BMP18 v Minister for Home Affairs

[2019] FCCA 855

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMP18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 855

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – application for protection visa – claims of fear of persecution for reason of religion – application dismissed.

Legislation:

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

Cases cited:

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Appellant P119/2002 v Minister for Immigration (2003) FCAFC 230

Applicant: BMP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 824 of 2018

Judgment of: Judge Humphreys

Hearing date: 3 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Parramatta

Delivered on: 3 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Morris of Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $7328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 824 of 2018

BMP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is judgment in the matter of BMP18 v The Minister for Home Affairs & Anor. I note that Ms Morris appears for the Minister and the applicant appears unrepresented, but with the assistance of an interpreter.

2. BMP18 is a Chinese national.  He arrived in Australia on 21 May 2008 on a subclass TU 571 student visa.  He ceased studying in June 2008, after approximately two and a half months, and also applied for permission to work, which was refused.

3. The applicant’s student visa expired on 15 March 2011, at which time he became an illegal entrant into Australia.

4. On 24 October 2014 the applicant applied for a Protection (Class XA) visa (‘Protection Visa’) on the basis that he faced persecution in China due to his Christian faith.  A delegate refused the grant of the Protection Visa on 3 September 2015.

5. The applicant then applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review.

6. On 26 February 2018 the applicant appeared before Member Smidt.  The Tribunal affirmed the delegate’s decision on 1 March 2018.

7. The applicant now seeks judicial review of the Tribunal’s decision. The Tribunal’s decision runs to some nine pages. After setting out the relevant law regarding refugees and protection visas under s 36(2)(a), the member then set out the requirements under s 36(2)(aa) for complementary protection.

The Tribunal’s decision

1. The Tribunal found the following in terms of the claims by the applicant.

2. The applicant comes from a Christian family and attended a family church in China with his parents from the age of eight.

3. The Tribunal noted the applicant’s claim that he was detained and ill‑treated once or twice before coming to Australia because of his involvement in church.

4. The Tribunal noted that after the applicant departed China, his father was detained, lost property and was driven out of business because, the applicant claims, of his attendance at a house church

5. The Tribunal noted the applicant claims he remained in Australia after he ceased to be a student in 2008 because he was afraid he would be arrested or face other serious harm if returned to China.

6. The Tribunal noted the applicant claimed he has attended various Mandarin‑speaking churches in Australia since October 2008. The applicant claims that if returned to China he would attend a house church and he would therefore be at risk of serious harm or significant harm from the Chinese authorities.

7. The Tribunal noted, at paragraphs 16-22, country information that was available in respect of Fujian Province, the People’s Republic of China.  The Tribunal noted that that country information indicates that large numbers of Fujian people worship in ‘Three‑Self Patriotic Movement’ (‘TSPM’) and ‘Catholic Patriotic Association’(‘CPA’) linked places of worship. 

8. The Department of Foreign Affairs and Trade (‘DFAT’) assesses the direct interference by local authorities in the operation of TSPM or CPA linked churches in Fujian rarely occurs and that people are generally openly able to practise their religion.

9. At paragraph 20, DFAT noted that given the legislative protections for freedom of religious belief extend only to government‑affiliated churches, in‑country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches that operate discreetly. 

10. However, those who engage in active and public proselytization or are perceived to openly criticise the Chinese Government Communist Party, Chinese Government, or the framework that regulates religious practice, would be exposed to harassment, raids, destruction of property and pressure to join or report to the affiliated churches, and occasional violence and criminal sanction.

11. At paragraphs 22 - 37, the Tribunal considered the applicant’s claims.  The Tribunal found that his claims lacked credibility.

12. At paragraph 24, the Tribunal noted that the applicant did not apply for protection until six and a half years after he arrived in Australia, six years after he ceased to attend classes as required by his student visa, and over three years after his visa expired.  The Tribunal noted that he must have been aware that his visa only permitted him to remain in Australia as long as he continued to study.

13. The Tribunal had some difficulty in accepting that he was not aware of the availability of protection visas. The Tribunal advised the applicant that, in the circumstances, his failure to seek protection until six years after he arrived in Australia cast doubt on his claims.

14. At paragraph 27, the Tribunal found the applicant’s evidence regarding the problems he faced in China because of his claimed attendance at a house church was confused and unconvincing. The Tribunal was particularly concerned that he was confused as to the number of times he was detained in China prior to leaving.

15. At paragraph 29, the Tribunal found the applicant’s evidence regarding the problems his parents faced following his departure from China was confused and unpersuasive.  In saying that, at paragraph 33 the Tribunal accepted that the family home was taken by local authorities in order to make way for a road.

16. The Tribunal accepted his father may have been denied adequate compensation and detained because of a dispute with local authorities in relation to these developments.  However, the Tribunal did not accept that his parents were detained due to their religious beliefs.

17. At paragraph 34, the Tribunal found that the applicant’s evidence that he was a committed Christian prior to arriving in Australia was at odds with his evidence that he did not attend church in Australia until at least six months after he arrived.

18. The Tribunal, at paragraph 36, found that after considering all relevant evidence they were not satisfied that the applicant was a practising Christian in China. His failure to apply for a Protection Visa for a number of years was indicative that the applicant was not fearful of harm when he arrived in Australia.

19. At paragraphs 37 – 45, the Tribunal considered the applicant’s religious practices in Australia.  The Tribunal found that at the delegate’s interview, and then at the hearing before the Tribunal, the applicant demonstrated some knowledge and understanding of Christianity and the Bible.  At the hearing the member noted that the applicant attended church about once every two weeks and read the Bible at home once a week.  The Tribunal noted that he had stated that all Christian churches were the same and did not appear to be concerned about the particular church he attended.

20. The Tribunal noted that the applicant maintained he would be at risk of harm if returned to China and added that in some villages the local authorities repressed all house churches.

21. The Tribunal accepted the applicant had read the Bible, or at least parts of it, and that he had attended some churches in Australia. They did not find the applicant’s evidence regarding his attendance at a church in Australia persuasive.  There are issues regarding the applicant’s claimed attendance at an Anglican Church in Padstow and his inability to differentiate between an Anglican Church and a congregational church.

22. The Tribunal found that the applicant had informed himself of some of the contents of the Bible and occasionally attended church in order to enhance his claims for protection.

23. In paragraph 43, the Tribunal concluded that there was nothing in the evidence which suggested there was a real chance he would face serious or significant harm on return to China if he continued to practise his religion by attending many of the registered churches or, indeed, one of the numerous unregistered churches that are tolerated by the government in Fujian.

24. At paragraph 44, the Tribunal found that it was not satisfied that the applicant would be denied the right to practise his religion if he returned to China, or that he would face serious or significant harm if he continued to practise his religion in China as the same manner in which he claims to have practised it since arriving in Australia. 

25. Finally, at paragraph 46, the Tribunal considered the applicant’s claims both individually and cumulatively. The Tribunal also considered whether or not there was real risk if returned and was satisfied that there was not.

The grounds of appeal

1. The grounds of appeal that have been filed are difficult to understand in their totality. They are as follows:

   (i)AAT did not give me a fair chance to explain my case.  AATs mistake and irresponsible behaviour caused my case failure.

   (ii)AAT did not believe that I am Christianity.

   (iii)AATs officials’ attitude was mandatory.

   (iv)AATs interpreter could not explain my case correctly.

   (v)AAT think I applied for protection visa after six years is unreasonable.

   (vi)AAT ignore my persecution in China.

2. There then appears in the grounds the following, which appears in my mind to be an amplification of the grounds of appeal that I have just listed above. I quote:

   Although I submitted a lot of evidence, AAT did not believe I am underground Christianity.  I state that I believe in the underground Christianity and attended activities in China.  If I returned to China, I will suffer persecution by the Chinese Government.  However, AAT think I did not took part in any Christianity Church after I came to Australia. AAT’s officials doubt that I am not real Christianity.

   I explain that I have no any relatives and friends in Australia and I did not know how to connect with the local Christianity church, so I could not find Christianity church in a short term.  However, AAT did not listen to my explanation.  It is not reasonable.

   AAT’s officials’ attitude was mandatory, I was so scared I could not answer the questions better.

   AATs interpreter has poor translation and I could not hear interpreter very well. AATs officials’ attitudes was very terrible. 

   AAT officials think that my student’s visa ceased in 2008, and I apply protection visa in 2014, it is a long time.  I explain that I did not know I can apply for the protection visa in Australia, but officials did not listen to my explanation and consider my actual situation.

   AAT should consider my personal protection.  If I return to China I will be deprivation of my right to live and suffered persecution.  AAT should have examined my risk.

3. My interpretation of those grounds of appeal actually are that the first six are grounds of appeal and that the material I have set out later is merely explanation.

4. The first and the fourth ground seem to allege a lack of procedural fairness in that the applicant was not able to explain his case and the interpreter did not explain his case correctly.

5. The second, fifth and sixth grounds of appeal appear to ask the Court to engage in merits review of the case or that the conclusions are illogical or irrational on the totality of the evidence.

6. The third ground, which is, “The AATs officials’ attitude was mandatory,” I interpret to be an allegation of bias.

7. Notwithstanding the material, which is at the bottom of the grounds of appeal, the applicant does not provide particulars or material such as to allow the Court to really focus in on his claims.

8. The respondents, in their submissions, firstly have indicated that the lack of particulars is such as to lead the Court to actually dismiss the matter, as there is no evidence before it that would sustain the allegations or the grounds of appeal that I have set out above.  Whilst that submission is attractive at first glance, I am not of the view that it would be in the interests of justice for me to dismiss the matter on that basis.

9. Accordingly, I propose to consider the matters as I have set them out above.  As to grounds 1 and 4, being that:

   The AAT did not give me a fair chance to explain my case.  AATs mistake and irresponsible behaviour caused my case failure.

   And:

   AATs interpreter could not explain my case correctly.

   I perceive these to be an allegation of a lack of procedural fairness in the hearing.

10. Now, no particulars are provided, particularly in relation to the alleged substandard interpreting.  In my view, a fair‑minded reading of the decision of the Tribunal indicates that the Tribunal explored with the applicant his evidence.  It put matters of concern to him to allow him the opportunity to respond.

11. I note in particular the guidance given by the High Court in Abebe v The Commonwealth of Australia[1] at 187, per Gummow and Hayne JJ that proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advocate whatever argument she wishes to put in support of her contention that she has a well‑founded fear of persecution for a Convention reason.  The Tribunal will then decide if the claim is made out.

    [1] Abebe v The Commonwealth of Australia (1999) 197 CLR 510.

12. In relation to translation, there must be evidence before the Court that the standard of interpretation was so inadequate that the applicant was prevented from giving evidence or that the errors in translation were material to the conclusion of the Tribunal and adverse to the applicant. In regard to that see Appellant P119/2002 v Minister for Immigration (2003).[2]

    [2] Appellant P119/2002 v Minister for Immigration (2003) FCAFC 230 at [16]-[17].

13. No material has been put forward to the Court that the translation was so poor that the applicant did not have the opportunity to put his case.  It is clear that there were interchanges between himself and the Tribunal member.  I am not satisfied that the ground in relation to the translation can be sustained.  I am not satisfied, on a fair‑minded reading of the decision, that the applicant was unable to put his case.  Clearly, the issues troubling the Tribunal were raised and the applicant was invited to comment on them.

14. Grounds 2, 5 and 6 are as follows:

    AAT did not believe I am Christianity

    And:

    AAT think I applied protection visa after six years is unreasonable.

    And:

    AAT ignore my persecution in China.

15. In my view, these grounds simply invite the Tribunal to engage in merits review.  They can be best described as a disagreement as to the findings.  It is not for the Court to do this.  The role of the Court is to engage in judicial review, not merits review, and again I simply refer to the case of Abebe v The Commonwealth[3] at paragraphs 53 and 54, per Gleeson and McHugh JJ.  There is nothing, in my view, that is either irrational or unreasonable in the findings of the Tribunal.  They include adverse findings on the applicant’s credit.

    [3] Abebe v The Commonwealth of Australia (1999) 197 CLR 510.

16. There was absolutely no doubt that credit and findings of credit are a matter for the Tribunal.  Indeed, they have been described as a matter of “par excellence for the Tribunal” in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000)[4] at paragraph 67, per McHugh J.

    [4] Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.

17. I am not satisfied that grounds 2, 5 and 6 show any jurisdictional error on behalf of the Tribunal.  The Tribunal came to conclusions.  The conclusions may be adverse to the applicant, but that is what the Tribunal was entitled to do.

18. Ground 3 is as follows:

    The AATs officials’ attitude was mandatory

19. I interpret this ground to be an allegation of bias.  The mere fact that the Tribunal made findings against the applicant, including findings on credit adverse to him, is not evidence of bias.  A fair reading of the decision does not disclose any prejudgment or that the Tribunal approached its task other than with a mind open to persuasion.  The Tribunal put matters that were of concern to it, but made findings that were adverse to the applicant.  This is not bias.

20. The Tribunal took the time to put the matters adverse to the applicant to allow him the opportunity to put material that might persuade the Tribunal in his favour.  This, in my mind, is clear evidence of the open mind of the Tribunal and, certainly, there was nothing to indicate either actual or perceived bias.  I cannot see any basis upon which ground 2 raises jurisdictional error.

21. Finally, I am satisfied that the Tribunal did examine, at the last part of its decision, the applicant’s risk and found that there was not a real chance, pursuant to s 36(2)(a), or a real risk under s 36(2)(aa) of serious or significant harm if the applicant were to return to China.

22. I find that none of the claims have been made out and there was no jurisdictional error in the decision of the Tribunal.

23. Accordingly, the application is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate: 

Date:  10 April 2019