BVL15 v Minister for Immigration
[2016] FCCA 2157
•26 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVL15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2157 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal erred in failing to consider the Refugee criterion where the Delegate had already considered same – whether the Tribunal failed to address the applicant’s religious claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 417 |
| Cases cited: AMA15 v Minister for Immigration & Border Protection [2015] FCA 1424 Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 |
| Applicant: | BVL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2473 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 16 August 2016 |
| Date of Last Submission: | 16 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones, Parish Patience |
| Solicitors for the Respondents: | Mr M Weiss, Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2473 of 2015
| BVL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 12 August 2001 and first applied for a protection visa on 19 August 2003 after his student visa was cancelled. That application was based upon the applicant’s claim to fear persecution in China for reason of his belief in the tenets of Falun Gong. That application was refused on 2 September 2003 and on 13 January 2004 the Refugee Review Tribunal[1] affirmed that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
After an unsuccessful attempt to obtain Ministerial intervention under s.417 of the Migration Act 1958 (Cth), the applicant made a further application for a protection visa on 19 September 2013. That application was made on the basis of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 to the effect, relevantly, that a further protection visa application may be validly made in respect of the criterion in sub-s.36(2)(aa) of the Act (complementary protection criterion) where an earlier application had only been made on the basis of the criterion in sub-s.36(2)(a) (refugee criterion).
The second application for a protection visa was based upon the applicant’s claim to fear harm as a Catholic upon return to China. It will be necessary in due course to examine the precise nature of those claims. For present purposes, it is sufficient to note that the applicant claimed that he would not engage in the practice of his religion in the state authorised church but would practice in the underground church in China and that he would be harmed by the authorities as a result.
On 10 July 2014 a delegate of the Minister made a decision not to grant the applicant a protection visa. The delegate considered whether the applicant satisfied both the refugee criterion and the complementary protection criterion. The applicant applied to the Tribunal for review of that decision. Unlike the delegate before it, the Tribunal limited its consideration to the complementary protection criterion. On 13 August 2015 the Administrative Appeals Tribunal made a decision to affirm the delegate’s decision.
The applicant seeks judicial review of the Tribunal’s decision.
First ground
The first issue in the proceedings is whether the Tribunal erred by failing to consider the refugee criterion in circumstances where the delegate had considered that criterion. In SZVCH v Minister for Immigration & Border Protection (2015) 303 FLR 403; [2015] FCCA 2950 Judge Driver held at [26], that where the delegate considers both criteria the Tribunal is obliged to consider both criteria on review. An appeal from that decision has been heard by a Full Court of the Federal Court constituted by five judges and judgment has been reserved. In those circumstances, the applicant’s solicitor asked the Court to reserve its decision until the Full Court has handed down its decision on the appeal.
I have considered that request but consider that it is not in the interests of the administration of justice to do so. That is primarily because there are binding decisions of the Federal Court which are inconsistent with the decision of Judge Driver: see in particular AMA15 v Minister for Immigration & Border Protection [2015] FCA 1424 (Markovic J) at [50] - [51]. There is no decision of the Federal Court which supports the conclusion of Judge Driver. In light of the present state of the authorities the first ground must fail.
Second ground
The second ground is that the Tribunal did not completely address the religious claim made by the applicant. The applicant argued that, while the Tribunal found the applicant wished to practice Catholicism in an underground church, it failed to consider that this involved illegal conduct under Chinese law and concealing the open practice of his religious faith.
The applicant relied on the application of the principles stated in the majority judgments in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (“S395”), especially at [40] – [41] (McHugh and Kirby JJ).
The Minister argued that there was no issue that the applicant might have to conceal or somehow vary the practice of his religious faith. He argued that the principles in S395 did not apply for that reason and for the additional reason that they were not applicable to consideration of the complementary protection criterion.
Tribunal’s findings
The critical findings made by the Tribunal were as follows. First, it accepted that the applicant would wish to continue practising as a Catholic in China and, in particular, that he would only wish to practice Catholicism in an underground church there: [60].
Secondly, the Tribunal found at [61], that the independent information before it did not support the position that there had been any significant harm perpetrated against ordinary practitioners of Catholic underground churches in the applicant’s home province in recent years and that the recent information about harm concerned priests and Bishops. The Tribunal found that the applicant was not a priest and would be an ordinary practitioner. Further, the country information indicated that Catholics in China can experience officially sanctioned harassment and discrimination when their activities are viewed by authorities to be politically sensitive; however, the Tribunal did not consider that the applicant would seek to practice his religion in any way that might be considered politically sensitive or, in any way different to the many underground Catholics practising in his home province who had suffered no difficulty from authorities in recent years.
Thirdly, in light of the country information referred to in the preceding paragraph, the Tribunal was not satisfied that past treatment of practitioners of underground Catholic churches in the applicant’s home province would suggest a real risk of significant harm to the applicant based on being a parishioner of an underground Catholic church there at the present.
Fourthly, the Tribunal was not satisfied that any change of policy of the authorities was likely, such as to create a real risk of significant harm to the applicant in the present, or in the reasonably foreseeable future, based upon being a practitioner of an underground Catholic church.
The applicant did not suggest that the Tribunal’s summary of the country information was in any way inaccurate. Rather, he argued that the Tribunal’s findings did not deal with the infringement of the applicant’s right of religious freedom, including the expression of his faith through evangelism or the obligation to modify his behaviour so as not to come to the attention of the authorities.
The resolution of these arguments requires close examination of the claims made by the applicant.
The applicant’s claims
The applicant’s claims concerning his religious beliefs were first made in a statutory declaration that accompanied his application for a protection visa lodged on 19 September 2013. In that declaration he explained that he had had a significant change in his religious belief following his attendance at a seminar for Falun Gong practitioners conducted by a devoted Roman Catholic. He claimed that he started to attend catechism class at Western Sydney Chinese Catholic Community and was baptised on 3 April 2010.
He claimed that he was entitled to practice his faith communally and openly but would be at risk if he did that in China because it was a Communist state that did not appreciate the norm of freedom of religions and was sparing no effort in turning the country atheistic.
The applicant stated that he was a genuine member of the Roman Catholic Church following the teachings of the Pope from the Vatican and recognising the Pope’s office and authority. He said however, that churches in China have to register with the Patriotic Religious Association (“PRA”) and abide by the regulations governing religious practices laid down by the Communist Party of China, which was trying to replace the Pope as head of the churches. This, he said, was a great desecration to the Catholic faith and so in supporting the patriotic church would be an insult to true Catholics. The applicant referred to a number of incidents in which Catholic clerics (including Bishops and a priest) were detained for opposing activities of the state, quitting the government-backed PRA and organising Christian faith related camping activities.
The applicant then stated:
[26] Due to the above mentioned incidents plus the inherent paranoia and over-sensitiveness of the communist party, it is not difficulty (sic) to infer that the Chinese government has further tightened its grip on Catholic practice and activities; practitioners are not permitted to proselytize outside the state-sanctioned venues or privative settings. Whoever is caught conducting parish work would inevitably face a wide range of harassments including arbitrary arrest, fine and labour camp sentences.
[27]I believe there is a foreseeable chance for me to be subjected to arbitrary arrest, interrogation and lengthen (sic) incarceration; physical and mental torture should I carry on my routine religious practice in China.
On 11 May 2014 the applicant’s agent sent to the Department a number of documents containing submissions in support of the applicant’s application. The first of these was headed Difference between Government-sanctioned churches and Underground churches and why the persecution on the Roman Catholics has been aggravated over the past few years. In that document it was stated that “evangelizing is the obligation and due responsibility for the true followers” and it was pointed out that “the State-sanctioned Catholic church has specific rules in place, disallowing its members to share Gospels with soldiers, public servants, teachers or any individual under 18 years old”.
In another document, headed Persecution of Christians in [applicant’s home] Province it was stated that:
The underground church has suffered crackdowns and arrests from time to time over the years. [Province] has generally been regarded as one of the areas of China that applied regulations on religion more liberally than others, but some recent sources indicates that there has been in (sic) increase in restrictions there.
The next document was entitled Persecution of Catholics in China and referred in the introduction to “adherents of the unregistered or ‘underground’ Catholic Church in China” and stated that “even individuals of relatively low profile may be arrested during raids on congregations or as a means of intimidating other adherents.” The document later contained the following submission:
The denial of registration amounts to a prohibition on organised practice - effectively, preventing unregistered Christian groups from practising their beliefs at all. We submit that the repression of such fundamental human rights may amount to ‘persecution’ in a sense beyond the forms of ‘serious harm’ envisaged in s91R of the Migration Act.
…
A delegate of the Minister made a decision on 10 July 2014 not to grant the applicant a protection visa. The delegate recorded the applicant’s evidence that “his routine religious practice and the way he “lives his life as a Catholic” is prayer three times a day, reading the bible and singing hymns and attending.”
By letter dated 28 April 2015 the Tribunal invited the applicant to attend a hearing to be conducted on 7 July 2015. The applicant appeared at that hearing and gave evidence in support of his claims. The transcript of that hearing was in evidence. Shortly after the beginning of the hearing the Tribunal asked the applicant what he feared about going back to China. The applicant replied (T.3.31[2]):
As a real Roman Catholic and if I go back and attend the activities that I believe in, I’ll be seriously harmed, including illegal detention and I’ll be put into gaol illegally. Fine ..(not transcribable).. or they would even arrest me at random. And psychologically, I would be receiving brainwashing from them. And physically, they would beat me cruelly and will be sentenced.
[2] Transcript of Tribunal hearing.
There followed a number of questions and responses concerning the applicant’s claims about Falun Gong before the Tribunal returned (at T.7) to the applicant’s Christian claims. In the following passage the Tribunal identifies one of the critical issues on the review (T.8):
Tribunal:So I’ve listened to all your prior evidence to the delegate about your practice of Catholicism. I’ve read your statements, I’ve seen your photographs. I’ve heard Father McGee’s previous testimony and so I accept that you’ve been a practising Catholic since 2008. You’ve indicated that you would want to not practise in a state-sanctioned church.
Applicant: Yeah.
Tribunal:So you would practise in an underground church?
Applicant:Yes.
Tribunal: So the first issue in terms of my credibility concerns I’ve mentioned about you being opportunistic in your claims is really whether that’s true. But let’s accept that that is the case and you would want to practise in an underground Catholic church in [applicant’s home province].
The Tribunal member then outlined the country information concerning the underground church in the applicant’s home province in China before asking about the applicant’s practice of Christianity. The applicant responded by stating some of his beliefs. The Tribunal rephrased the question and the applicant answered (T.9):
Tribunal:No, I accept that you’ve been involved in the Catholic Church significantly over the last five years. I thank you for telling me about your beliefs but what I’m interested to know about is how you practise your religion, what your routine is.
Applicant: And every day I would recite..(not transcribable).. Holy Mother..(not transcribable).. twice and on Sundays I go to church to do the mass. On Fridays, I go to Ashfield THS to pray and praise God. And on Sundays, we share Bible. And also in my daily life, I get on the trains and also some socialising events to evangelise and I distribute some small pamphlets regards to our church for example, happiness and peace. And mainly it talks about our group activities and also becoming a witness.
And also I invite those people to come to our church and get involved with our activities. For example, mass, Bible sharing, prayers and praising the God. And also I talk to them but I can only speak Mandarin. And so most of them, they come from China, so I talk to them. I talk to them about the only God in this world and that he loves us. And in this world, there’s heaven and hell and each of us, we have our souls. And when I evangelise, I would shout out for the guidance from God and hope that he can guide me.
And I would find opportunities to talk to them but I wouldn’t hit the point immediately, otherwise they wouldn’t like it. I would talk to them about something and then gradually get closer to evangelise.
The applicant then gave further reasons for which he would not practice in the state-sanctioned church on return to China.
The Tribunal next took evidence from a Catholic priest, Father McGee and another witness. It then stated the critical issue before returning to take further evidence from the applicant (T.12):
Tribunal:.... Just to highlight, I guess the key issue is me needing to be satisfied that the applicant as a practitioner in underground church in [name of province] would face any definition of significant harm. My investigations have shown no adverse treatment of practitioners in recent years. …
Neither the applicant nor his agent indicated that this was not the issue or that there was any other aspect of the applicant’s claims that required determination.
The Tribunal then raised an issue arising from evidence given by the applicant to the delegate concerning his willingness to be involved in a state-sanctioned church and allowed the applicant time to respond to its concerns in writing as well as to make any further submissions after the hearing.
The applicant provided a written submission and a further written statement on 16 July 2015. One of the topics dealt with in the submission was the persecution of the underground Roman Catholics in the applicant’s home province. The submission was, relevantly:
[12]… The Chinese government, the communist party per se, has always been hostile towards members of unregistered religious groups and has arrested, inflicted physical and psychological harm to those individuals who do not want to practice their faiths in state-endorsed Churches.
[13]Such persecutory and repressive practices are being carried out not solely against Clergies, Priests and Nuns, but, more often than not, against low-profile members of catacomb Catholic Churches. We noticed that the Refugee Review Tribunal has recently confirmed the members of underground churches in China face severe risks of persecution. We understand you, as the presiding member of [the applicant’s] review application, are not bound by the decisions made by other Tribunal members in separate cases, but we submit the following recent RRT members’ assessments on the persecution and oppression facing Roman Catholic members in [province], China for your reference.
In his further written statement the applicant addressed the essential differences between the Patriotic Catholic Church of China and the Roman Catholic Church; he said there were two: first, that the government-endorsed churches in China explicitly prohibit the conduct of religious activities outside the boundary set down by the government and secondly, that the manifesto of the Communist Party was inconsistent with the instruction from the Bible concerning marriage. That aspect of the statement is not particularly easy to understand, however, the applicant went on to say in his statement:
[16]… Furthermore, through the constant study the Bible and inspiration from the Holy Ghost, I come to realize the downsides and wicked nature of the Communist regime. So if I return to China and share these thoughts with others, I would be definitely persecuted. Also per the evidence provided in my statements, it proves that the Chinese government bears no tolerance to the bishop and priests loyalty to the Pope.
Consideration
The applicant submitted that the Tribunal failed to appreciate that he was saying that he would only wish to practice what he believed to be the true Roman Catholic faith, but that in China he could not do so. He said this was because the essential priestly hierarchy with the Pope at its head and including Bishops, Archbishops and Cardinals was suppressed, or at least severely disrupted.
He also argued that his evidence clearly stated that he considered evangelism to be an essential duty of a member of the faith but that the Tribunal failed to address this aspect of the claim in any way.
The applicant relied upon the observation in the judgment of McHugh and Kirby JJ in S395 at [40] that:
…
The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors.
…
While he acknowledged that, at the time S395 was decided, the criteria for a protection visa did not include the complementary protection criterion, the applicant submitted that what their Honours had to say about persecution applied equally to the definition of "significant harm" in s.36(2A), in particular, with regard to the fundamental human right of freedom of religion.
The applicant argued that the Tribunal fell into the error identified by the majority in S395 of considering whether the applicant could live in China as a member of the "underground" RCC, not whether that would involve choices forced on him by the fear of harm.
In VFAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 367, Weinberg J said at [32] that the “unifying principle” in S395 was that “[a]sylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm” nor can they be “expected to live ‘discreetly’ to avoid such harm”.
In Minister for Immigration & Border Protection v SZSCA (2013) 222 FCR 192; [2013] FCAFC 155 Robertson and Griffiths JJ, citing Kirby J in SZATVv Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [89], explained at [56] that the common ground in the two joint majority judgments in S395 was:
…
(a)the need for the decision-maker to focus attention on the propounded fear of the individual asylum seeker and whether it was “well-founded”;
(b)that issue has to be considered on an individual basis and not by reference to a priori reasonable conduct that could or might avoid persecution; and
(c)to concentrate on what would happen to the asylum seeker in fact, not what could or might happen if the asylum seeker behaved in a particular way that would reduce the risk of persecution, such as by behaving discreetly.
The majority of the High Court in Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 stated, at [17]:
The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed – whether the fear of persecution was well founded – had not been addressed.
(Citation omitted)
In my view, the Tribunal did not fall into any of the errors asserted by the applicant. First, the applicant’s claim was that he would not participate in the state-sanctioned church in China essentially because he did not believe that it was the real Catholic church. The Tribunal accepted that claim.
Secondly, as a consequence of the first claim, the applicant claimed that he would engage and participate in the underground church in China. The Tribunal also accepted that claim. By accepting that claim, the Tribunal was not deciding how the applicant might avoid persecution by amending in some way his conduct in order to appease the authorities. To the contrary, it accepted that the applicant would do what he said he would do. This did not involve any rejection of, or failure to deal with the applicant’s evidence about the duty to evangelise. That aspect of the applicant’s claims was an essential part of the reason for which he said he would not take part in the state-sanctioned church. The Tribunal recognised and expressly referred to that claim: [55].
At the hearing of this matter, the applicant’s solicitor identified the following statement in the Tribunal’s reasons as involving the asserted error:
[61] … The Tribunal does not consider that the applicant would seek to practice his religion in any way that might be considered politically sensitive or in any way different to the many underground Catholics practising in [province] who have suffered no difficulty from authorities in recent years.
The applicant’s solicitor submitted that the reference in that statement to “politically sensitive” applied to evangelism. There is, with one possible exception, no support in the material for that submission. Critically, the Tribunal accepted the applicant’s claim that he would engage in his faith in the way he wanted to. On a proper understanding of its reasons, that included what the Tribunal referred to as “conversion activities”. The possible exception just mentioned is that, at [16] of the applicant’s post-hearing statement, having referred to the differences between the Catholic Church and the Communist manifesto the applicant stated: “so if I return to China and share these thoughts with others, I would be definitely persecuted.” In my view however, the possibility that the applicant would do so was rejected by the Tribunal in the part of [61] relied upon by the applicant.
Thirdly, the Tribunal did not fall into the error of falsely dividing Catholics in China into two groups of “ordinary practitioners” and others. Rather, this was a case, more like Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142; [2005] HCA 29 where the Tribunal found, on the basis of country information, that not all Christians were subject to persecution and that the way in which the appellant would practice his Christianity would not bring him to the adverse attention of the authorities. The country information relied upon by the Tribunal in this matter revealed that the only recent incidents of harm suffered by underground Catholics in China involved clerics such as priests and Bishops. As I have said, the applicant did not dispute the accuracy of the Tribunal’s assessment of that information. The applicant did not claim that he was a cleric or that he would, or might become a cleric. It was on that basis that the Tribunal concluded that there was no real risk of the applicant being subjected to significant harm upon return to China.
In light of those conclusions, it is unnecessary to examine whether the principles in S395 apply in respect of the complementary protection criterion. The solicitor appearing for the Minister properly drew the Court’s attention to the decision of Judge Driver in SZSWB v Minister for Immigration & Border Protection [2014] FCCA 765 where his Honour found at [65], that there was no logical reason why the principle in S395 should not apply to the Conventions which support the complementary protection provisions of the Act, in particular, the International Covenant on Civil and Political Rights. Although an appeal to the Full Court of the Federal Court of Australia was successful, that point was not decided. I note that an application for special leave to appeal to the High Court from that decision was refused. That said, it is unnecessary for me to consider the issue further.
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 26 August 2016
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