BVR16 v Minister for Immigration
[2019] FCCA 1531
•9 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVR16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1531 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa to the applicant – claim that the Administrative Appeals Tribunal committed jurisdictional error – no such jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA |
| Cases cited: ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 AWA15 v Minister for Immigration [2018] FCA 604 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 |
| Applicant: | BVR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1884 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 9 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr L. Leerdam |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 19 July 2016 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $6,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 26 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1884 of 2016
| BVR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
The Applicant is a male citizen of China aged 60 years, having been born on 2 July 1958.
By Application filed in this Court on 19 July 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 21 June 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 9 January 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background and Claims for Protection
On 18 January 2014 the Applicant arrived in Australia on a three month Visitor (Class FA) (Subclass 600) visa and he applied for the Protection Visa on 17 April 2014.
The Applicant’s claims for protection were as set out in answer to questions 36 to 42 of his Protection visa application form and his Written Statement dated 2 May 2014 and were two-fold, namely:
a) he had started to know about Christ in 2007. There is no religious freedom in China and he was persecuted for his Christian religion into which he was baptised on 5 October 2010. On 16 March 2013 the police came to a religious gathering and arrested him and others and they were taken to a police station. The police punished and kicked him. He and his son were detained and tortured for one day and were released after his wife had paid RMB10,000;
b) in January 2008 he was given notice that his three acres of land and the land of other villagers were to be expropriated to build a train station, to which expropriation he initially agreed because he was to get compensation. When he then found that the proposed compensation was about RMB40,000 he would not accept that amount as it was not reasonable. However, the land was expropriated and he could not grow food and he did not have any income and on 10 March 2008 the police came with bulldozers and he quarrelled with the police; and
c) he claimed to fear that if he returned to China he would be put in a detention centre and a labour camp.
Relevant Criteria and Law Applicable To Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 5 January 2015.
The Delegate recorded in her Decision Record that the Applicant had said at the interview that he grew rice in China on four mu of land and that after the expropriation of three mu in 2008 he had one mu left to cultivate and that it was his main source of income before he left for Australia and his wife continues to cultivate the one mu in his absence.
In the result, the Delegate substantially rejected all of the Applicant’s claims as she was not satisfied that the Applicant was a committed or practising Christian or that he had left China to flee religious persecution but, rather, came to Australia to better his economic prospects. The Delegate also rejected the Applicant’s claim that his land in China had been expropriated and she refused to grant the Protection visa to the Applicant.
Tribunal Decision
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 9 February 2015 and he appeared before the Tribunal at a hearing on 14 June 2016 to give evidence and present arguments.
From [25] – [34] of its Decision Record the Tribunal recorded the Applicant’s claims as made in writing and at the interview with the Delegate, of which interview the Tribunal had listened to an audio recording.
From [35] – [50] of its Decision Record the Tribunal recorded the Applicant’s evidence at the Tribunal hearing and its questioning of the Applicant in connection with his claims and evidence. At [39] the Tribunal recorded that the Applicant had told it that he had come to Australia “because all his land was forcefully expropriated by the government in 2008”.
At [41] of its Decision Record the Tribunal recorded that the Applicant had clarified before it that after 2008 he had not been detained or harmed by the police or the Chinese authorities.
At [43] of its Decision Record the Tribunal recorded that it had put to the Applicant pursuant to s.424AA of the Migration Act 1958 (Cth) (the Act) that he had in his written application and at the interview with the Delegate asserted that he had farmed a total of four mu of land and that three Mu of land was taken and that he was left with one mu, but at the Tribunal hearing he was asserting that all his land was expropriated. The Tribunal further recorded that the Applicant maintained the position that all his land was expropriated although at the same time saying that his wife farmed less than one mu of land.
At [45] of its Decision Record the Applicant is recorded as having told the Tribunal that he had only become a Christian in Australia and was not a Christian in China. The Tribunal at [47] recorded the evidence of the Applicant that:
a) there would be no problem for him in China for being a Christian;
b) he did not think he would be harmed if he is a Christian in China; and
c) he had not been harmed in China for being a Christian in the past.
Then at [49] of its Decision Record the Tribunal recorded that the Applicant could not explain the difference between Christianity and Buddhism and that he did not know who was Jesus Christ.
From [51] – [72] of its Decision Record the Tribunal set out its findings. It expressed its view that it was concerned about inconsistencies in the evidence of the Applicant given prior to the hearing before the Tribunal and at the Tribunal hearing itself.
At [53] of its Decision Record the Tribunal found that the Applicant’s evidence at the Tribunal hearing that he was never a Christian in China made it likely that his earlier claims to have been a Christian in China had been fabricated.
At [56] – [60] of its Decision Record the Tribunal accepted the Applicant’s claims that most of his farm land had been expropriated in 2008 for which he was paid inadequate compensation and that he had protested about this, including at the time when the bulldozers arrived, and that he had been arrested, beaten and detained for one day and one night.
On the other hand, also at [60] of its Decision Record, the Tribunal accepted the Applicant’s evidence that he had not been arrested, detained or harmed between the incident in 2008 and his departure from China for Australia in January 2014. I note that the reference at [60] to the date of his departure from China as being “January 2013” is clearly a typographical error. At [61] the Tribunal found as follows:
[61] The Tribunal is satisfied that the applicant was not of adverse interest to the authorities when he departed China as he was able to obtain a passport and depart twice and re-enter China in October 2013 without any difficulty.
At [63] and [64] of its Decision Record the Tribunal stated as follows:
[63] However, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future he will continue to lobby and protest about his land expropriation as he has resigned himself to the fact that the government will not pay him more compensation even though he considers that it is a serious injustice. The Tribunal accepts that the applicant’s main motivation for coming to Australia was to seek a better life and earn an income in a country where he believes the government respects human rights.
[64] Taking into consideration the above findings both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if he returns to China now or in the foreseeable future, for reasons related to his imputed political opinion as a result of his objections to the expropriation of his land and the inadequacy of the compensation paid to him.
Then at [66] of its Decision Record the Tribunal noted its acceptance of the Applicant’s evidence that he was not a Christian in China before he departed for Australia and did not accept his earlier claims to have been arrested, detained or harmed when attending a church gathering in China. At [68] to [69] the Tribunal found as follows:
[68]Based on the applicant’s complete lack of understanding or knowledge about Christianity, after claiming to be a Christian for over two years, the Tribunal is not satisfied that the applicant is currently a genuine believer in Christianity or a practising Christian.
[69]Based on the fact that the applicant could not describe what happened in church services that he claims to have attended regularly, together with the lack of any supporting evidence that the applicant attends the church at Auburn regularly, the Tribunal is not satisfied that the applicant attends a Christian church or Christian gather in Australia regularly.
Accordingly, in the circumstances the Tribunal found that Australia did not owe protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and it affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Applicant relies on three Grounds in his Application filed in this Court being:
1. The applicant's claim that he fears persecution by the authorities in China if he returns is based on the facts that he was arrested, tortured and interrogated in 2008 and 2012 because of his actions to get compensation. The Tribunal did not accept that the events in 2008 and 2012 occurred. This is a case where the Tribunal should have taken into account the possibility that the events occurred even though it found that those events did not occur. A substantial basis for fear may exist even though it is less than a 50% chance that the object of the fear will eventuate (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559). The Tribunal may believe that persecution will not occur if an applicant has returned but may nevertheless be obliged to consider that there is a real chance that it will occur (Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121). If the Tribunal's reasoning shows that it had "no real doubt" (Guo), or the finding in relation to the events is "a positive and unhesitant one" (Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 760 at [321), then the Tribunal is not required to consider whether there is a real chance of persecution if it is wrong in its finding. The Tribunal expresses doubt in making this finding. It does not set out in detail its reasons for making the finding. This is a case where the Tribunal is required to consider whether it might be wrong and whether, notwithstanding its finding, there might still be a real chance of persecution.
2. The Tribunal selectively took the view that the petition were not convention related. It is a premature conclusion and an error. Of the country information the applicant was not given an opportunity to comment on it. It is a breach by the Tribunal of s.424A of the Migration Act 1958. The Tribunal failed to consider the respondent's statement that back in China he would be detained and tortured. The statement is referred to once but never again mentioned or considered. When it clearly elevates the risk of persecution the applicant might face. Likewise the only direct but fleeting reference to the applicant's Christianity appears on pages of the Tribunal's findings but the Tribunal did not talk clearly about it.
3. The applicant was not given the opportunity to comment on written material opposed to his claims and that the Tribunal breached fundamental obligation of procedural fairness and natural justice for that reason. The Tribunal could pick and choose material on which it relied to make its findings on matters of fact and that process can involve great selectivity.
Consideration
Ground 1
First, there is no evidence that the Applicant “claimed that he was arrested, tortured and interrogated” in 2012. Second, the Tribunal did accept that the Applicant was arrested, beaten and detained in 2008: see [58] of the Decision Record of the Tribunal. Otherwise, the Tribunal accepted the Applicant’s own evidence at the Tribunal hearing that he had not been detained or harmed in China after 2008 up to his departure for Australia: see [41], [47] and [60] of the Decision Record of the Tribunal. The Tribunal made its findings with certainty and without doubts and it was not obliged to apply the “what if I am wrong test”.
Ground 1 is not made out and does not establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
This Ground may suggest some form of bias by the Tribunal in taking a selective or arbitrary view of the Applicant’s claims but there is not, in my view, a skerrick of evidence of either apprehended or actual bias.
The Applicant was invited to and attended a hearing and it is clear from the Decision Record of the Tribunal that he was given a meaningful opportunity to present his claims and the Tribunal gave those claims meaningful consideration. Further, the Tribunal had proper regard to the law and criteria applicable to Protection visa applications which it summarised in its Decision Record from [5] – [19] and thereafter applied at [64] – [65]; [71] – [72] and [73] – [75] of its Decision Record.
As to the complaint made in this Ground in relation to country information, s.424A(3)(a) of the Act rendered any obligation under s.424A(1) in relation to country information inapplicable as long as it was not specifically about the Applicant or another person which the DFAT Country Report referred to at [55] of the Tribunal’s Decision Record was not. As Kenny J said in VHAJ v Minister for Immigration (2003) 131 FCR 80 at 95 [50]:
[50] In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act: see, eg, Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration and Multicultural Affairs [2001]FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration and Multicultural Affairs [2001] FCA 402 per O’Loughlin J; Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430 per RD Nicholson J;Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 per Mansfield J; and W104/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [36]-[38] and [43] per Gray J.
Finally, in relation to this Ground, it is clear that the Tribunal did give consideration to the Applicant’s Written Statement of 2 May 2014: see [25] – [26] of the Decision Record, and gave extensive consideration in the subsequent body of its Decision Record to the claims made in that Written Statement. However, it was the Applicant’s own evidence at the Tribunal hearing that undercut his written claims, particularly his evidence that he had not been detained or harmed by the police or authorities since 2008, which evidence was inconsistent with his written claim to have been arrested, punched, kicked, detained and tortured on 16 March 2013: see [4(a)] above.
Finally in relation to this ground, there was no “fleeting reference” to the Applicant’s claims to be a Christian. He disavowed at the Tribunal hearing that he had been a Christian in China. Nevertheless, the Tribunal gave consideration to his claims of practising Christianity in Australia even though he said he would not be harmed in China for being a Christian if he returned. Further, the Tribunal did not constitute itself as an “arbiter of doctrine”. Whilst the Tribunal cannot act as an “arbiter of doctrine” by setting up its own standard of what amounts to genuine religious belief or practice, there is no impediment to the Tribunal testing and evaluating the applicant’s claim to be a Christian. As Flick J in the Federal Court stated in ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 at [24]:
[24] The manner in which the Refugee Review Tribunal set out to test the Applicant’s claim to be a Christian was a function entrusted to it. There was no impediment to the Tribunal testing the claim being advanced. An assertion on the part of the Applicant that he was a Christian did not manacle the Tribunal to the confined task of simply testing whether he had been baptised or attended church. The Applicant by making the claim could not preclude the Tribunal from testing the more fundamental assertion of fact as to his Christian belief. In testing the claim being made, the Tribunal moreover did not seek to impose upon the Applicant any preconceived views as to the beliefs a person would have to hold in order to be a Christian; it was simply testing the claim made.
Further, see a general discussion of this area of the law in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at 372 – 376 [30] – [42] per Kenny J.
In my view, Ground 2 also fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 3
There is no evidence of the Tribunal exhibiting or being guilty of procedural unfairness or breaching of the principles of natural justice. If the Ground is meant to refer to country information not being given to the Applicant to give him an opportunity to comment upon, the answer to any such complaint is that the Tribunal was not bound to because of the terms of s.424A(3)(a) of the Act. Further, the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 per Kenny J at [42], and SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 at [13] where Flick J said at [13]:
[13] The making of findings of fact and the weight to be given to the evidence in the course of making those findings are matters entrusted to the Tribunal alone.
In carrying out its role the Tribunal, like a Court of Law, is necessarily involved in the sifting and selecting of relevant evidence and the consideration and evaluation of the evidence which it considers to be relevant, and there is nothing improper or untoward in such a process.
In my view, Ground 3 does not establish jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application to this Court is to be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 5 June 2019
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