CHN15 v Minister for Immigration

[2016] FCCA 195

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHN15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 195

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection (class XA) visa – show cause hearing – whether findings of the Tribunal lacked an evident and intelligible justification – no arguable jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: CHN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2993 of 2015

Judgment of: Judge Street

Hearing date: 5 February 2016

Date of Last Submission: 5 February 2016

Delivered at: Sydney

Delivered on: 5 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr R White
Mills Oakley Lawyers

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2993 of 2015

CHN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 13 October 2015 affirming the decision of a delegate not to grant the applicant a protection visa.

2. The applicant is found to be a citizen of China and travelled to Singapore residing from 1999 to 2002 when he then returned to China. On 24 September 2013 the applicant was granted an FA600 visitor visa and the applicant departed China on 19 October 2013.  That visitor visa ceased on 20 January 2014.  The applicant applied for protection on 6 January 2014 which the delegate refused on 1 September 2014.

3. By letter, dated 12 August 2015, the applicant was invited to attend a hearing before the Tribunal on 10 September 2015, which the applicant attended, to give evidence and present arguments and was assisted by an interpreter.  

4. The applicant alleged that in June 2002, on his return to China, he started attending gospel teachings and Bible learning, and that in December 2006 the police raided a church service and arrested the applicant and other attendees, and that he was fined and released after an undertaking. The application alleges that he and his fellow worshippers moved the gatherings to homes in order to avoid detection by police.

5. The applicant claimed that in a gathering held on 4 August 2013 he arrived late to see the police arrest several members of his congregation.  The applicant said he returned home and packed, and immediately departed for Shanghai before deciding to travel to Australia.  The applicant claims that his religious friends were detained for 20 days, and the applicant alleges that after he arrived in Australia he initially attended the Salvation church and then a church at Campsie which was conducted in Chinese.

6. The applicant alleged that he had documents supporting his religious activities, and he also provided a copy of his Brazilian work visa which he told the delegate required him to undertake work with a company that had arranged the visa. 

7. On 10 December 2015 a Registrar of this Court fixed the matter for a show cause hearing today under r.44.12 of the Federal Circuit Court Rules 2001. Those orders made on 10 December 2015 provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. At the commencement of the hearing the Court explained to the applicant the nature of the r.44.12 show cause hearing, and the applicant confirmed he understood the explanation given.

8. The details of the application are as follows:

   1. AAT has no reasons for refusing my church membership just I didn’t know the address.

   2. AAT is not fair to ask me to prove my church activities in Singapore.

   3. I clarified my evidence about the time difference at Immigration Department, but AAT still used it against me.

   4. AAT is not right to consider that I had visa to Brasil and I should be going to Brasil.  I have right not to go to Brasil.  [sic]

9. In relation to ground 1, the Tribunal identified documents that were provided to it.  In relation to the document alleging the applicant had been baptised in Singapore, the Tribunal noted the document was unsigned, had a seal with a name on it but no other identifiers, and there was no address and no original signature and that the document had not been verified.

10. The Tribunal also noted that the applicant referred to a series of photographs which he claimed proved he was a Christian.  The Tribunal noted the photocopies of a number of black and white photos which appear to show a kind of ritual where the applicant appears to be in water.  The Tribunal said that it had given little weight to these photos in the absence of any genuine proof to verify their legitimacy.  The Tribunal said the applicant could not provide any further details in relation to the baptism, the circumstances of the ceremony, or the significance of the central issue relating to the sacrament itself.

11. These matters, together with the paucity of any supporting information as to the veracity or authenticity of the documents, were reasons why the Tribunal gave no weight to the photocopies, and the Tribunal concluded that the applicant had not been baptised as claimed.  That finding was open. 

12. The Tribunal also identified that the applicant alleged he attended the Salvation Church but could not identify its address or location on the basis that he said he was taken there by others.  The Tribunal referred to the applicant’s attendance at the Campsie church and that the applicant had given evidence he was not currently attending as work made it impossible, but said that he attended when he could.

13. The Tribunal records asking questions of the applicant in relation to his practising religion.  The Tribunal noted that the applicant, apart from attending church in Sydney, made no other claims about his religious activities in Australia, and the Tribunal concluded that the applicant’s practice of Christianity was one that had to fit into his lifestyle and working commitments and that he could take it or leave it.  The Tribunal regarded this as only a casual commitment to a religious practice that would not subject the applicant to any real chance or real risk of harm if he were to return to China because of his level of Christian faith.

14. In relation to ground 1, the reference to the applicant being unable to identify the address or location of a Salvation Church was a matter for the Tribunal to take into account, and ground 1 does not disclose any jurisdictional error.

15. In relation to ground 2, it was clearly open to the Tribunal to ask questions about the applicant’s religious activities in Singapore and it was open to the Tribunal to make adverse findings in relation to that evidence.  Those adverse findings cannot be said to lack a logical basis and were open on the evidence.  Ground 2 fails to identify any jurisdictional error.

16. In relation to ground 3, there was a correction in the application by the applicant as to the time he spent in Singapore.  The Tribunal does not refer to that error by the applicant and correctly identifies when the applicant was in Singapore.  Nothing in ground 3 identifies any arguable jurisdictional error.

17. In relation to ground 4, no part of the Tribunal’s reasoning appears based on the applicant’s visa to Brazil, and ground 4 fails to identify any arguable jurisdictional error. 

18. From the bar table the applicant contended that the Tribunal hearing was unfair.  The first matter referred to by the applicant in that regard was the Tribunal’s treatment of the baptism and photographic evidence produced by the Tribunal.  Criticism by the applicant in that regard is an impermissible challenge to the merits of the application.  It was a matter for the Tribunal to determine what weight to give the material adduced by the applicant.

19. The applicant also referred to his ability to locate the Campsie church and said that the criticism in relation to his not knowing the address was unfair.  The reference to “not knowing the address” referred to the Salvation Church but, again, nothing said by the applicant identified any arguable jurisdictional error and was, in substance, an impermissible challenge to the adverse findings made by the Tribunal.

20. The applicant again made reference to the Brazilian visa which he said was the subject of questions by the Tribunal.  The Bridging visa was not the basis upon which the Tribunal made any relevant findings.  In relation to the Tribunal’s reasons that the applicant had been unable to attend church, the applicant sought to explain he was working at a place where he could not attend.  The applicant in substance, again was seeking to cavil with the adverse findings made by the Tribunal which were open to the Tribunal.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

21. I am satisfied that the application fails to expose any arguable case of jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 February 2016