BVL15 v Minister for Immigration and Border Protection
[2019] FCA 1410
•30 August 2019
FEDERAL COURT OF AUSTRALIA
BVL15 v Minister for Immigration and Border Protection [2019] FCA 1410
Appeal from: BVL15 v Minister for Immigration & Anor [2016] FCCA 2157 File number: NSD 1562 of 2016 Judge: RANGIAH J Date of judgment: 30 August 2019 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia – decision to refuse appellant a protection visa – appellant claimed he would be at risk of harm when proselytising in China – whether Tribunal failed to consider an integer of the appellant’s claim – appeal dismissed Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Date of hearing: 22 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: Mr L Karp Solicitor for the Appellant: Kinslor Prince Lawyers Counsel for the First Respondent: Ms N Laing Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1562 of 2016 BETWEEN: BVL15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
30 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
The appellant appeals from a judgment of the Federal Circuit Court of Australia delivered on 16 August 2016. By that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming the decision of a delegate of the first respondent (the Minister) to refuse the appellant the grant of a Protection (Class XA) visa.
The appellant is a citizen of China from Fujian province, who arrived in Australia in 2001 on a student visa. It is unnecessary to detail the appellant’s lengthy history of applications for protection visas and ministerial intervention, except to say that on 19 September 2013, he made an application for a protection visa based upon his claim to fear harm in China as a practicing Roman Catholic.
Before the Tribunal, the appellant claimed that he could not practice his faith in a State-sanctioned church in China for reasons including that such churches place restrictions on their members proselytizing. He claimed that he would have to attend an underground church, which would leave him open to persecution at the hands of the Chinese government. For example, in written submissions, the appellant said:
Due to the above mentioned incidents plus the inherent paranoia and over-sensitiveness of the communist party, it is not difficult 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 arrests, fine and labour camp sentences.
The appellant also said in written submissions:
More to the point, it is incumbent upon Christians to reach out to people, sharing the good news with them; evangelizing is the obligation and due responsibility for the true followers…
But, 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. Other than that, no catholic church should have any outreach program and Catholic-related activities outside the government-permitted boundaries are absolutely forbidden.
The Tribunal found:
54.The applicant in the hearing gave detailed reasons why he could not practice in a State-sanctioned church. He said the principles of the State-sanctioned church are completely different from underground churches. He indicated that he needs to follow Jesus. He made reference to Biblical passages which he indicates are inconsistent with the practice of the State-sanctioned church. He referred to the State-sanctioned church being an arm of the Communist Party which manage the affairs of the church. He referred to restrictions on proselytising. ·
55.…The Tribunal is satisfied that the applicant has displayed a knowledge of Catholicism commensurate with him being a practitioner. It is also satisfied that the applicant provided detailed reasons as to why he says he could not practice in a State-sanctioned church, including that the state church is a ‘false temple’ and that the basic tenants of Catholicism and the dogma of communism have nothing in common. In the applicant’s statement provided to the Tribunal following the hearing he reiterates the fact that he could not worship in the State-sanctioned church as it is an arm of the Communist Party. He refers to restrictions on conversion activities. It is claimed that State-sanctioned churches have restrictions on religious activities outside the boundaries set down by the government. It is claimed that the Communist Party accuses Christians of opposing marriage and private ownership. It claimed that the Communist Party teaches hate. It is indicated that even if government churches are led by Vatican bishops the applicant would not be allowed to carry out religious activities as he wishes. It is indicated that there is no Vatican appointed Archbishops or Cardinal in China.
(Underlining added.)
The Tribunal went on to accept that the appellant had been a regular member of the Catholic Church in Australia since 2008 and that he would wish to continue practicing his Catholic faith in China. Although the Tribunal expressed scepticism about the manner in which he would practice his religion in China, the Tribunal was prepared to accept that he would only practice his religion in an underground church.
The Tribunal then rejected the appellant’s claim that he would be at risk of persecution as an ordinary worshipper in an underground church, saying:
61.The independent information before the Tribunal does not support the position that there has been any significant harm perpetrated against ordinary practitioners of Catholic underground churches in Fujian in recent years. The most recent report of harm was the detention of a priest in 2010. The Tribunal notes the information in the DFAT report, cited earlier, of Catholic bishops being detained. The applicant is not a priest, but would be an ordinary practitioner. The Tribunal also notes the information provided by DFAT, cited earlier, which indicates that Catholics in China can experience officially sanctioned harassment and discrimination when their activities are viewed by authorities to be politically sensitive. 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 Fijian who have suffered no difficulty from authorities in recent years.
…
66.That being the case, the Tribunal in this matter is not satisfied that past treatment of practitioners of underground Catholic Churches in Fujian is such that would suggest a real risk of significant harm to the applicant based on being a parishioner of an underground Catholic Church in Fujian today…
…
68.On that basis, the Tribunal. is not satisfied that there is a real risk of the applicant suffering any definition of significant harm to the purposes of the Act as a result of the practice of his religion in either a State-sanctioned or unofficial Catholic Church in Fujian.
(Underlining added.)
The Tribunal went on to affirm the decision to refuse the appellant the grant of a protection visa.
The appellant applied for review of the Tribunal’s decision to the Federal Circuit Court, including upon a ground that the Tribunal had not completely addressed the claim articulated by the applicant based upon the practice of his religion. It is not clear that the argument put in the present appeal was put in quite the same way before the Federal Circuit Court. In any event, the Federal Circuit Court rejected the argument that was made.
In the appellant’s amended notice of appeal before this Court, he relies solely upon a ground to the effect that the Federal Circuit Court erred in finding that the Tribunal considered the entirety of the case advanced by the appellant; and, in particular, that it erred in holding that the Tribunal had lawfully considered the appellant’s claims that his faith would require him to proselytise and that he would do so were he to return to China.
The submission ultimately made by the appellant in the appeal was that the Tribunal had failed to consider an integer of the appellant’s claim, namely that he would wish to proselytise as part of the practice of his religion in China and that doing so would place him at risk of persecution. In this respect, the appellant relies upon Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, where Allsop J (as the Chief Justice was then) said at [42]:
The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration…
The appellant also relies upon Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, where the Full Court held at [45]–[46] that where a decision-maker is required by statute to consider a claim, the decision-maker must engage in an active intellectual process directed at the claim.
The appellant submits that there is no indication in [61] of the Tribunal’s reasons that the Tribunal considered the risk of harm that the appellant asserted he faced as a result of proselytising. The appellant submits that the Tribunal made no finding as to whether the appellant engaged in proselytising in Australia, did not consider the importance of proselytising to the practice of his religion, left it open as to whether he would want to proselytise in China, and did not refer to any information as to how practitioners and underground Catholic Churches in Fujian province in China conducted themselves. The appellant submitted that his claim that he would wish to proselytise in China was so central to his case that it would have been expressly dealt with in the Tribunal’s reasons if it had been considered by the Tribunal.
The Minister submits that the appellant’s claims concerning proselytising were made in the context of his claim that he would only worship in an underground church, and not in a State-sanctioned church. The Minister submits that the Tribunal specifically referred, in that context, to proselytising at [54] and [55] of its reasons. He submits that the Tribunal’s general finding at [61] that the appellant would not seek to practice his religion in any way different to the many underground Catholics practicing in Fujian province encompassed an acceptance of his claim that he would wish to proselytise, but that the Tribunal found that this would not place the appellant at a risk of harm.
It was a central part of the appellant’s claim before the Tribunal that his religious convictions required him, amongst other things, to proselytise. He claimed that this meant that if he returned to China, he would not worship in a State-sanctioned church for reasons including that such churches place restrictions upon its members proselytising or evangelising amongst certain sections of the community. He claimed that, therefore, he would only be able to worship at an underground church in China. This, he claimed, would place him at risk of persecution from the Chinese authorities.
The Tribunal accepted that the appellant would only worship at an underground church in China. It found that he would not “seek to practice his religion…in any way different to the many underground Catholics in [Fujian]…”. The Tribunal found that while practicing his religion in that way, he would not be placed at a real risk of significant harm.
The question is whether the Tribunal’s finding that the appellant would not seek to practice his religion “in any way different to the many underground Catholics practicing in [Fujian]” encompassed a finding that the practice of such persons included proselytising. In my opinion, it did for the reasons that follow.
The Tribunal specifically recorded at [54] of its reasons the appellant’s claims that State-sanctioned churches placed restrictions on proselytising. At [56], the Tribunal also referred to restrictions placed by State-sanctioned churches on “conversion activities”. The Tribunal found that for this reason, amongst others, the appellant would only practice his faith in a Catholic underground church. Therefore, the Tribunal can be understood to have accepted that the appellant would proselytise as part of the practice of his faith as a member of the underground church. However, the Tribunal considered that the ordinary practice of Catholics in underground churches did not attract a real risk of harm from the Chinese authorities. In my opinion, taking the reasons as a whole, and having regard to the way the appellant’s case was put, the Tribunal must be understood to have accepted that the ordinary practice of underground Catholics included proselytising. Having specifically referred to the restrictions placed by the State-sanctioned churches on proselytising, or conversion activities, at [54] and [55], it is improbable that the Tribunal overlooked the appellant’s claim that he would be at risk as a result of such activities as a member of the underground church when reaching its conclusion at [61].
I find that the appellant has not demonstrated that the Tribunal failed to consider the integer of the appellant’s claim that he was at risk of persecution as a result of proselytising as a member of the underground church in the practice of his religion in China. There was no error on the part of the Federal Circuit Court in dismissing the appellant’s application for review.
The appeal must be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 30 August 2019
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