BHT18 v Minister for Home Affairs
[2018] FCCA 2056
•27 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHT18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2056 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 476 |
| Cases cited: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 |
| First Applicant: | BHT18 |
| Second Applicant: | BHU18 |
| Third Applicant: | BHV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 713 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2018 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms C Saunders of DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 713 of 2018
| BHT18 |
First Applicant
| BHU18 |
Second Applicant
| BHV18 |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 February 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are three applicants, who are a father and two of his three children.
Background facts relating to his claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 20 July 2018.
The first named applicant (applicant) is a male citizen of China and lodged his protection (Class XA) visa on 22 April 2014. In this application, the applicant nominated dependant applicant 1 (second applicant), and dependant applicant 2 (third applicant), as members of his family unit.[1]
[1] Court Book (CB) 34, 87.
The applicant nominated another person as his de facto wife who was not included in this application as she had her own protection visa claims. Also, not included in this application was the applicant’s eldest son, who was included as a member of the family unit in the application of his wife.[2]
[2] CB 36.
The applicant’s claims for protection can be summarised as follows:[3]
a)he joined a local house church with some friends when he was in China. His house church was regularly searched by the local government and public security bureau. Also, his family was against him joining the church. His relatives therefore avoided him and treated him like a psychopath, saying he had joined a “heresy” and brought shame to the family. His mother saw him unhappy every day and tried her best to send him abroad, hoping he would change his reliance on Christianity;
b)he came to Australia in April 2007 on a student visa. After coming here he became more firm in his faith as he could freely choose his belief and join a church here. Not long after he came to Australia, he met his wife at a church in Auburn studying the bible together and attending activities. Because his wife was also Christian and was baptised, their marriage was not blessed by their families. His family stopped contacting him because of this. If they return to China they will be searched and questioned because of their beliefs. He cannot practice Christianity in China; and
c)they have violated family planning policy in China because they have three children. He will be deprived of his beliefs and his freedom will be lost. The “brothers and sisters” of his house church in the past were arrested by the public security bureau. His wife and children are also Christian. He wanted to stay in Australia so that he can continue with his stable life and be allowed to continue with his beliefs.
[3] CB 62.
On 26 June 2016, the applicant attended an interview before the Minister’s Department in which he made the following additional claims:
a)he was detained with others from his house church in China in 2006 and held for three months. He was repeatedly pressured to renounce his faith and not attend church and beaten because he refused. His parents eventually paid RMB 100,000 to have him released; and
b)his wife was not baptised in Australia because she had already been baptised in China, and their church informed them that you could only be baptised once.
On 23 October 2015, the delegate refused grant of the protection visa, finding the applicant to not be a credible witness.[4]
[4] CB 142.
On 13 November 2015, the applicant applied to the Tribunal for review of the delegate’s decision.[5]
[5] CB 157.
On 16 November 2017, the applicant appeared before the Tribunal to give evidence and present arguments.[6]
[6] CB 257.
On 21 December 2017, following the hearing, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act).[7] The Tribunal sought the applicant’s comment on particulars of information relating to his wife and his own visa application history; information he provided at the Department interview; and information arising from his wife’s protection visa application process. The Tribunal explained the relevance of this information and invited his comments or response.
[7] CB 266.
On 18 January 2018, the applicant provided a response to the Tribunal’s invitation.[8]
[8] CB 276.
On 21 February 2018, the Tribunal affirmed the decision under review.
The decision of the Tribunal
The Tribunal found the applicant had not provided truthful evidence about his past and current circumstances and his faith. It rejected his claims to have practised Christianity in China, and to have suffered harm on this basis. It did not accept that he was a Christian and did not accept that he had been attending any church in Australia. Therefore, the Tribunal did not accept that he would attend church or practice Christianity in China in the future. The Tribunal accepted the applicant was married and has three children from this relationship.[9]
[9] [43].
The Tribunal rejected the applicant’s claims that he attended any kind of church service in China, house gathering or otherwise, prior to coming to Australia. It did not accept that he was arrested or detained by local authorities or public security bureau on one or more occasions and it did not accept that his parents paid a fine or a bribe for him to be released. The Tribunal rejected the applicant’s claims to have practised Christianity in any form, or at any place, in China prior to coming to Australia.[10]
[10] [44]-[45].
The applicant was questioned about his claims of Christian practice in Australia. The Tribunal found the applicant’s description of the service and his faith to be vague, generic and limited and the Tribunal considered his evidence did not reflect what would reasonably be expected of a genuine Christian who has been attending regular church services for the claimed period of time.[11] Taking this into account, and having considered the applicant’s responses to the s.424A invitation, the Tribunal was not satisfied that the applicant had been regularly attending church services in Australia over the past decade and was not satisfied that he was genuinely practising his Christian faith here. The Tribunal rejected the applicant’s claims to be a genuine Christian in China or Australia and found that he would not therefore seek to practice Christianity in any form were he to return to China.[12]
[11] [46].
[12] [47]-[48].
The Tribunal also rejected the applicant’s claims of being arrested and detained by authorities for this reason in China. Having rejected these claims, the Tribunal was not satisfied the applicant would face harm upon return to China.[13]
[13] [49].
The Tribunal considered country information about Family Planning policies[14] and accepted that, despite changes to the family planning policies implementing a two child policy from 1 January 2016, the applicant may be liable to pay social compensation fees in respect of one or possibly both of his children born in excess of the previous one child policy.[15]
[14] [50]-[57].
[15] [58].
The Tribunal noted that the applicant claimed he was not working and had not worked for a long time because of a lack of legal permission to work. The Tribunal did not accept as credible his claims that he had not been working. The Tribunal considered it inconsistent with evidence his wife gave in her application process that he was working to support the family and that is why he was not attending church, which the applicant also acknowledged in his response to the s.424A letter. Although the Tribunal did not accept that the applicant had not been working in Australia to support his family, it accepted that with three children to support and taking into consideration the cost of living in Australia and his lack of formal qualifications, it was unlikely he would have been able to save a significant amount of money over the past decade to be able to take back to China upon return. However, given he had been able to live independently and survive in Australia for the past decade, and in light of his relatively young age, the Tribunal considered that the applicant had capacity to earn income upon return to China.[16]
[16] [60].
While the Tribunal accepted that the applicant may face financial hardship to pay the social compensation fees in respect of his children, it did not accept that he would be unable to pay the fees, even if by instalments over time.[17] The Tribunal also found that imposition of the social compensation fee upon the applicant was as a result of a law of general application.[18]
[17] [60].
[18] [62].
The Tribunal found that, regardless of the ability and capacity of the applicant to pay any social compensation fee incurred in respect of the second and third named applicants, they would be able to obtain household registration independently of payment of the social compensation fee.[19]
[19] [63].
Turning to the complementary protection criteria, given its rejection of the applicant’s Christianity claims and finding that the second and third applicant would be able to be registered, the Tribunal found there was not a real risk that the applicants would suffer significant harm.[20] The Tribunal additionally found that the payment of the social compensation fee did not amount to significant harm.[21]
[20] [68].
[21] [61].
The present proceedings
These proceedings began with a show cause application filed on 19 March 2018. The applicant continues to rely upon that application. There are five grounds in it:
1.The first respondent has questioned the applicant's credibility with no substantial evidences to support.
2.The first and second respondents have wrongly assessed the genuineness of Christianity of the applicant, which is not fair to the applicant.
3.The first and Second respondents have not considered the serious consequent to the applicants of returning to China.
4.The first respondent has bias existed against to the applicant. She has jumped to the conclusion of incredibility of the applicant
5.The first and second respondent should assess the application based on the facts not their assumption.
(errors in original)
The application is supported by an affidavit filed with it, which I received subject to relevance, noting that annexed to the affidavit is the decision of the delegate, as well as the decision of the Tribunal.
I also have before me as evidence the court book lodged on 2 May 2018 and filed on 7 May. Only the Minister filed written submissions in advance of today’s hearing.
I invited oral submissions from the applicant this morning. He is concerned about several aspects of the Tribunal’s decision. He was also concerned that the Tribunal had requested from him evidence of his arrest in China in the form of a warrant and evidence from his church in Australia of his attendance at church.
It does not appear from the Tribunal’s decision that the presence or absence of an arrest warrant figured in its reasoning. It may have been something referred to at the Tribunal hearing. The Tribunal noted at [28] of its reasons[22] that the applicant had not provided any evidence or brought any witnesses to support his church attendance claims in Australia. The Tribunal was entitled to draw attention to the absence of such evidence.
[22] CB 286.
The applicant’s submissions otherwise went to the merits of the Tribunal decision, which are beyond the scope of this proceeding.
I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
Ground 1 takes issue with the delegate’s decision. However, this Court does not have jurisdiction to review a primary decision pursuant to s.476 of the Migration Act. If this is to be taken as an allegation against the Tribunal, the Tribunal’s findings were open to it on the evidence before it and it was not obliged to conduct an inquiry to discover whether the applicants’ case might be better put or supported by other evidence.[23]
[23] Minister for Immigration v SZNVW (2010) 183 FCR 575; (2010) 114 ALD 666; [2010] FCAFC 41, per Keane CJ at [36]-[37].
Ground 2 asserts that that the Tribunal wrongly assessed the genuineness of the applicant’s Christianity. However, there are no particulars provided to identify how this is so. The Tribunal found the applicant had not provided truthful evidence about his past and current circumstances and his faith. As such, it rejected his claims to have practised Christianity in the China, and to have suffered harm on this basis in the past in China. This finding was open to the Tribunal based on the evidence before it and ground 2 is an attempt to cavil with the merits of the Tribunal decision.
Ground 3 asserts that the Tribunal did not consider the risk of harm faced by the applicant if they were to return to China. It is clear that the Tribunal did consider in detail whether the applicants would face any risk of harm. However, the Tribunal was ultimately not satisfied there was a real chance any of the applicants would face serious harm on the basis of their religion, membership of a particular social group, or for any other Convention reason, if they return to China.[24] Additionally, the Tribunal made further findings that the applicants would not face a real risk of significant harm for any of the reasons claimed.[25] This ground is incapable of establishing any jurisdictional error by the Tribunal.
[24] At [66].
[25] At [68].
Ground 4 alleges bias against the delegate and for the same reasons as those at [29], this Court does not have jurisdiction to consider the delegate’s decision. To the extent the applicants allege the Tribunal was biased, such an allegation needs to be sufficiently particularised and supported by evidence.[26] The allegation is advanced on the basis of a disagreement with the Tribunal credibility findings. This is not a sufficient basis to make out an allegation of bias and should be understood as an attempt to cavil with the merits of the Tribunal’s findings.
[26] Minister for Immigration v Jia Legeng (2001) 205 CLR 507.
Ground 5 asserts that the Tribunal based its findings on assumptions rather than facts. Where the Tribunal gave detailed reasons for its decision and in doing so, identified the facts relied on, which included the applicant’s evidence and country information, there is no suggestion that the Tribunal made any assumption and ground 5 is an attempt to cavil with the merits of the Tribunal decision.
In is submissions in reply, the applicant raised a humanitarian issue. The applicant told me that his wife was hospitalised for 80 days between the beginning of May and 20 July 2018. It appears that she suffers from a very rare muscle disease. It also appears that she now has to breathe through a tube, having been given a tracheotomy. The hospitalisation is verified by a NSW Department of Health document which the applicant showed me. The applicant asserted that this wife is now completely unable to work, although that is not entirely consistent with the document he showed me.
It seems to me that this new information raises a number of questions. Those include whether the applicant’s wife would be fit to travel to China, whether medical assistance would be available for her condition in China, and whether the applicant’s wife requires the support of her husband as a carer. The applicant also told me that the cost of his wife’s hospitalisation amounts to $210,000. It is not apparent what will become of that debt. These are matters which could be considered by the Minister for Immigration if he were so minded. They are, however, beyond the scope of this proceeding.
Conclusion
The applicants have failed to demonstrate an arguable case that the decision of the Tribunal is affected by jurisdictional error. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the first applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 30 July 2018
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