CJF15 v Minister for Immigration

[2017] FCCA 1002

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJF15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1002

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – refusal of protection visa – where Tribunal applied s.91R(3) Migration Act 1958 (Cth) – where Tribunal found Applicant not credible – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91R, 474(2)

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80

Applicant: CJF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2498 of 2015

Judgment of: Judge Hartnett

Hearing date: 3 April 2017

Delivered at: Melbourne

Delivered on: 3 April 2017

REPRESENTATION

The Applicant:  In Person

Counsel for the First Respondent: Ms Grinberg

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The pseudonym assigned to the Applicant be amended to CJF15.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2498 of 2015

CJF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (‘the Tribunal’) made on 22 October 2015.  By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant a protection (Class XA) visa (‘the visa’) to the Applicant. 

2. The application, dated 10 November 2015, sets out the following:

   “Attachment to Grounds of Application

   Orders sought by Applicant

   1.I could not accept DIBP and AAT’s decisions as I don’t think it is fair and reasonable.  RRT failed to exercise a thorough and considerable decision to my fear of return to origin due to my committed faith with Local Church especially my church involvement in Australia also been overlooked.

   2.AAT’s conclusion for my credibility is unacceptable and made me stressful as AAT made no effort in finding my real situation according to my faith and the true situation in my origin for government’s repression and persecution against Local Church.

   3.AAT failed to take into a good consideration for my account to explain why my application delayed due to my difficulty in finding the right church to my ability to reach.

   4.AAT denied my true commitment of faith according to my response to biblical knowledge and this is against the Christianity’s doctrine of justification by faith.

   5.I don’t think I have made any false statements on my background.  If there is anything wrong or inconsistence occurred in our explanation, it must be related to the result of our stress, poor ability of expression during the hearing.

   6.I don’t think AAT has given a significant understanding and consideration in my current claim and loyal religious practice.  I have strong feeling that the member over looked our background by taking concerns in my poor memories on specifics and this challenge made us a real upset and nervous throughout the hearing.

   7.AAT failed to properly consider and ignored the evidence provided, including my parents’ detention due to their religious practice in local church in China.”

3. The grounds of the Application are as follows:-

   “1.I as a Chinese nationals (sic), and overseas student entering Australia in 2007, I pursued my faith of Local Church in China and kept on practicing it in Australia.  I have fear to be persecuted due to my faith if forced to return to origin as local church is outlawed in China and those who pursuing our faith have been targeted by Chinese government as evil cult. 

   2.As committed pursuers of Local church, my parents were ill‑treated and persecuted and I had implicated and gained harsh excrescence (sic) in China due to my religion as well.  My risk and danger is imminent and unavoidable in origin as my family is a good evidence for this and they are targeted by the authority and fell into victims till present. 

   3.For sake of my religious freedom, I apply for protection by Australian government and wish my claim and situation can be reconsidered.”

4. On 17 November 2015, the First Respondent filed a response to the application wherein the First Respondent submitted that the decision of the Tribunal dated 22 October 2015 is not affected by jurisdictional error and is therefore a prohibitive clause decision within the meaning of s.474(2) of the Migration Act 1958 (Cth) (‘the Act’).

5. On 13 April 2016, Registrar Buljan ordered, relevantly, as follows:-

   “3.  On or before 25 May 2016, the Applicant shall file and serve:

   (a)  an amended application, if any;

   (b)  a supplementary Court Book, if any; and

   (c)  written submissions.

   4.On or before 8 June 2016, the First Respondent shall file and serve written submissions.”

6. The Applicant did not file any amended application or written submissions in this proceeding.  The First Respondent did so file and serve submissions on 8 June 2016, those submissions replying to the unparticularised grounds as set out in the application for judicial review. 

7. On the hearing of this matter this day, the Applicant was asked whether he had translated to him the First Respondent’s written submissions.  He indicated that he had read them in part, but had not had them translated to him.  The matter was stood down so that the interpreter provided by the Court, being an interpreter in the Mandarin and English languages, could interpret the submissions to the Applicant.  When the matter resumed, the Applicant was asked whether he wished to make any oral submissions to the Court in support of his application and/or by way of response to the written submissions of the First Respondent.  The Applicant indicated that he had “nothing much” to say.  The Court then asked the Applicant in simple form why it was that he thought the Tribunal decision was wrong.  The Applicant could not really articulate that beyond the matters raised in his application and he made no relevant submissions on the hearing of the application.  Likewise, when asked whether he wished to say something following the conclusion of the First Respondent’s submissions to the Court, the Applicant had nothing to add. 

8. The Court has otherwise before it the Applicant’s initiating application; the First Respondent’s submissions; the evidence contained in the Court Book filed on 20 April 2016 (a copy of which the Applicant had with him) and the First Respondent’s folder of authorities. 

Background

1. The Applicant was born in Fuqing, in Fujian Province, China on 13 February 1989.  According to his protection visa application, he resided in Fuqing City in Fujian Province from February 1989 to July 2007.  He completed 14 years education and has a diploma in hospitality management.  He claimed to be fluent in English and Chinese.  He described his ethnicity as Han and his religion as Christian.  He arrived in Australia on 3 July 2007 on a passport issued in China as the holder of a student (subclass 571) visa. 

2. On 9 October 2008, the Applicant was granted a student (vocational education and training sector) (subclass 572) visa which expired on 11 August 2010.  Thereafter, the Applicant became an unlawful non-citizen. 

3. On 19 April 2013, the Applicant lodged an application for a protection visa.  The application was supported by an undated written statement from the Applicant.  That statement was as follows:-

   “I am an overseas student from the Fujian countryside.  My family is a family of Christians who joined the family church.  Our church belongs to the Local Church.  I was baptised under my parents’ direction when I was 10 years old.  My parents have been serving the church for many years.  They have experienced much happiness and sufferings in those years.  In 2000, my father was warned by the government twice because he organised the family church gatherings.  He was put into labour reformation for six months.  However, my father did not give up his belief because of it.  In the summer holiday of my second year of junior high school, I was detained by the local police for one day because of my involvement in the out-of-town missionary activities with the church prayer group.  Then the police informed my school to bail me out.  I was criticised and warned by the school.  From then on, I dared not to go to the church activities any more.

   In 2007, I came to Australia to study but I could not find the Local Church here. Even though I have looked for it in other churches, the search ended with no result.  I could not adapt those churches so I did not continue.  Then I heard that I could join the church gathering in China through web camera, so I have kept my spiritual communication with the Local Church in such way.  I have also witnessed the baptism of my 2 hometown-mates, and I prayed for them.

   I have seen Brother Changshou Li’s preaching video online in Australia, which is unavailable in China.  My church in China longed for gospels, so I used the chance of going back to visit my family in 2009 to bring back some CDs with preaching material, which was very popular with the folks.  In 2010, I brought back some new preaching materials when I was visiting my family. I also joined their gatherings. Every time when we had the gathering, we had to make sure we were in secret to avoid being reported. 

   My mother has not always been well, but her spirit and body has improved a lot through her church life.  My mother runs a small business and she donates part of the income to serve the Lord, and as the fund for missionaries. But she has been arrested twice when she was preaching out of town, each time fined and detained. In 2011, my parents were detained for 3 months because of missionary acts.  Upon release, my parents tried to appeal to the government but yielded no result, so they united several villagers with the family church to launch a mass appeal. The incident attracted much attention and the police arrested many people. So I told my parents an overseas web address (Boxun site) on which they could reveal the truth about persecution.  To my surprise, the police once came to our house to search the family computer.  My parents’ contact with the outside world was found and I was exposed. To control my parents, the police restricted my parents to our house. All the family calls and computer are monitored.  I could only hear from them through verbal messages.

   I worry about my parents but I dare not to contact my family.  On New Year Eve of 2012, my parents escaped our hometown while the guards watching them went home for New Year. They then had a relative brought a verbal message to me saying they had skipped town and I should never go back, nor should I contact them. 

   I have found the Local Church in Australia recently and joined their gatherings. I now find myself have a better understanding to God and more compassionate to my religion especially after I jointed the Local Church in Australia so I reserved (sic) baptism again.  I see the church as my home and I hope to stay with my current church and evangelize forever. Because of family financial difficulties, I have lost the financial ability to continue my study since 2010. I wish to finish my study and become a useful member of the society. But I could not go back as there is no place for me there.  However, it is very difficult for me to live in Australia without a legal identity.  My family is a victim of the Local Church so I dare not to go back.  I hope that Australian government could spare me a path of living so that I could go back to school and hold on to my belief.”

4. On 31 January 2014, a delegate of the Minister refused to grant the Applicant a protection visa.  The delegate did not find the Applicant to be a credible witness.

5. On 27 February 2014, the Applicant applied to the Tribunal for review of the delegate’s decision. 

6. On 19 June 2014, the Tribunal conducted a hearing at which the Applicant gave evidence with the assistance of an interpreter.  The hearing was adjourned for a further hearing. The hearing was resumed on 11 September 2015. The Applicant again appeared and gave evidence with the assistance of an interpreter.  As the Tribunal member that attended the first hearing was no longer available, a different member took over the review.

7. On 23 October 2015, the Tribunal notified the Applicant of its decision, made 22 October 2015.  That decision was to affirm the decision not to grant the Applicant a protection visa.

The Tribunal decision

1. In assessing the Applicant’s claim, the Tribunal was required to consider whether the Applicant held the religious belief or adhered to the Local Church as he claimed.[1]

   [1] MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80, 47 (North, Bromberg, and Mortimer JJ)

2. The principles to be applied in relation to the questioning of an Applicant about their religious beliefs was set out by Jacobson J in Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159 as follows:-

   “7First, where an Applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at 45.

   8Second, if the Tribunal questions the Applicant about his or her beliefs, it is permissible for it to evaluate the Applicant’s answers against probative material which evinces the doctrines of the religion.  The weight to be given to the evaluation will ordinarily be a matter for the Tribunal:  Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [38] (SZLSP).

   9Third, where the Tribunal rejects an Applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the Applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].

   10Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the Applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the Applicant’s credit and the material upon which it relied to make that assessment.”

3. The Tribunal adopted these principles.  In paragraphs 26 through to 29 of the Statement of Decision and Reasons (‘the Decision Record’) the Tribunal, by reference to probative material containing information about the Local Church, as set out in the Decision Record, questioned the Applicant’s evidence regarding the Local Church and found it to be unconvincing and inconsistent.  The inconsistencies were set out in paragraphs 32 to 36 inclusive of the Decision Record, with the Tribunal noting that the Applicant had embellished aspects of his claim in an effort to bolster his case, in particular, in relation to the Applicant’s delay in raising claims regarding his parents’ detention and the problems his mother allegedly experienced in running her business. The Tribunal did not accept that Chinese authorities had ever detained the Applicant or his parents.  The Tribunal considered the Applicant’s evidence in this regard to be varying and inconsistent. The Tribunal questioned the Applicant’s knowledge concerning the central principles of the Local Church, the significance of the Bible and the practice of the Local Church, and generally about things Jesus has said.  The Tribunal found the Applicant’s evidence not to be consistent with that of a person who allegedly had been attending the Local Church since childhood. The Tribunal found the Applicant demonstrated little familiarity with an Old Testament passage cited by the Applicant during the hearing, which led the Tribunal to seriously doubt the Applicant’s claims regarding his regular reading of the Bible and also his religious beliefs. 

4. The Tribunal’s findings were rational and proportionate.  The Tribunal had the Applicant’s evidence and relevant information about the Local Church before it on which to base the conclusions that it reached.  Furthermore, as submitted by Counsel for the First Respondent, the Tribunal’s finding that it was not satisfied that the Applicant was a follower of the Local Church in China was based on more than simply the answers the Applicant provided to the Tribunal’s questions about the religion.  The Tribunal highlighted numerous inconsistencies in the Applicant’s evidence, as well as the five year delay between when the Applicant arrived in Australia and when he began participating in Local Church activities, as contributing to its conclusion that the Applicant was not an adherent of the Local Church. 

5. The Tribunal, in paragraph 41 of its Decision Record recorded that it placed weight on the Applicant’s delay in applying for a protection visa and found that raised further doubt about the genuineness of his claims.  The Applicant resided in Australia unlawfully from August 2010 (when his student visa ceased) until April 2013 before seeking a protection visa.  The Tribunal said:-

   “41. …The Tribunal does not accept that the Applicant was unaware of the existence of protection visas or the fact that he was eligible to apply for this visa, as he claimed in the hearing.  Again the Tribunal refers to the large Chinese community in Melbourne and the availability of such information within that group regarding the existence of protection visas or alternatively access to advice from migration agents.  The Tribunal notes the Applicant’s evidence that he did seek advice from a migration agent but did not inform this person of the fact he was unlawful or about his alleged religious beliefs and fears related to it.  His evidence was that he only became aware of protection visas after joining the Local Church in Australia and he was advised by the brothers and sisters.  The Tribunal finds considering all the information before it, that the Applicant’s delay in applying for a protection visa raises serious concerns about the genuineness of his fear. 

   42.The Tribunal finds the deficiencies and inconsistencies in the Applicant’s evidence as discussed above, together with his delay in applying for a protection visa, leads it to conclude that the Applicant is not an adherent of the Local Church or that his parents are members of the Local Church in China.  It does not accept that either the Applicant or his parents have participated in any activities associated with the Local Church in China, including organising gatherings at their home, engaging in missionary activities or preaching.”

6. The Tribunal further did not accept that the Applicant had any genuine interest in engaging in Local Church activities in China. It did not accept that upon his return to China, he would worship at a Local Church or engage in any activities or practices associated with the Local Church. It also did not accept that the Applicant would be perceived as a genuine Local Church adherent based on his activities in Australia. On the basis of its findings, the Tribunal was not satisfied there was a real chance the Applicant would suffer serious harm if returned to China because of his membership of the Local Church. The Tribunal made the same findings in assessing the claims of the application in relation to the complementary protection provisions in s.36(2)(aa) of the Act, to which s.91R(3) of the Act did not apply.

The Tribunal’s assessment of the Applicant’s religious activities in Australia

1. Section 91R of the Act was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No 135, 2014), which commenced on 18 April 2015. However, this amendment applied to visa applications made on or after 18 April 2015. As the Applicant applied for a protection visa before this date, s.91R applied to the assessment of his application.

2. Section 91R(3) of the Act relevantly stated:-

   “(3) For the purposes of the application of this Act and the regulations to a particular person:

   (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

3. The Tribunal considered the Applicant’s religious activities in Australia as set out in various paragraphs of its Decision Record, and made a number of findings in relation to this aspect of the Applicant’s claim.  The Tribunal said at paragraph 30 of the Decision Record:-

   “30. While the Tribunal accepts that the Applicant subsequently became a member of the Local Church in late December 2012 (also being baptised a short time later in January 2013), a few months before he lodged his protection visa application, as confirmed in the letter he provided from a member of the Church in Melbourne, the Tribunal finds that the timing of the Applicant’s actions in joining the Local Church in Australia and being baptised raises concerns that it was done solely for the purpose of strengthening his claims for protection.  Therefore, for the purposes of s.36(2)(a), the Tribunal has disregarded the Applicant’s conduct in Australia pursuant to s.91R(3).”

4. The Court accepts the submissions of counsel for the First Respondent that the Tribunal correctly applied the law as set out in s.91R(3) of the Act. Further, the Tribunal made additional and alternative findings that the Applicant’s activities in Australia did not give rise to a real chance that the Applicant would suffer serious harm upon return to China.

Consideration

1. The application of the Applicant contains a generalised statement that the Tribunal’s conclusions regarding his credibility are unacceptable.  No grounds are particularised by the Applicant, nor were any addressed in oral submissions made this day.

2. The Tribunal’s findings regarding the Applicant’s credibility were open to it on the evidence before it.  The reasons provide a rational basis for those credibility findings.  Whilst the Court acknowledges that credit findings can be challenged in an application of this sort in a limited category of case, there is nothing before the Court to suggest a challenge on that basis could be successful. The Applicant was afforded procedural fairness. There is no unreasonableness or illogicality attending the decision and no jurisdictional error.[2]

   [2] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, 37

3. Each of the claims made by the Applicant was considered by the Tribunal. The findings made by the Tribunal were open to it on the evidence before it.

4. No jurisdictional error attends the decision of the Tribunal. The application is dismissed and costs follow that event. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  18 May 2017