Caw15 v Minister for Immigration

[2016] FCCA 781

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 781

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: CAW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2733 of 2015

Judgment of: Judge Emmett

Hearing date: 8 April 2016

Date of Last Submission: 8 April 2016

Delivered at: Sydney

Delivered on: 8 April 2016

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Ms Sharon Sangha
(Mills Oakley Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2733 of 2015

CAW15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 7 October 2015, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 16 September 2015 and handed down on 17 September 2015 (“the Tribunal”).

2. On 12 November 2015, the applicant attended a directions hearing before a Registrar of the Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 21 December 2015.

3. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant.

5. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

Background and the Applicant’s Protection Statement

1. On 24 January 2014, the applicant lodged an application for a protection visa with the Department of Immigration and Border Protection (“the Department”).

2. In support of his protection visa application, the applicant provided a statement in which he stated:

   a)His family were devout Christians in China and they were members of an unregistered church;

   b)His parents held church gatherings at his home or “at a quiet place”, and his parents often changed the place and time of the gatherings. He participated in the gatherings held at his home;

   c)On 8 May 2004, his father was arrested at a church gathering. Although he was later released by the police, his father received a stern warning from the police. However, his father did not give up his beliefs;

   d)On 24 December 2005, he and his two brothers were baptised. 

   e)On 5 March 2006, his father was holding a church gathering at his home when the house was surrounded by seven police officers. The police broke into the house, handcuffed the attendees, including the applicant, and took them to the local police station;

   f)After his father told the police that he organised the church gathering, the applicant and the others were released from police custody and they were issued stern warnings;

   g)Subsequently, his father was detained for three months and was forced to undertake labour reform. Later, his mother paid a fine for his father’s release. Upon release, his father was required to report to the police once a month;

   h)In October 2006, his father left China for Italy. Police officers came to the applicant’s house and were angry that his father had absconded;

   i)In 2009, the applicant came to Australia to study as his parents did not want him to live in fear. He was concerned about going back to China after the expiration of his visa. His parents also did not want him to return to China and wished him to live in Australia indefinitely; and 

   j)He would be persecuted for his beliefs if he returned to China. 

The Delegate’s decision

1. On 23 June 2014, the applicant attended an interview with a delegate of the Department (“the Delegate”).

2. The Delegate noted the applicant’s protection claims as well as further information provided by the applicant to the Department in support of those claims.   

3. Ultimately, the Delegate did not accept that the applicant was a devout Christian or that he practised Christianity. The Delegate found that the applicant displayed limited knowledge of Christianity at the interview before the Delegate.  

4. The Delegate also found the applicant’s four year delay in seeking protection to be unsatisfactory.

5. Accordingly, the Delegate did not accept that the applicant fled China for the reasons he gave.  The Delegate found that the applicant’s fear of persecution in China was not genuine.

6. Accordingly, on 16 December 2014, the Delegate refused the applicant’s application for a protection visa.

The Tribunal’s decision

1. On 13 January 2015, the applicant lodged an application for review of the Delegate’s by the Tribunal.

2. On 3 September 2015, the applicant attended a hearing before the Tribunal. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. In its decision record, the Tribunal noted the various exchanges that it had with the applicant in the course of exploring the applicant’s claims.

3. The Tribunal noted the applicant’s oral evidence at the hearing that he had no idea whether he was a Christian; that he no longer attended church; and that he now follows his own thoughts and opinions whereas he just followed his parents when he was in China. 

4. The Tribunal noted that at the hearing, the applicant did not claim that the Chinese authorities had caused him any past harm and did not claim that his father had undergone labour reform, although he confirmed that his father was detained. The applicant then gave evidence to the Tribunal about various warnings that he and his father had received. However, the Tribunal noted that when asked whether anything had happened in China to cause the applicant any fear, he responded that it was all about his parents, especially his father.

5. The Tribunal noted that the applicant did not suggest that his mother had experienced any problems in China after his father moved to Italy in 2006. Further, the Tribunal noted the applicant’s evidence that his mother was now able to attend a registered church and that she no longer participated in private unregistered church gatherings. The applicant also told the Tribunal that his father had obtained residency in Italy two years earlier and had visited China for a month at one stage. Further, the Tribunal noted the applicant’s evidence that his father did not suffer any harm during his visit to China, and that he was able to leave China again without any incident. 

6. The Tribunal noted that when it asked the applicant if there was anything else apart from his Christianity that made him fear returning to China, the applicant claimed that he was concerned that information about his protection visa application would be leaked to the Chinese government as a result of a data breach that had occurred on 10 February 2014 on the Department’s website.

7. The Tribunal had general concerns about the applicant’s overall credibility. However, the Tribunal accepted that the applicant no longer practised Christianity; that he did not have a firm belief in religion; and, that he would not practise as a Christian if he returned to China.

8. The Tribunal accepted that the applicant’s father organised private gatherings at their home which came to the attention of the police and led to his father being detained. However, the Tribunal noted that the applicant did not suggest that he had suffered any harm other than a stern warning from the police.

9. The Tribunal noted that the applicant was able to continue his education, obtain a passport and leave China without any incident. Further, the Tribunal noted that the applicant’s father now lived in Italy and was able to enter and leave China without incident. The Tribunal also noted that the applicant’s family no longer held private unregistered church gatherings in their home. The Tribunal also accepted the applicant’s evidence that his mother and brother have continued to live in China without any incident.

10. The Tribunal had regard to a 2015 country information report published by the Australian Government Department of Foreign Affairs and Trade (“DFAT”). The DFAT report indicated that religion could be practised in China within state-sanctioned boundaries, as long as such practices did not challenge the interests or authority of the Chinese Government. 

11. In light of the above, the Tribunal found that the applicant would not practise Christianity or attend unregistered church gatherings if he returned to China, and it did not accept that the applicant ever had any firm and committed adherence to Christian beliefs. As such, the Tribunal found that the applicant would not be arrested by police and suffer persecution if he returned to China. 

12. Further, the Tribunal found that the applicant did not suffer any past harm due to his parents’ Christianity or because small unregistered church gatherings, organised by his father, took place from time to time at his home.

13. Accordingly, the Tribunal found that there was not a real chance that the applicant would be threatened, harmed or face persecution by the Chinese authorities due to his Christianity, his parents’ Christianity, or the fact that his family had held unregistered church gatherings at his home, now or in the reasonably foreseeable future if he was to return to China. 

14. Based on the evidence before it, the Tribunal found that in considering whether the applicant met the complementary protection criterion, there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, China, that there was a real risk that the applicant would suffer significant harm as defined in s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). 

15. In considering whether the applicant met the complementary protection criterion, the Tribunal had regard to the applicant’s claim that he may come to the adverse attention of the Chinese authorities because his protection visa application details may have been leaked to authorities in China.  The Tribunal put to the applicant that the data breach that occurred on 10 February 2014 from the Department’s website was in respect of persons who were in detention in Australia, and as the applicant had never been in detention in Australia, he would not be affected by the data breach.

16. The Tribunal concluded that the applicant did not satisfy the Convention criteria in s.36(2)(a) of the Act or the complementary protection criterion in s.36(2)(aa) of the Act, and, accordingly, he was not a person to whom Australia had protection obligations. The Tribunal then affirmed the decision of the Delegate to refuse the applicant a protection visa.

The proceeding before the Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

2. The applicant confirmed to the Court that he had not filed any further documents, either in accordance with the directions of the Court or otherwise. 

3. The applicant’s application for judicial review, filed on 7 October 2015, stated the grounds of review as follows:

   “1. The Tribunal underestimated my risk of being persecuted by the Chinese authority. This was a judicial error since the Tribunal failed to properly make the well-founded fear test as per MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559. The persecution was happened to my father, since we belong to 'the same family unit', in my case, the Tribunal should have considered his situation with fair and justice.

   2.  Though since 2006, my family did not suffer any harm, it does not mean there is no risk of the persecution I will face if return to China. According to Amnesty International’s 2014 report, although the Chinese authorities have shown an increasing tolerance for unofficial religious activities that do not challenge the authority of the state, the tolerance varies according to the location. Northeast of China is one of the most highly controlled zone in China. The persecution includes re-education, and a variety of extralegal coercive measures such as arbitrary arrests, forced labor, and physical torture sometimes resulting in death. This information was ignored by the RRT.

   3. I was baptized in 2005. I am a devout underground Christian. The Tribunal did not examine the risk of the persecution I will face if return to China. Because of my religion believes as an underground Christian, the Chinese authority in China wishes to harm me.”

   (Errors in original).

4. Each of the grounds of the application was interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds. 

Ground 1

1. Ground 1 asserts that the Tribunal underestimated the risk to the applicant of being persecuted by Chinese authorities, in circumstances where his father had been persecuted. 

2. In support, the applicant told the Court that since his father had been persecuted, the same thing could happen to his whole family. 

3. As evident from the summary of the Tribunal’s decision above, the Tribunal considered in some detail the risk of persecution to the applicant by the Chinese authorities for all the reasons claimed by the applicant, including as a result of the activities of his father. In particular, the Tribunal had regard to the applicant’s evidence that he had not suffered any past harm and his family had not suffered harm since 2006.

4. The Tribunal’s finding referred to above would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave. 

5. Accordingly, Ground 1 does not raise an arguable case for the relief claimed. 

Ground 2

In Ground 2, the applicant asserts that the Tribunal ignored information from a 2014 Amnesty International report.  The applicant confirmed to the Court that he had not provided the Tribunal with a copy of that report. In any event, the country information referred to by the Tribunal, being the 2015 DFAT report referred to above, was more recent.

1. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

2. The applicant had every opportunity to give to the Tribunal whatever information and material he wished the Tribunal to consider.  It cannot be a jurisdictional error on the part of the Tribunal for it to fail to consider a report that the applicant did not give it, particularly in circumstances where it is a report of country information that predated the country information considered by the Tribunal.   

3. Accordingly, Ground 2 does not raise an arguable case for the relief claimed.

Ground 3

1. In Ground 3, the applicant asserts that the Tribunal did not consider the risk of persecution that he would face due to his profile as a devout underground Christian. 

2. As evident from the consideration of the Tribunal’s decision above, the Tribunal rejected the applicant’s claim of ever having been a Christian. The Tribunal found that the applicant was not at risk in China as a result of his association with an unregistered church and the gatherings organised by his parents.  

3. Again, those findings would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave. 

4. Accordingly, Ground 3 does not raise an arguable case for the relief claimed.

5. In the circumstances, the grounds of the applicant’s application do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at the hearing, identified with particularity the country information to which it had regard, and made findings that would appear to be open to it on the evidence and material before it and to which it applied the correct law. 

2. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error, and none is apparent on the face of the decision record.  In the circumstances, I am not satisfied that the applicant’s application has raised an arguable case for the relief claimed. 

3. Accordingly, in the exercise of the Court’s discretion under rule 44.12(1) of the Rules, and on the basis that the application does not raise an arguable case, the proceeding before this court commenced by way of application filed on 7 October 2015 should be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  29 April 2016