CAZ17 v Minister for Immigration

[2018] FCCA 207

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 207

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal’s decision was reasonable – whether the Tribunal’s credit findings were inadequate – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 36, 476.

Applicant: CAZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1452 of 2017

Judgment of: Judge Street

Hearing date: 30 January 2018

Date of Last Submission: 30 January 2018

Delivered at: Sydney

Delivered on: 30 January 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Donald
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1452 of 2017

CAZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s power under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 April 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant first arrived in Australia on 5 August 2002 and made eight trips outside Australia over an intervening 11 years, including his last arrival on 22 May 2013. The applicant held a series of student visas, the last of which expired on 15 March 2011. On 10 December 2009, the applicant applied for a partner visa, which was cancelled on 3 May 2012, and the applicant lodged an appeal, and the decision was affirmed by the Tribunal on 1 July 2013.

3. It was not until 28 November 2014 that the applicant made the application for protection, some 12 years after arriving in Australia. The applicant claimed to fear harm by reason of his attendance at the Local church, and his practice of the Christian faith. The applicant also claimed to be unable to pay the social compensation fees due to the birth of his three children in Australia. The applicant claimed to be unable to register the children’s birth in China, because they would be black children, and be discriminated against.

4. On 19 March 2015, the delegate found the applicant failed to meet the criteria for the grant of a visa and on 22 April 2015 the applicant applied for review.

The Tribunal’s decision

1. The applicant was invited to attend a hearing, and attended a hearing on 11 April 2017 to give evidence and present arguments. The Tribunal summarised the background of the applicant in relation to the application for review. The Tribunal set out the relevant law at the end of its reasons. The Tribunal summarised the applicant’s claims and evidence. The Tribunal did not accept, having considered all of the evidence, that the applicant is a truthful witness. The Tribunal found that the applicant had manufactured the totality of his claims relating to his religion. The Tribunal did not accept the applicant is a Christian, nor that he has any involvement in Christianity in China or Australia. The Tribunal accepted that the applicant has three children, and that he has breached China’s family planning policies.

2. The Tribunal did not accept the applicant will be subject to fines for all three children. The Tribunal found that the applicant and his wife were permitted to have two children in the relevant area, being Fujian, and the Tribunal did not accept that the applicant would be unable to pay the social compensation fee that would be payable in respect of the third child.

The applicant’s religion

1. The Tribunal provided detailed reasons in support of the adverse credibility findings in respect of the applicant’s religion. The Tribunal found that the applicant’s evidence was indicative of someone who was attempting to learn some Local church concepts, but did not have any genuine interest in understanding those concepts. The Tribunal had regard to the applicant’s explanations relating to his limited understanding of those concepts, and took into account that the hearing was a stressful situation. Having regard to those factors, the Tribunal still was not satisfied the applicant’s knowledge of Christian concepts or Local church concepts was in any way consistent with his claims to be from a Christian family who has been practicing as a member of a Local church for many years.

2. The Tribunal identified the applicant had had 15 years in Australia and ample opportunity to freely participate in a Local church or other Christian churches. The Tribunal found that the limited knowledge of the applicant is indicative of the fact that he has no such involvement, and that to the extent of his involvement, he is learning some aspects of Local church for the purpose of fabricating claims for Australia’s protection. The Tribunal did not accept that the applicant had been baptised or that he had attended or participated in religious activities in Australia.

3. The Tribunal found that its finding that the applicant’s claims in relation to religion had been fabricated for the purpose of lodging an application for protection were strengthened considerably by the timing and significant delay in the lodgement of the application for protection from his arrival in Australia. The Tribunal also took into account the applicant’s return to China on eight occasions as not being indicative of someone who fears harm in China. The Tribunal did not accept the applicant’s explanation for the significant delay in the lodgement of the application for protection.

4. The Tribunal found the applicant’s claims in respect of religion relating to the Local Church and underground religious churches in Fujian were not supported by independent evidence before the Tribunal. The Tribunal took into account detailed information relating to the treatment of underground religious groups in Fujian. The Tribunal was not satisfied the applicant would have any involvement in underground Christian churches on his return to China or that there is a real chance he will suffer serious harm for this reason upon his return to China. Nor was the Tribunal satisfied there is a real risk the applicant will suffer significant harm for this reason if he returns to China from Australia.

Family planning policies

1. The Tribunal referred to the Chinese family planning policies, and referred to the applicant’s evidence, as well as taking into account detailed country information. The Tribunal did not accept that the applicant will be liable for payment of the social compensation fee for all of his three children. The Tribunal accepted that a fine of social compensation would be payable for the applicant’s third-born child. The Tribunal was not satisfied, having considered all the evidence, that the payment of the social compensation fee for the third child is such that it amounts to serious harm or significant harm. The Tribunal was not satisfied there was a real chance the applicant would suffer serious harm due to the payment of the social compensation fee or that there was a real risk that he would suffer significant harm for this reason.

2. The Tribunal was not satisfied there is a real risk or a real chance that the applicant or his wife will be required to undergo sterilisation in Fujian. The Tribunal took into account country information in that regard. The Tribunal found that the applicant has the means to pay the fine for the third child, which can be paid by instalments, and that the child’s registration is not predicated on the basis of payment of the fine.

3. The Tribunal did not accept that the applicant and his wife would be subject to forced sterilisation or any other means of forced contraception, and was not satisfied that there is a real chance that the applicant would suffer serious harm as a result of this issue or that there is a real risk he will suffer significant harm for this reason.

4. The Tribunal did not accept there was a real chance or a real risk that the applicant would suffer serious or significant harm as a result of underground Christianity. Having considered all of the evidence, both individually and cumulatively, the Tribunal was not satisfied there was a real chance the applicant would suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion if he returns to China now or in the reasonably foreseeable future. The Tribunal found the applicant does not have a well-founded fear of persecution for a Convention reason.

5. The Tribunal found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk the applicant would suffer significant harm. The Tribunal found the applicant did not meet the criteria under s 36 of the Act and affirmed the decision under review.

Proceedings before this Court

1. On 17 August 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

2. The Court explained that the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Grounds of the application

1. The grounds of the application were in substance set out under the relief sought relevantly as follows:

   1. I could not accept the decision made by AAT as it is unfair and unconvincing. AAT’s assessment is not made according to the facts but hypostatical. For instance, Tribunal decision claimes that it is not satisfied that the applicant’s knowledge of Christian concepts or Local church concepts was consistent with my claims to be from a Christian family who has been practicing as a member of Local Church for many years (ranging from paragraph 17-19). This conclusion is against truth and biblical principle “justification by faith”. Tribunal failed to consider my faith rooted in spirit, instead of verbal expression. I don’t think my statement has been thoroughly considered especially my commitment in Local Church and the risk for my church practice undergrounded in China.

   2. Tribunal' s assessment on the house church tragedy in which my father was arrested in May 2013 and same misfortunate occurred on many other church siblings of mine during the periods of my short visits to China over the past years was unrealistic, injustice and unfair (paragraph 20). I don't think my statement and explanation given in the hearing has been well understood and taken into a good account.

   3. I dint think the real religious situation in China especially the oppression and repression policy imposed by Local governmental authority against house church has been given ample consideration. l don' t think the country information described by tribunal is reflected on the reality on my hometown exclusively. I don' t think tribunal treats my case fairly and thoroughly.

   4. I don’t think the tribunal member has made a reasonable decision by studying my explanation given in the hearing in regards to so called “my late lodgment of protection visa” . Tribunal has ignored my awareness of protection visa and misinterpreted my motivation of doing so (paragraph 21). The fact is I was short of correct understanding to the protection visa for a asylum seeker and psycho1ogica1ly I hate to be called refugee with disgrace and dispute in personality as per my understanding in the past. The purpose for my lodgment for protections genuine and down to the earth.

   5. I couldn't agree with Tribunal's assessment and decision claiming my family especially my children will not fall into the victims or crisis due to the sanction imposed by Chinese Family Planning policy, with actually large amount of social compensation is imposed due to our breach of Family Planning. I don' t think tribunal has fairly reviewed my religious background and family situation as a whole for our inadequate economic and financial condition and stress at current stage especially our poor ability in coping with the unexpected difficulty, hurdles and sanction forcibly demanded by government policy. The reality in my rural hometown is not as optimistic as tit described by the tribunal.

   6. I dint think the country information introduced by Tribunal is proper to reflect the truth of what has happened in my hometown in term of the repression and persecution against Local Church which is currently being listed without legal status. House churches are undergrounded, biased abused and under surveillance. In Chine, the Patriotic Church is the only legal entity with bible manipulated and monopolized by the government administration. Recovery Bible has been banned and targeted as illegal and forbidden to be published. I wonder how come such important facts are not revealed by the country information to support my argument.

   7. I think tribunal’s assessment on my religion is inadequate. Tribunal also failed to manifest my understanding on Local Church as a real adherent. Tribunal failed to make a necessary investigation especially enquiring the valuable comment or asking a reference from my church involved in Australia. Tribunal’s decision lack of persuasion as it ignored the kernel of my faith. It is noting persuasive but a hypothetical and psychologically harmed instead. Tribunal’s assessment for my credibility is wrong and made me in a vulnerable position.

2. Within the application, under a heading entitled “The Grounds of the Application Are”, there are three paragraphs summarising the applicant’s claims and the three paragraphs do not identify any further alleged error by the Tribunal.

Consideration

Submissions from the bar table

1. From the bar table, the applicant took issue with the adverse finding by the Tribunal in relation to the social compensation fee. The Tribunal provided rational and cogent reasons in support of its adverse finding, including reference to country information in respect of the social compensation fee being only in respect of the third child, and that the applicant would be able to pay the same. The applicant provided no competing country information to the Tribunal, and the Tribunal’s adverse findings in relation to the social compensation fee were open for the reasons given by the Tribunal.

2. The applicant also from the bar table took issue with the adverse finding in respect of his religious activity. The Tribunal provided detailed logical and rational reasons in supports of its adverse credibility findings in respect of the applicant’s religion. Those adverse reasons were not ones in respect of which the Tribunal adopted an approach of being an arbiter of faith. It was relevant and reasonable for the Tribunal to take into account the applicant’s limited Christian knowledge, together with the very substantial delay in the present case in making the adverse credibility findings that were open to the Tribunal for the reasons given by the Tribunal.

3. The applicant also raised from the bar table that he may be faced with sterilisation if he returns to China. That claim was expressly considered and rejected by the Tribunal. That was an adverse finding that was open to the Tribunal in the circumstances of the present case and cannot be said to be unreasonable or illogical.

4. The applicant also raised from the bar table concern in relation to the future education of his children and their ongoing medical treatment. Those were not matters that were raised before the Tribunal. An issue not raised before the Tribunal cannot give rise to any jurisdictional error by the Tribunal. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. In relation to Ground 1, the Tribunal provided orthodox reasons in respect of the applicant’s claims and evidence and made adverse findings that were open to the Tribunal for the reasons given by the Tribunal. Those reasons cannot be said to be irrational or illogical, and took into account in relation to the applicant’s claims concerning Christianity. As referred to above, this is not a case where the Tribunal adopted a standard of being an arbiter of faith.

2. It was relevant and reasonable for the Tribunal to take into account the applicant’s knowledge and activities, when assessing the applicant’s credit given the period in which the applicant has been in Australi, prior to making an application for protection. In substance, Ground 1 is an invitation to this Court to engage in impermissible merits review. No error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, the Tribunal expressly referred to the applicant’s claim that his father was put into custody, and the Tribunal made adverse credibility findings that were open to the Tribunal, for the reasons that were given by the Tribunal. The applicant’s disagreement with those adverse findings does not identify any jurisdictional error. The reasons were rational and logical as summarised above. No jurisdictional error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, the Tribunal took into account country information in relation to China. In respect to the applicant’s religious claims, no competing country information was provided by the applicant. The adverse findings by the Tribunal, in relation to the applicant’s claims in respect of religion, were open, and there is no substance in the proposition that the Tribunal did not take into account the whole of the applicant’s claims and evidence. The applicant’s disagreement with the Tribunal’s findings as to the reality in his hometown is, in substance, an invitation for this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 3.

Ground 4

1. In relation to Ground 4, the delay in the applicant’s application for protection was an obvious, rational and logical matter to take into account in the present case, together with the applicant’s trips overseas. The applicant’s disagreement in the adverse finding, in that regard is, in substance, an invitation for this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 4.

Ground 5

1. In relation to Ground 5, the applicant’s disagreement with the adverse findings by the Tribunal in respect of the social compensation fee does not identify any relevant jurisdictional error. The Tribunal took into account country information in making those findings and those findings were open and reasonable for the reasons given by the Tribunal. The applicant’s assertion as to the “reality” in his rural hometown is in substance an invitation to this Court to engage in an impermissible merits review. No jurisdictional error is made out by Ground 5.

Ground 6

1. In relation to Ground 6, the applicant’s disagreement with the country information does not identify any jurisdictional error. The applicant’s assertion that the country information was biased is without substance and it was appropriate, reasonable and logical for the Tribunal to take into account the country information. The weight to be given to country information was a matter for the Tribunal. No competing country information was provided by the applicant. No jurisdictional error is made out by Ground 6.

Ground 7

1. In relation to Ground 7, this, in substance, reflects a disagreement with the adverse findings in respect of the applicant’s religion. There was no obvious inquiry in respect that a critical factor was easily able to be made so as to give rise to a duty to inquire. Ground 7, in its disagreement with the adverse findings, and disagreement in respect to the applicant’s credibility is, in substance, an invitation to this Court to engage in impermissible merits review. The adverse findings by the Tribunal were open for the reasons given by the Tribunal, as summarised above. No jurisdictional error is made out by Ground 7.

2. For reasons earlier given, paragraphs 1 to 3 that thereafter appear under “The Grounds of the Application” are assertions to the applicant’s claims and do not identify any relevant jurisdictional error.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 March 2018