CGK16 v Minister for Immigration

[2017] FCCA 429

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGK16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 429

Catchwords:
MIGRATION – Protection (Class XA) visas – applicants claimed to fear harm by practice of their faith – adverse credibility findings were open before the Tribunal – the Tribunal complied with s.425 the Tribunal complied with its statutory obligations of procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 140, 425, 476.

First Applicant: CGK16

Second Applicant: CGL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2212 of 2016

Judgment of: Judge Street

Hearing date: 8 March 2017

Date of Last Submission: 8 March 2017

Delivered at: Sydney

Delivered on: 8 March 2017

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondents: Ms K Garaty
HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2212 of 2016

CGK16

First Applicant

CGL16

Second 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 jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 July 2016 affirming a decision of the delegate not to grant the applicants protection visas.

2. The first applicant is the mother of the second applicant. Both applicants were found to be citizens of China and their claims were assessed against that country. 

3. The first applicant arrived in Australia on 11 November 2012 as the holder of a TU580 visa. On 16 July 2013, the first applicant’s son’s TU 571 visa was cancelled and as a result of s.140 of the Act, the first applicant’s visa was consequentially cancelled. Review proceedings were commenced in a differently constituted Tribunal on 22 July 2013 by the first applicant in relation to the cancellation of her visa. The cancellation decision was affirmed on 3 March 2014 by a differently constituted Tribunal. It was not until 24 March 2014 that the first applicant applied for a protection visa.

4. The second applicant had arrived in Australia as the holder of a TU 571 visa on 11 March 2012 which was cancelled on 4 June 2013. This was the subject of cancellation proceedings which commenced on 4 June 2013 and the TU 571 visa was cancelled on 16 July 2013.

5. The second applicant sought a review before a differently constituted Tribunal and on 7 February 2014, a differently constituted Tribunal affirmed the decision to cancel the second applicant’s TU 571 visa. It was not until 24 March 2014 that the second applicant joined in the application by the first applicant for a protection visa. The second applicant participated in the application as a member of the family unit. 

The Delegate

1. The first applicant claimed to fear harm by reason of the practice of her faith of Yiguan Dao. The first applicant alleged that her husband had been arrested on two occasions in 2010 for preaching Tao. The first applicant alleged that she was detained because she was caught worshipping in 2011.

2. The applicant alleged that she went to an altar in Campsie in 2014.  The applicant alleged that in 2014, the government sent agents to destroy their house and altar and that her husband was put into gaol for three days. The first applicant claimed to need protection in order to defend her freedom of faith.

3. The delegate made adverse credibility findings in relation to the first applicant. The delegate did not accept that the applicants are genuine Yiguan Dao practitioners in Australia. The delegate did not accept the first applicant’s claim that she had been a follower of Yiguan Dao since her childhood. The delegate did not accept that the first applicant set up Yiugan Dao altars in China and that she and her husband came to the attention of the Chinese authorities on account of that.

4. The delegate made reference to carrying out an internet search in relation to trying to locate a temple in Campsie and being unable to do so.

5. The delegate found that the first applicant was not a genuine adherent of the Yiguan Dao and was of the view that the applicant did not satisfy the requirements of s.91R(3) of the Act in relation to the conduct engaged in Australia.

Assessment of refugees convention criterion

1. The delegate found that the applicant was not a genuinely motivated Yiguan Dao practitioner, and that her claims in that regard are not credible. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugee’s Convention reason and was not satisfied the first applicant’s fear was well-founded. 

Assessment of complementary protection criterion

1. The delegate was not satisfied there are substantial grounds for believing, that as a necessary and foreseeable consequence of the first applicant being removed from Australia to China, there is a real risk that the first applicant will be subject to significant time in the People’s Republic of China. The delegate found that the first applicant was not a person in respect of whom Australia had protection obligations. 

2. Having refused the protection visa application of the first applicant, the delegate refused to grant a protection visa to the second applicant as a member of the family unit included in the application.

The Tribunal

1. By letter dated 3 February 2016, the first applicant and the second applicant were invited to appear before the Tribunal to give evidence and present arguments. The first applicant’s appeared before the Tribunal to give evidence and present arguments on 2 March 2016, 20 April 2016 and 11 July 2016.

2. The Tribunal identified the background of the applicants and set out the relevant law including the Ministerial direction, and then set out the applicant’s claims and evidence. 

3. Based on the information and evidence presented to the Tribunal, the Tribunal did not accept that the first applicant was an adherent of the Yiguan Dao when she was very young, or that her family dedicated a small room in the house for an altar, or that they secretly practiced their faith, or that her husband was also a Tao practitioner, or that they both helped other followers establish altars, or that her husband was arrested twice by the local government, or that she was detained and questioned and tormented, or that the items relating to the shrine were confiscated and the altar sealed by the police, or that the second applicant was an adherent of Yiguan Dao or that he had suffered any discrimination of any action at school, or that he was sent to Australia for that reason, or that they were practitioners of Yiguan Dao in Australia. The Tribunal was not satisfied the applicant suffered any of the harm claimed.

4. The Tribunal was satisfied that the first applicant had fabricated the claims pertaining to both herself and her son for the purpose of applying for protection.

5. The Tribunal identified reasons in support of the adverse findings.  Those reasons included the considerable delay in the lodgement of the application for protection by the applicants. The adverse findings in relation to the applicants’ credit cannot be said to lack an evident and intelligible justification. 

6. The Tribunal was of the view that the applicants began attending a Temple in Australia in order to bolster their claims for protection. Just as the delegate had identified, the Tribunal also tried to identify whether there was a Temple and was unable to find one. The Tribunal did not accept the applicants’ claims regarding their faith. The Tribunal considered there was no real chance or real risk of the applicants suffering serious or significant harm if they returned to China. The Tribunal did not consider that either applicant will continue to follow Yiguan Dao in China as they are not genuine adherents.

7. The Tribunal was not satisfied that the applicants face a real chance or real risk of suffering serious or significant harm if they are returned to China as a result of being imputed as adherents of Yiguan Dao. The Tribunal was not satisfied that the applicants were persons in respect of whom Australia had protection obligations. The Tribunal found the applicants did not meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Act.

Before this Court

1. The grounds of the application are as follows:- 

   Orders sought by the Applicant

   1. We, my son and I both are unable to accept. the decision made by DIBP and AAT to refuse my application on our I-Kuan-Tao grounds as our real risk and danger from our religion in China have not been carefully, comprehensively considered.

   2. AAT failed to consider my family's background especially my husband is also an adherent of I-Kuan-Tao and he was suffered from mistreatment, punishment and threat as well.

   3. AAT failed to give a comprehensive and adverse impact on my child who also has I-Kuan-Tao faith and involved in religious activities, worshipping and practicing in temple or alter.

   4. I don't think AAT's decision is fair enough because AAT claimed Tribunal also attempted to locate reference to a Tianyuan Taoist Temple which is referred to in the supporting documents and NO reference to our temple, Tianyuan Taoist Temple could be found. This is not true because our temple is physical and substantially exists for sure. AAT failed to investigate the information we provided and never asked us to make further comment or explanation after hearing. We feel innocent. and vulnerable in this critical regard. (paragraph 54-55)

   5. We don't think the member has responsible and indentified the virtue of my faith as well as our commitment in pursuing it.

   6. We have a fear to return to my origin country as Chinese government still remain high political pressure on practitioners and persecution against those with commitment of I-Kuan-Tao never terminates.

   7. AAT has lacked of good consideration in our actual practice of religion after arrived in Australia, ignored the evidence we provided in Australian altar. making decision base on assumption.

   8. AAT's decision lacks of convicting reason in our statement and explanation provided and gives us no chance to common on the outstanding issues after hearing. AAT's decision on our credibility is unacceptable and made me a real stressful.

   The Grounds of the Application are:

   1. My son and I are both I- Kuan-Tao practitioners and pursuing our faith in China and Australia. I am now with my son in Australia. My husband who is now in China is also an I- Kuan-Tao adherent and we as a family treat our faith as spiritual pillar. We have suffered hard experience in China in practicing our religion.

   2. My son and I have strong fear to return to China where the situation against I-Kuan-Tao remains no change, persecution against activists and practitioners still going on, and relatives adversely implicated. We have no future and carrier development if go back to origin and will be the target by government and being life challenged.

   3. Currently, I-Kuan-Tao in China is still outlawed in China, and people who pursue Tao are targeted and tortured by Chinese government as evil cult, allegation against Tao followers are arrested and persecuted. Religious freedom has never been given into our life.

   4. We truly believed our risk and danger are imminent and unavoidable if being repatriated to China and my son will be fallen into a vulnerable victim as cult relative.

   5. For sake of our religious freedom, especially for my son's future we wish to be protected by Australian government.

2. On 10 November 2016, the Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

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

4. The Court explained that in summary this meant that the Court was considering whether the Tribunal’s decision was unlawful or unfair.  The Court explained to the applicants that if the Court was satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and the matter would be sent back for further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed.

5. The Court explained that it would have identified the evidence, then hear submissions from the two applicants, then hear submissions from the solicitor for the first respondent and then hear submissions from the two applicants in reply. Both applicants confirmed that they understood the nature of the hearing as explained by the Court. 

Applicants’ submissions from the bar table

1. From the bar table, the first applicant maintained that she had been persecuted in China and that she had had trouble with the authorities. The first applicant disagreed with the Tribunal’s rejection of her credit.  To the extent that the first applicant’s observations in relation to the rejection of her credit amount to an accusation of bias, bias must be clearly alleged and properly proved. The adverse findings by the Tribunal in relation to the applicants’ credit are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

2. It was a relevant matter for the Tribunal to determine the applicants’ credit in relation to the applicants’ claims. For the reasons already given, those adverse credibility findings were open. Nothing said by the first applicant from the bar table identified any jurisdictional error. 

3. The second applicant also raised that the Tribunal had rejected his mother’s credit and for reasons already given, that was a course open to the Tribunal on the material before the Court. The second applicant also raised the conduct of the Tribunal in seeking to identify if there was a Temple at Campsie. This was precisely the same conduct that had already been identified as having been engaged in by the delegate, who made adverse credibility findings in relation to the applicants’ claims. 

4. I accept the submission of the first respondent that the information obtained by the Tribunal as a result of its inquiries was additional evidence about an extant issue and did not constitute the raising of a new or additional issue such as to trigger any obligation to give another hearing. No such step was required by procedural fairness.

Consideration

Paragraphs 1-8

1. In relation to the originating application, the paragraphs 1 to 3 and 5 to 8 under the orders sought by the applicant are in substance an invitation to this Court to engage in impermissible merits review. This Court does not have power to make fresh findings of fact or to revisit the merits. Nothing in paragraphs 1 to 3 and paragraphs 5 to 8 identify any jurisdictional error in the conduct of the review by the Tribunal. 

2. Ground 4 raises the same issue as was raised by the second applicant from the bar table. For the reasons already given, the inquiry by the Tribunal about the existence of the Temple concerned an issue apparent already on the delegate’s decision and did not constitute the raising of a new issue or additional issue such as to require an obligation to give another hearing or any other step.

3. On the material before the Court, there is no breach of s.425 of the Act. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

4. On the material before the Court, I am not satisfied that the Tribunal denied the applicants procedural fairness in the conduct of the review. None of the matters identified in paragraphs 1 to 8 of the orders sought identify any jurisdictional error. 

Paragraphs 1-5

1. Paragraphs 1 to 5 under the grounds of the application repeat the substance the applicant’s claims. Nothing in paragraphs 1 to 5 identified in the grounds of the application identify any jurisdictional error. Nothing said by the applicants from the bar table establishes any jurisdictional error. 

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 March 2017