BLL15 v Minister for Immigration

[2016] FCCA 314

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 314

Catchwords:
MIGRATION – Review of Refugee Review Tribunal – visa protection – refusal of refugee status – whether lack of evidence – weight accorded to evidence – whether Tribunal imposed arbitrary standard of requisite knowledge of a religion.

Legislation:

Migration Act 1958 (Cth), s.88, 476, s.424A(1) & (3)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
Minister for Immigration and Citizenship v SZLSP (2010) 117 ALD 259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

Applicant: BLL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 264 of 2015

Judgment of: Judge Heffernan

Hearing date: 5 February 2016

Date of Last Submission: 5 February 2016

Delivered at: Adelaide

Delivered on: 18 February 2016

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed 21 July 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 264 of 2015

BLL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.88 of the Migration Act 1958 (Cth) (‘the Act’) for judicial review of a decision of the Refugee Review Tribunal, as it then was, (‘the Tribunal’). On 30 June 2015, the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Protection (Class XA) visa.

2. The grounds of the application are as follows:

   “1.The Tribunal erred in arriving at a conclusion without supported evidence.

   2.The Tribunal failed to disclose country information.  Particularly, the Tribunal in paragraph 32 failed to disclose the country information with regard to that a catholic does not have any problems with the government if he could go to a registered church in China.

   3.The Tribunal failed to interpret the relevant law properly.  Particularly, the Tribunal refused the applicant’s protection visa application by heavily reliance [sic] upon the applicant’s inadequate Catholic knowledge.”

Background

1. The applicant is a Chinese national who originally arrived in Australia on 29 September 2007 as the holder of a student visa.  He arrived on a Chinese passport.  He was granted a second student visa which was due to expire on 29 March 2010.  He left Australia to travel to China on 22 December 2009 and returned to Australia on 14 January 2010.  Shortly before his second visa expired, he made an application for a further student visa but this was refused.  His bridging visa expired on 14 May 2010 and he stayed in Australia unlawfully and without a visa until making his application for a protection visa on 27 August 2013.  He claims that he was raised as, and remains a Catholic, and that as a result he has a well-founded fear of being persecuted by the government in China should he be required to return there.  A delegate of the Minister refused his application for a student visa and he applied to the Tribunal for a merits review.

2. On 5 June 2015, the applicant attended at a hearing of the Tribunal and, with the assistance of an accredited interpreter, gave evidence of his claims.

Tribunal hearing and findings

1. The applicant claimed that whilst he came to Australia to study, he in fact only studied for six months.  He said that he had last spoken to his parents in December 2006.  He claimed that his reason for not having applied for a protection visa at an earlier time after the expiration of his bridging visa, was that he had no money and was in difficult circumstances.

2. The applicant told the Tribunal that whilst he did return to China in 2009 and visited his home town, he did not see either his parents or his brother.  He stayed with relatives and came to learn about the present situation with his parents and brothers.  Those relatives told him that it was too dangerous for him to leave the house and encouraged him to stay inside.  His relatives told him that his parents had been detained because of their Catholicism.  The applicant himself claims that he experienced no harassment or persecution on this visit to China.  He told the Tribunal that if he were to return to China now, he would be arrested by the police because the Chinese government believes that Catholicism is a cult.[1]

   [1]     Case Book (‘CB’) p 128.

3. The Tribunal questioned him about the background of his Catholicism.  When specifically asked, the applicant stated that he was not baptised and that he did not go to church a lot in Australia.[2]  When specifically asked by the Tribunal about an event celebrated by Catholics in December, he was apparently not able to name that event and told the Tribunal that, “he was not that familiar with Catholicism and his parents only took him to some gatherings”.[3]  He claimed however, to attend church gatherings in China about once a week.  When asked, he was not able to suggest to the Tribunal what he believed to be the most important event or celebration for Catholics.  When specifically questioned by the Tribunal, he was able to answer Christmas was about the birth of Jesus and Easter was about Jesus coming back to life. 

   [2]     CB p 128.

   [3]     CB p 128.

4. The Tribunal noted some significant inconsistencies between his written statement and application, and the evidence that he gave before it.  In particular, there was an inconsistency about whether or not he had seen his parents when he had returned to China in December 2009.  In his written statement, he claimed to have seen them at the Ping Tan Hospital, but it was clear in his evidence before the Tribunal that he had had no contact with them since 2006 and that he had definitely not seen them on his return trip to China. 

5. The two versions could not be reconciled by the Tribunal because of the degree of detail in the first written account.  In the first version of events the applicant claimed that he had suddenly heard that his parents were in trouble and that he rushed to China without thinking of the potential consequences.  He claimed that when he saw them in the Ping Tan Hospital, they appeared to have been tortured badly and were underweight and covered in injuries. 

6. When the discrepancy between these two versions was pointed out to him he claimed that a car accident in 2009 had affected his memory.  The Tribunal was not convinced by this explanation.

7. When asked to tell the Tribunal generally about the Catholic Church in China, the applicant apparently responded that he did not know anything about it.[4]  With respect to registered Catholic Churches in China, the applicant’s view was that these were not real churches and that he would not go to them if he were to return to China.  The Tribunal was not satisfied by the explanation that the applicant gave for not having attended church on a regular basis since arriving in Australia in 2007.

   [4]     CB p 129.

8. The Tribunal considered country information about the number of Christians and Catholics in China.  There were about 20 million Catholics of whom around 50% attended registered churches. 

9. The inconsistency as to seeing his parents in 2009 was not the only significant inconsistency.  The Tribunal found his evidence in many respects to be vague and inconsistent with respect to significant matters.  He gave inconsistent answers about when he first attended church in Australia, and the Tribunal found that he was not able to give detailed or convincing answers with respect to his attendances at church whilst in either China or Australia.  The Tribunal found that his lack of basic knowledge about fundamental aspects of Catholicism was, “difficult to reconcile with his claimed long association with religion”.  It also drew an adverse inference from the fact that it took almost six years between his initial arrival in Australia (and four years between his return to Australia from China when he claims that his parents were in detention), and when he lodged his application for protection.  The Tribunal found the fact of his return to China in late 2009 to be inconsistent with the actions of a person who genuinely feared persecution, particularly in light of the fact that his parents had, he claimed, already been imprisoned and tortured.

10. The Tribunal found that he was an unreliable witness and did not accept that he is, or ever has been, a Roman Catholic, or that his parents were Roman Catholics, or that he ever attended or participated in any Roman Catholic or Christian activity here or in China.  It did not accept his claims that his parents had been arrested or mistreated in China by virtue of their religious beliefs.

11. The Tribunal did not accept that there was a real chance that the applicant would suffer harm in China on the basis that he or his parents were Roman Catholics or Christian.  Accordingly, the Tribunal did not accept that there was a real chance that the applicant would suffer persecution for a Convention reason if he were to return to China now or in the reasonably foreseeable future. 

12. The Tribunal considered the complimentary protection obligations and consistent with its findings with respect to his status as refugee, found that there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as a result of his religious beliefs.

Submissions

1. The applicant appeared before this Court unrepresented and with the assistance of an interpreter.  He made brief oral submissions. 

Ground one

1. With respect to ground one, namely that the Tribunal erred in arriving at a conclusion without supported evidence, his submission amounted in effect to an assertion that the Tribunal should have believed him. 

2. The first respondent submits that this ground is untenable given the detailed and cogent consideration the Tribunal gave to the applicant’s claims.[5]  I accept this submission.  The Tribunal reached its conclusion that it could not accept his evidence to having been a Roman Catholic based on a consideration of the content of his claim; the inconsistencies between his evidence before the Tribunal and his earlier written claims; his inability to answer questions on topics that were apparently within his personal experience in a cogent or believable way; and an assessment of his demeanour and presentation as a witness.  To the extent that the findings of the Tribunal were based on the view it took of the applicant’s credit, this was a matter that was entirely for the Tribunal.[6]

   [5]     CB p 131-133.

   [6]     Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [38].

3. I accept the submission of the first respondent, that the applicant’s submission on this ground is in reality an attempt to re-argue the merits of his case based on his disagreement with the central finding made by the Tribunal that he was not a Roman Catholic. 

4. Accordingly, I find that there is no jurisdictional error on the part of the Tribunal on the basis set out in this ground and I dismiss this ground.

Ground two

1. The applicant complains that the Tribunal failed to disclose relevant country information to him, and in particular, the information contained in paragraph 32 of the Tribunal’s reasons.  The applicant submits that the country information which suggests that Catholics do not have difficulties with the government if they attend registered churches in China, should have been disclosed to him.  I have reached the conclusion that this ground must fail for two reasons.  Firstly, it is clear from the reasons of the Tribunal that:

   “It put to him that if he wanted to practice Catholicism in China, he could go to a registered church and not have any problems with the government.  He said his parents told him they were not real churches.  When asked to explain what the difference between them was, he said that he does not know.”

2. It is clear from the decision record of the Tribunal that it did raise this issue with the applicant and put him on notice that this was a live issue. 

3. Secondly, as the first respondent submits, whilst the Act requires the Tribunal to give the applicant clear particulars of any information that it considers would be the reason for affirming the decision under review,[7] there are exceptions to that rule. Section 424A(3) makes it clear that the requirement to give particulars does not apply to information that is not specifically about the applicant or another person, and which is just about a class of persons of which the applicant or another person is a member. For this reason, independent country information is excluded from the duty established by s.424A(1)(a). In effect, the Tribunal was exempted from compliance with s.424A(1) by reason of operation of s.424A(3)(a).[8]

   [7] Section 424A(1)(a) of the Act.

   [8]     SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [106].

4. There is no jurisdictional error disclosed in this ground and I dismiss it.

Ground three

1. The final ground raised by the applicant is that the Tribunal did not interpret the relevant law correctly and placed too heavy a reliance on his inadequate knowledge of Catholicism.  There are two potential strands to this argument.  Firstly, it raises the question of whether the Tribunal made an error of the type identified in, Minister for Immigration and Citizenship v SZLS[9].  Secondly, this argument is a complaint about the weight accorded to an area of evidence.

   [9]     Minister for Immigration and Citizenship v SZLSP (2010) 117 ALD 259.

2. In his oral submissions, the applicant submitted the Tribunal focused on the proposition that if he did not have enough knowledge about Catholicism, it must have meant that he was not a Catholic.  The effect of the applicant’s submission was that to reason in this way was illogical and unreasonable.

3. He also complained that having reached a certain view unfavourable to him as to his lack of knowledge about Catholicism, the Tribunal then put far too much weight on that fact. 

4. If the first strand of the argument is not successful, then the second strand falls away because the weight to be accorded to a piece of evidence is entirely a matter for the Tribunal.[10]

   [10]    Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297.

5. The first respondent submits that having made a careful and thorough enquiry as to the applicant’s knowledge of the practices and beliefs of Catholicism, it then made clear and rational reasons for having reached its’ conclusion.  It submits that the Tribunal was entitled to explore and test the applicant’s knowledge of these matters, and that there was no error demonstrated in the manner in which it approached that task.

6. In exploring, as it did, the degree of understanding the commitment that the applicant had to Roman Catholicism, the Tribunal was not becoming an “arbiter” of the doctrine of that religion.  That it explored the matters it did in the manner it did does not in this case suggest that it approached the applicant’s claims with a closed mind.  In this case, the Tribunal simply explored the level of the applicant’s knowledge, understanding and commitment to his stated religion.[11]

   [11]    Minister for Immigration and Citizenship v SZLSP opp cit at [30] - [37].

7. It was entitled to do this and it established to its own satisfaction that he had so little knowledge and understanding of the basic principles of Christianity and Roman Catholicism, that it could not accept his evidence.

8. Whilst any enquiry of this nature carries the danger of the Tribunal overstepping the mark and imposing an arbitrary standard of knowledge of religion or religious doctrine, it did not do so in this case. The Tribunal simply reached a conclusion that his lack of knowledge; inability to recount matters from personal experience; and apparent lack of commitment to his religion in the last eight years, strongly supported the conclusion that he was not in fact a Roman Catholic. [12]  Having concluded he was not, and never was, a Catholic the Tribunal concluded that he did not have a well-founded fear of persecution should he return to China.[13]

   [12]    Minister for Immigration and Citizenship v SZLSP ibid.

   [13]    CB p 134.

9. It follows that I do not accept the submission of the applicant that the Tribunal was in error by according this finding too much weight.  The finding as to his degree of knowledge of and commitment to Catholicism was clearly central to the question of whether he was a Catholic and accordingly whether he had a well-founded fear of persecution, which was fundamental to the ultimate question of whether he was a refugee.  The applicant’s submission about the weight the Tribunal gave this aspect also ignores the fact that the credit findings that caused the Tribunal to reject his evidence were based on far more than an assessment of his level of knowledge of Catholicism. The inconsistencies in his accounts and his lack of commitment to his religion whilst in Australia were clearly also matters to which the Tribunal accorded significant weight.  In any event, as I have noted above, the question of the weight to be accorded any piece of evidence was entirely a question for the Tribunal.

10. I am not persuaded that there is jurisdictional error disclosed in this ground and I dismiss it.

11. I make the orders set out at the beginning of these reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  18 February 2016