any evidence by way of affidavit. Nothing further has been filed by the applicant.
At the hearing the applicant appeared by telephone (due to COVID-19 restrictions). He was assisted by an interpreter in the Mandarin language.
The applicant confirmed that he had not filed any further documents in this proceeding after making his application to the Court.
When asked to make submissions on the grounds of the application, or any complaints about the Tribunal decision, the applicant responded by saying that his migration agent told him that there “must” be a lawyer representing him.
It appeared that either the applicant had some expectation that the Court would provide a lawyer to represent him at the hearing, or that a migration agent was to have arranged this. The applicant was not clear on this.
The applicant made no application for an adjournment of the hearing in the absence of a lawyer. Nor, importantly, given the difficulties faced by unrepresented applicants, did he even indicate that there was some prospect of his obtaining a lawyer to represent him in the near future. Nor did he make any submission (let alone provide evidence) as to what steps he had taken to secure the services of a lawyer after a migration agent told him he “must” have one.
Further, as set out above, there is no evidence that the applicant had engaged any migration agent to assist him with the application for the visa, or review before the Tribunal. Even if he spoke to an agent about assisting him in securing legal assistance in the current case, there was no indication from the applicant that there was any realistic prospect of securing such assistance in the near future.
In any event, there is no right to legal representation in matters of this type (Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20, SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 and Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50).
Finally, if it was the case that the applicant had some expectation that the Court would provide a lawyer for him then I could not see that this was an appropriate case for consideration of a referral pursuant to Part 12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), see in particular r.12.02 of the Rules).
Consideration
Although not entirely clear, the assertion of jurisdictional error in ground one may be understood as being that it was beyond the exercise of its jurisdiction, or irrelevant, for the Tribunal to assess the applicant’s Christianity, or, that it was not open to the Tribunal to not accept that he was a “good” Christian who feared harm for this reason if he were to return to China. Despite opportunity to do so, the applicant provided no explanation of this ground.
The applicant claimed to fear harm in China because of his Christian religion and practice. The statutory task set for the Tribunal in this circumstance was to consider whether the applicant would suffer serious or significant harm for this reason if he were to return to China.
There is no legal error in the circumstances of this case, in the Tribunal considering the applicant’s claims as to past events in China relevant to the applicant’s claimed practice of Christianity. Past events can inform the likelihood of future harm (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).
It was therefore reasonably open to the Tribunal, if not necessary given its statutory task, to explore with the applicant his knowledge and understanding of the religion which he professed to hold, and to have practiced, and which was the basis for his claimed fear on return.
The applicant would have been on notice as a result of the delegate’s decision that the credibility of his claims to have practiced Christianity in China, and his claimed Christian beliefs, were at issue. The assertion in the ground appears to not understand that as he claimed to fear harm in China because of his Christian beliefs and practice, the Tribunal needed to be satisfied (as did the delegate previously) as to the veracity or efficacy of what he was claiming.
In relation to the applicant’s claims, the evidence indicates, as the Minister submits, that the Tribunal conducted a “legitimate exploration” of the applicant’s claimed religion (Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [38] (“SZLSP”), see also MZYFS v Minister for Immigration and Citizenship [2010] FCA 1325 per Kenny J).
Although the Tribunal had concerns about the “truthfulness of the applicant” ([33] at CB 105), on a fair reading, the Tribunal considered the applicant’s religious claims “at their highest” ([36] at CB 105).
That is, for the purposes of its consideration, the Tribunal accepted that the applicant engaged in some religious activities, including in Australia, but found that he was not of interest to the Chinese authorities, nor would he attract adverse attention if he returned (see [36] at CB 105 – CB 106). This was reasonably open to the Tribunal on what was before it and for the cogent reasons it gave.
I agree with the Minister that in affirming the delegate’s decision the Tribunal’s reasoning relied to a great extent on other factors rather than the evaluation of the applicant’s religious knowledge. That is, inconsistencies in his evidence, his unexplained delay in applying for protection, and his “lack of candour” as to why he had not told the Tribunal that he had applied for a partner visa when specifically asked if he had applied for any other visa apart from the protection visa (see [27] – [28] at CB 104, [31] – [32] and [34] at CB 105).
These findings were also all reasonably open to the Tribunal on what was before it. It gave cogent reasons probative of the material before it.
I did consider whether in assessing the credibility of the applicant’s claims, the Tribunal’s concern with the inconsistency in the applicant’s evidence as to whether he attended church on Sundays in Australia at 8am or 9am was of such “trivial” character as to be inconsistent with the proper approach to assessing credibility (see [35] at CB 105 – see SZLSP at [37] – [39] per Kenny J).
However, on a fair reading of its decision, the Tribunal proceeded on the basis that the applicant did attend church in Australia (at whatever time), but found that there was no evidence that the authorities in China would be aware of this ([36] at CB 106). This finding was also reasonably open to the Tribunal on what was before it, and for the reasons it gave.
Finally, the single sentence of ground one is an unattributed, but direct quote, of what the Tribunal set out at the beginning of [28] (at CB 104) of its decision record. Before the Court the applicant was not able to explain what he meant by quoting the Tribunal’s decision record in this way. In all, and on balance, ground one does not reveal jurisdictional error in the Tribunal decision.
Ground two asserts that it was unfair of the Tribunal to doubt the applicant’s credibility. Before the Court the applicant did not explain this complaint.
As set out above, the Tribunal did express concerns about the applicant’s truthfulness. On a fair reading, the Tribunal’s findings that informed its decision to affirm the delegate’s decision were all reasonably open for the reasons the Tribunal gave. I agree with the Minister that the Tribunal’s findings were logically probative to the issue of credibility (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] and AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [22] – [28] and [40] – [41]).
I note again that what the Tribunal set out at [35] (CB 105) was ultimately not material to its final conclusion, which was based cumulatively on a number of other factors. The matter of the time of the applicant’s attendance at church in Australia was, given that the Tribunal ultimately accepted that he did attend church in Australia, not material to the Tribunal’s decision (Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34). Ground two is not made out.
The contention that the Tribunal’s adverse credibility finding was “unfair” to the applicant, in the circumstances, invites the Court to undertake impermissible merits review. The Tribunal did consider the applicant’s claims. Its findings, including those on the credibility of the claims, as set out above, were all reasonably open on what was before it. The Court cannot intervene to substitute its own findings for those of the Tribunal. In all, ground two does not reveal jurisdictional error in the Tribunal’s decision.
Conclusion
The grounds of the application to the Court do not reveal jurisdictional error in the Tribunal’s decision, nor can I otherwise see such error. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 10 August 2020
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