BIT16 v Minister for Immigration

[2017] FCCA 1159

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1159

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Applicant seeks impermissible review – where Applicant claims there was no procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425

Cases cited:

Selvadurai v the Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: BIT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1167 of 2016

Judgment of: Judge Hartnett

Hearing date: 1 May 2017

Delivered at: Melbourne

Delivered on: 1 May 2017

REPRESENTATION

The Applicant: In Person

Solicitor for the First Respondent: Ms Koya

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1167 of 2016

BIT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex tempore reasons)

1. Before the Court is an application under the Migration Act 1958 (Cth) (‘the Act’) seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 May 2016. The Tribunal affirmed a decision by a delegate of the First Respondent not to grant to the Applicant a protection (Class XA) visa (‘the protection visa’).

2. The First Respondent seeks dismissal of the application and that costs follow the event as the First Respondent submits that no jurisdictional error attends to the decision of the Tribunal.

3. By orders made by Registrar Buljan on 9 November 2016, the Court ordered, amongst other orders and by consent, that the Applicant file and serve any amended application with proper particulars of the grounds of the application and written submissions prior to the hearing.  The Applicant filed no amended application and no written submissions. 

4. The Applicant’s application, filed on 3 June 2016, relied upon the following grounds:-

   “1)    The decision of the Tribunal;

   (a) is affected by an error of law and

   (b) denied the Applicant procedural fairness.

   2) I am currently in the process of trying to obtain legal assistance subject to my ability and resources.”

5. There is, as can be seen, no particularisation of the grounds of application.  The Applicant was unable, in oral submissions made this day, to point to any denial to him of procedural fairness, nor any error of law. What he did point to was, subsequent to the hearing, a diagnosis of him as having autism spectrum disorder (level 1) “without intellectual impairment”. This diagnosis is as set out in a psychological assessment report dated 9 December 2016, and prepared by Amelia Murdock, clinical psychologist, of Inside Out, Child and Family Psychology.  The psychological assessment report was not before the Tribunal when the application for review of a decision made by a delegate of the Minister to refuse to grant the Applicant a protection visa was before it, nor was the psychological assessment report contained in any post-hearing submissions. The assessment itself postdates, by many months, the handing down of the Tribunal decision.

6. In oral submissions this day, the Applicant wished to re-agitate his claim and essentially seek merits review. He indicated that his diagnosis of autism spectrum disorder came as a surprise to him, this diagnosis having not been made prior to December 2016. The Applicant had requested an assessment for autism spectrum disorder after his five year old son was diagnosed with autism. 

7. The psychological assessment report was not served upon the First Respondent. It did not go to any submission made by the Applicant that he was unable to give evidence before the Tribunal, and the contents of the report did not go to that issue. The Applicant asserted this day that he could not express what he wanted to say “well”. He did however make various submissions as to the local church in China and his membership thereof, in an effort to establish, in a form of merits review, that there is a real chance that he would suffer persecution amounting to serious harm or a real risk that he would face significant harm from the Chinese authorities or the general public because of his participation in local church activities if he returns to China now or in the reasonably foreseeable future. 

8. The psychological assessment report is given no weight in this judicial review proceeding.

Background

1. The Applicant is a male citizen of China, born on 15 June 1982, in Lianshui County, Jiangsu Province, China.  He stated in his protection visa application of 26 July 2013, that he is of Han ethnicity and Christian religion, and that he speaks, reads and writes Mandarin.  He departed China legally and arrived in Australia on 20 April 2001, travelling on a student visa.  The Applicant’s last student visa expired on 15 March 2007, and the Applicant became an unlawful non-citizen until he applied for a protection visa on 26 July 2013 some 6 years later.

2. In summary, the Applicant’s claims for protection are as set out in the First Respondent’s submissions as follows:-

   “(a)   The Applicant was a member of the local family church in China. He claimed to fear persecution, arrest and detention by authorities for practising Christianity in China.

   (b) In 2006, Chinese authorities fined and confiscated their family business stock when business rivals reported the family’s involvement with the local church.  He claimed that the authorities did not have solid evidence in relation to the family’s involvement in the local church and instead accused his parents of not having necessary permits.

   (c) On 30 June 2013, his mother was arrested, detained and assaulted by Chinese authorities while attending a local church gathering.  He provided a “certificate of release from detention” in support of this claim.”

3. A delegate of the Minister refused the visa on 30 September 2014.  The delegate did not accept the Applicant had been a practising Christian in China and Australia, or that the Applicant’s mother had been detained in 2013.  The delegate did not accept that the Applicant would engage in the practice of Christianity if he were to return to China and did not accept that he faced a real chance or real risk of harm for this reason.

4. The Applicant applied to the Refugee Review Tribunal (as it was then) for review of the delegate’s decision on 14 October 2014. 

5. The Applicant appeared before the Tribunal on 24 November 2015 and gave evidence as did a witness on behalf of the Applicant. At the hearing the Applicant provided a letter dated 8 November 2015 from the “Church in Melbourne” and photographs of himself at various Local Church gatherings. On 25 November 2015, the Applicant provided post‑hearing submissions to the Tribunal, attaching a statutory declaration of the Applicant, a Tribunal decision relating to a different application, and country information.  On 19 May 2016, the Tribunal affirmed the decision of the First Respondent’s delegate.

The Tribunal decision

1. The Tribunal accepted that China was the Applicant’s country of nationality for Convention purposes, and was the Applicant’s receiving country for complementary protection purposes. 

2. The Tribunal set out its awareness of the importance of adopting a reasonable approach in the finding of credibility, and noted that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal further noted that it must bear in mind, if it makes an adverse finding in relation to a material claim by the Applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true. The Tribunal noted, however, that it was not required to accept uncritically any or all of the allegations made by an Applicant. 

3. In paragraph 38 of the Tribunal’s Statement of Decisions and Reasons (‘the Decision Record’), the Tribunal noted it was also legitimate to take into account an Applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the Applicant’s claimed fear of persecution (per Heerey J Selvadurai v the Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

4. The Tribunal indicated that it was satisfied that the Applicant attended Local Church gatherings in Melbourne.  The Tribunal noted that at the hearing the Applicant demonstrated a reasonable knowledge and understanding of Local Church activities, practices and beliefs. 

5. In paragraph 41 of the Decision Record, the Tribunal referred to the statutory declaration of 23 July 2013 made by the Applicant, wherein the Applicant claimed that after arriving in Australia in 2001 “he has only visited China three times.  On those three occasions he was only allowed to stay briefly, because his parents were fearful for him as the Chinese authorities had become more vigilant in arresting and detaining anyone suspected to be members of the Local Church”.  However, the Applicant, the Tribunal found, had visited China for periods of eight weeks in 2004, five weeks in 2005, and two weeks in 2006 before becoming an unlawful non-citizen in March 2007, at which point he lost the ability to return to Australia should he depart. 

6. The Tribunal also noted that the Applicant’s parents had visited him in Australia.  The Tribunal did not accept that if the Applicant feared persecution on religious grounds, he would have returned to China in 2004, 2005 and 2006.  The Tribunal did not consider visits to China of eight and five weeks to constitute staying in China “briefly”. The Tribunal also considered that if the Applicant’s parents feared persecution in China on religious grounds, they would have remained in Australia and sought protection at the time they visited the Applicant. Instead, the delegate’s decision record indicates that the Applicant’s mother returned to China after a month in Australia, as she was busy with her business in China. 

7. The Tribunal found that the Applicant’s twelve year delay in making his protection visa application after coming to Australia in April 2001, and over six years, after becoming an unlawful non-citizen in March 2007, was inconsistent with the Applicant’s claimed fear of persecution, even accepting that the Applicant received advice from a migration lawyer that it would be difficult to succeed in a protection visa application. 

8. The Tribunal did not accept the Applicant’s claim that his parent’s business was raided in 2006 because a business rival informed the authorities that they were Local Church practitioners.  Apart from the delay of seven years following this alleged incident before the Applicant applied for protection in July 2013, the Tribunal did not accept the Applicant’s account of this incident, for reasons as set out in paragraph 43 of the Decision Record. 

9. The Tribunal concluded that if the Applicant’s parents did have stock confiscated and were fined in 2006, it was because they did not have the relevant licences and permits to assemble and sell electric fans rather than due to concerns about them being involved in Local Church activities. 

10. The Tribunal did not accept the claim that the Applicant’s mother was detained and held in detention because of involvement in Local Church activities.  It had regard to inconsistencies in the Applicant’s evidence as to when he found out about the incident, and did not accept that aspects of the claim were plausible. Having regard to country information which indicated that document fraud was common in China and that it was relatively easy to produce false documents, the Tribunal gave the certificate of release from detention no weight. The Tribunal had regard to the evidence of the Applicant’s friend given at the hearing. However, it was not persuaded that the evidence demonstrated the veracity of the Applicant’s claim, that his mother had been arrested in 2013 due to Local Church activities. 

11. The Tribunal said at paragraph 48 of the Decision Record, relevantly:-

    “...the Tribunal finds that the Applicant is not a credible witness in relation to his claims that his parents have suffered harm in China as a consequence of their involvement in Local Church activities.  The Tribunal concludes that his parents and family members have never suffered harm in China as a consequence of being Local Church practitioners.”

12. The Tribunal found, in considering the Applicant’s personal circumstances as well as his family’s circumstances, that the Applicant is a practising Local Church member in Australia and will likely attend Local Church gatherings in China should he return.  In paragraph 49 of the Decision Record, the Tribunal said relevantly:-

    “...based on the available evidence, the Tribunal considers that the Applicant has had a low profile in the Local Church in Australia, and that he has not undertaken a leadership role, engaged in any significant or public proselytising role.”

13. While taking into consideration the Applicant’s comments that he would be more exposed now that he has been participating in Local Church activities in an open manner in Australia, the Tribunal also gave weight to the Applicant’s comments that the Local Church gatherings in Australia are very similar to those they held in China.  On this basis, the Tribunal considered that the Applicant would undertake a similar level of activity within the Local Church should he return to China. 

14. The Tribunal considered relevant country information and in particular, the 2015 DFAT Thematic Report on unregistered religious organisations and other groups in the People’s Republic of China.  The Tribunal noted in paragraph 51 of the Decision Record:-

    “The DFAT Thematic Report indicates, however, that credible sources have told DFAT that the government’s efforts to crack down on Christian “cult” organisations are primarily aimed at identifying and punishing the leaders.  Disciples are generally seen as vulnerable victims who have been taken advantage of by a “opportunistic people who are trying to make money”.  DFAT comments that believes in unregistered protestant Christian organisations in China number approximately 70 to 100 million and that “house churches” can be found across China.  DFAT states that gatherings of 30 to 40 people are generally tolerated, although notes that it is aware of cases where gatherings of fewer peoples have attracted negative attention by the authorities.” 

15. The Tribunal found that the Applicant had not undertaken a leadership role or engaged in any significant or public proselytising role within the Local Church and did not accept that the Applicant would be arrested and/or harmed in Jiangsu province in China because of his Local Church activities. 

16. The Tribunal noted that it gave weight to DFAT’s reporting, and, similarly, other country information relied on by it as set out in paragraph 52 of the Decision Record.  The Tribunal did not accept there was a real chance the Applicant would suffer persecution amounting to serious harm or a real risk he would face significant harm from the Chinese authorities or the general public because of his participation in Local Church activities if he returns to China now or in the reasonable foreseeable future. 

17. The Tribunal considered the Applicant’s claims individually and cumulatively, and considered both the refugee criterion in s.36(2)(a) and the alternative complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal was not satisfied the Applicant was a person in respect of whom Australia had protection obligations under ss. 36(2)(a) or 36(2)(aa) of the Act.

Consideration 

1. The Tribunal did not fail to comply with its procedural fairness obligations as set out in Division 4 of Part 7 of the Act. The Applicant appeared at a hearing before the Tribunal in which all aspects of his claims were discussed with him, as required by s.425 of the Act. The Decision Record makes clear that the dispositive issues in the review were discussed with the Applicant at the hearing.

2. The findings made by the Tribunal were open to it on the evidence before it. Such findings were not illogical or unreasonable. The Applicant’s grounds are, as submitted by the First Respondent, bare assertions and fail to raise an arguable case of jurisdictional error on the part of the Tribunal.

3. The application will be dismissed and costs shall follow.   

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  30 May 2017