BHQ17 v Minister for Immigration

[2019] FCCA 122

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHQ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 122

Catchwords:
MIGRATION – Application for judicial review – citizen of China claims to fear religious persecution – AAT refusal to grant refugee visa – invalid s. 438 certificate.

Legislation:

Migration Act 1958 (Cth), ss.357A, 375A, 422B, 438

Cases cited:

Minister for Immigration & Border Protection v Singh (2016) FCAFC 138

Minister for Immigration & Border Protection v BJN16 [2017] FCAFC 197

MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1

Minister for Immigration & Border Protection v CLY15 (2018) FCA 2013

Stead v State Government Insurance Commission (1986) 161 CLR 141

Applicant: BHQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 9 of 2017

Judgment of: Judge Young

Hearing date: 23 October 2018

Date of Last Submission: 23 October 2018

Delivered at: Darwin

Delivered on: 22 January 2019

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Liveris of Counsel

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 9 of 2017

BHQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the AAT affirming a decision of the Minister’s delegate to refuse the applicant a refugee visa. 

2. The grounds of review do not describe a legally recognisable ground of jurisdictional error.  They take issue with the Tribunal’s factual findings on credibility and other matters.  The following paragraph taken from the application (although in the “Final orders sought …” section of the application) is representative of the applicant’s complaints about the decision:

   I could not accept the decision made by AAT as it is unfair and unpersuasive.  I don’t think my statement has been thoroughly considered especially my commitment in Local Church faith and the risk for my church practice undergrounded in China.  I don’t think my explanation given in the hearing has been well understood and taken into a good account.  I dint think the real religious situation in China especially the oppression and repression policy imposed by local government authority against those house church that defies the patriotic religious domination is been substantially reviewed and fairly weighted (unchanged from original).

3. The applicant was not legally represented at the hearing in this court.  He was assisted by an interpreter.

4. When the matter came on for hearing counsel for the Minister advised the court that a certificate under section 438 of the Migration Act (“the Act”) in respect of certain documents had been given to the Tribunal before that hearing. The certificate was annexed to an affidavit filed by the second respondent. The documents were exhibited to the affidavit and were filed in a sealed envelope in conformity with the recommendation of the Full Court in Minister for Immigration and Border Protection v Singh (2016) FCAFC 183 at [67]. The affidavit said that the certificate and the documents were provided to the Tribunal. There is no indication in the Tribunal’s reasons for decision that the certificate or the documents were revealed to the applicant and the affidavit is silent about the matter. Nevertheless, the hearing proceeded on the basis that the certificate and the documents were not disclosed to the applicant and I will adopt that assumption.

5. The Minister submitted that, given the mundane nature of the documents which were the subject of the certificate, the applicant had not lost the result of a successful outcome by reason of the non-disclosure.  Relying on the authority of Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 the Minister invited the court to inspect the documents to satisfy itself of that.

Protection claims

1. The applicant is a Chinese citizen from Shandong province.  He was born in 1984 and is now 34 years old.  He and his brother arrived in Australia on a tourist visa from East Timor in June 2013.  He claimed that he and his brother were sailing enthusiasts.  He said they initially travelled from China to Malaysia and bought a second hand sailing boat on behalf of a friend who intended to sail internationally.  He said he and his brother trialled the vessel by sailing it to Thailand and, later, East Timor.  He said that in East Timor the vessel needed repairs but it could not be fixed there so he and his brother flew to Darwin.  He said that after they arrived in Darwin they learned that their parents had been detained by police in China as a result of Christian activity and proselytization.  He said he and his brother were then too scared to return to China for fear they would be detained for the same reason.

2. The applicant was assisted by a migration agent in his application for a protection visa. In a translation (from Mandarin) of a statement attached to his protection visa application in 2013 the applicant said he, his younger brother and his parents are Christians.  He said they are members of the “Christian Family church”.  Elsewhere in the statement he referred to the church is being called the “Local Church” (the country information referred to by the Tribunal dealt with the various issues about nomenclature which are not presently relevant).

3. He said he was baptised when he was eight years old.  He said his family contributed part of its business income to support church “construction” and preaching.  He said that both his parents were arrested for joining the church before his younger brother was born (dated to 1989 by the Tribunal).  He said that they were “sent to labour camp” for organising church activities when he was in his second year at high school (dated to 1998 based on the education history provided by the applicant).  In addition he said “our church was sealed to close down by the government” (sic) and the applicant and his brother were seriously beaten by police (the date of this is unclear).  

4. The applicant said that in 2010 he was in charge of “road transportation” for the family business.  He said he was using a truck to transport Recovery Bibles (according to country information, a Bible specially annotated by the founder of the Local Church) to other places.  He was stopped by police and the Bibles were found.  He said he was jailed for two days and physically abused and tortured.  He was released after paying a fine.

5. The applicant said that in about Easter 2012 he and his brother were instructed to transport 500 copies of the Recovery Bible to neighbouring Hebei and Henan provinces.  The applicant said it was the police investigation of this that led to his parents and a church Elder being “subpoenaed” by police (in a subsequent interview the applicant appears to have clarified that he meant they were detained).

6. The applicant said that once he and his brother arrived in Darwin they “bumped into” a Chinese overseas student by coincidence who told them that there were many Chinese lawyers and churches in Sydney.  The applicant and his brother travelled to Sydney and joined a Local Church there.

7. The applicant was interviewed by the Minister’s delegate in June 2015.  The delegate noted that the applicant had no documentary evidence to support his claims, such as police or hospital records.  The applicant also claimed that his parents were arrested in 2007 for joining the Local Church.  He said his father was sentenced to a “transformation camp” and was detained for a year.  He said his mother was released after two days.  The delegate considered the applicant’s responses about this claim were vague and lacking in specific details. 

8. It is also to be noted that the applicant’s written statement claimed both his parents were sent to a labour camp when he was in the second year of high school (1998) and made no claim in respect to 2007. 

9. The delegate also referred to what she described as a “new claim” that the applicant and his brother had been beaten in 2008 by security guards who wanted to close the church down.  The applicant said that he and his brother were hospitalised as a result.  The delegate suggested that this claim had not been included in the applicant’s written statement.  Whether the delegate is correct is unclear.  The applicant’s written statement referred to an incident when the applicant and his brother were seriously beaten by “police” who wished to close the church down although no date was given for that incident.

10. The delegate considered other aspects of the applicant’s claims in reaching an adverse conclusion about the applicant’s credibility but it is not necessary to refer to those here.

11. The Tribunal also reached an adverse conclusion about the credibility of the applicant and his claims.  The Tribunal did not accept the applicant’s account about him and his brother travelling to Malaysia, the subsequent journey to East Timor and then Darwin and there, coincidentally, learning that their parents had been arrested and detained. However, it observed that this issue was not central to the Tribunal’s finding that the applicant’s claims for protection lacked credibility.

12. The Tribunal’s adverse credit assessment focused on two issues: first, the applicant’s narrative of his and his parents’ alleged persecution in China and, secondly, his description of his religious experience and practice.

13. The Tribunal asked the applicant to clarify his claims about his parents’ arrest and/or detention.  The Tribunal asked if there had been three separate occasions when his parents had been arrested or detained: 1989, 1998 and 2007.  The applicant said that in 1998 his father had been sent to a labour camp but his mother had not.  He said he made a mistake about this in his written statement when he said both had been sent to a labour camp.  The Tribunal asked the applicant if there had been three separate occasions when his father and mother were arrested and his father was sent to a labour camp.  The applicant said there had been three occasions: in 1989, 1998 and in 2008, not 2007.  The applicant said that the family had paid a bribe to have his father released from detention in 2008 and the father had subsequently set up a business.

14. The Tribunal noted the applicant was unable to provide documentary evidence about these arrests and detentions.  The raising of new claims or, at least, elaboration of claims in the applicant’s written statement also appears to have led the Tribunal to doubt the applicant’s claims.

15. During the Tribunal hearing the applicant claimed that his parents had been detained for 18 months after being arrested in 2013. He said they have been released but said they continued to be monitored by the authorities. 

16. The Tribunal doubted the applicant’s claims about his parents being “subpoenaed” or, as appears was meant, arrested and detained in 2013.  In his written statement the applicant asserted that this was related to a police investigation of the delivery of the 500 copies of the Recovery Bible to other provinces in 2012. On being questioned about the apparent implausibility of his account the applicant gave a different explanation and said that his parents’ arrest in 2013 had nothing to do with the police investigation about the Bibles but occurred simply because they were at a Local Church gathering when the police arrived.

17. The Tribunal, like the delegate, also considered that the applicant had raised a new claim about him and his brother being beaten by security guards in 2008 during an attempt to close down a church (clarified as a reference to the family home).  As noted above, whether this was an entirely new claim may be doubted because the applicant’s written statement refers to having been beaten by police during an attempt to have “our church sealed” or closed down in an unspecified year.  At the hearing before the Tribunal the applicant said the “police” had been involved in this incident and that during the fight he and his brother had been beaten up and his brother “badly hurt by a knife”.  The applicant said both he and his brother went to hospital.  The claim that his brother had been badly hurt by a knife and both had required hospitalisation would appear to be, if not a new claim, at least an elaboration of an existing claim.  The applicant did not have any records in relation to this claimed incident or hospitalisation.

18. In relation to the applicant’s claimed religious experience and practice the Tribunal was similarly not satisfied about the applicant’s credibility.  It noted that the suggestion in the applicant’s written statement of the existence of church “construction” was incorrect as the evidence of the applicant was that church meetings were held in private homes.  The Tribunal noted that the applicant was unable to identify a favourite song from the church song book.  Given that country information indicated that church singing was a central part of Local Church worship the Tribunal expressed scepticism that a person who had been a member of the church since the age of eight, as the applicant claimed, would have such little knowledge.  The Tribunal noted that the applicant had been baptised in a Local Church in Sydney but observed that no baptism certificate was produced and, according to country information, multiple baptisms were encouraged in the Local Church.  It also noted that the applicant had not attended any church while living in Darwin but had apparently watched religious material on the Internet. 

19. The Tribunal said of the applicant that there was a:

    … lack of substance in his answers to questions about the structure of the services he said he attended in China.  He could not remember any of the songs of praise sung; he was unable to discuss evangelising in any meaningful way; and he made no mention of the pray reading practice that, according to the Local Church, is one of the key practices in the Church.

20. The Tribunal annexed detailed country information about the Local Church in China prepared by DFAT, the US Department of State and other bodies.  This material indicated that international church and other groups monitored the conduct of the authorities in China towards Christian churches closely and there was no known indication of persecution in Shandong province of the kind described by the applicant at the relevant times.

21. The Tribunal found the applicant was not involved in the Local Church in China and his claims were fabricated.  It rejected his claims for refugee protection and complementary protection.

22. In view of the various concerning elements of the applicant’s claims, including implausibility, lack of knowledge of matters that he might be expected to know if his claims were truthful, elaboration of significant claims and lack of independent corroborative evidence, the conclusions of the Tribunal were open to it.  I do not discern any jurisdictional error in the Tribunal’s reasons.

Section 438 certificate

1. The Minister effectively conceded that the section 438 certificate was invalid. The certificate certified that disclosure of two folios of the departmental file would be contrary to the public interest because they “contain information relating to an internal working document and business affairs”.  Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 held that a certificate given to justify non-disclosure because documents contained “information relating to internal working documents” was invalid on its face because it did not describe a necessary or sufficient basis for public interest immunity under common law or statute.  McKerracher J in Minister for Immigration and Border Protection v CLY15 (2018) FCA 2013 at [16] held in considering a certificate that referred to “information relating to internal working documents and business affairs” that the additional phrase “business affairs” made no difference to Beach J’s conclusion.

2. In MZAFZ Beach J held that “[i]n the absence of evidence to the contrary” he was entitled to assume that the Tribunal had acted “in some unspecified way” on the certificate and had, as a result, not followed the prescribed legal process.  This gave rise to jurisdictional error: see MZAFZ at [40] and [44] and BJN16 at [33].

3. In MZAFZ the Minister sought to persuade Beach J that the certificate had been properly issued and there was nothing advantageous or disadvantageous to the applicant in the material not disclosed.  His Honour refused to examine the documents because, among other reasons, he said he was entitled to proceed on the basis that the documents covered by the certificate were relevant to the application.

4. In Singh the Full Court considered sections 375A and 357A of the Act which are substantially similar to sections 438 and 422B respectively. The Court was not asked to examine the documents that were the subject of the certificate but made the observation that “Such a submission would have required, for its assessment, that the Court examined the material itself”.

5. These matters were considered by the Full Court again in BJN16. The Court said at [63]:

   It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, even under s.438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.

6. The Court (at [66]) gave as an example of when the documents would be relevant the case where documents contained material which negatived the suggestion that the non-disclosure deprived the applicant of the possibility of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at p. 147.

7. The Court said that in such case a reviewing court might withhold relief on discretionary grounds. If a party wished to rely on material to establish that relief should be refused that party should not be prevented from tendering material which he or she claims supports such a submission: at [67], [68].

8. The Minister made such a submission in this case and I examined the documents which were the subject of the certificate.  There were two documents.  The first was a departmental document entitled “Application and Identification Test Details”.  This was a standard form document that confirmed that the applicant had provided identification by photograph in September 2013.  The second was entitled “Protection Visa Application Validity Check”.  Again this was a standard form document that consisted of no more than a checklist filled out by a departmental officer on receipt of the applicant’s protection visa application.  It confirmed that a valid residential address, passport photographs, signature and protection claims had been provided by the applicant.  The reverse side of the second document was another standard form entitled “Associated Bridging Visa”.  This merely confirmed that a bridging visa had been granted to the applicant.

9. Each of these documents is completely mundane.  None of the matters addressed in the documents were in issue in any way in the application.  They were not relevant to the Tribunal’s decision.  I am satisfied that their non-disclosure could not and did not deprive the applicant of the possibility of a successful outcome.

10. I am satisfied that the applicant has not been denied procedural fairness as a result of the Tribunal’s failure to disclose the invalid certificate to the applicant or as a result of the Tribunal’s failure to disclose to the applicant the documents which were the subject of the certificate. 

1. The application will be dismissed with costs

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  22 January 2019