CJF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 101

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CJF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 101

File number(s):	SYG 1702 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	30 September 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for Protection Visas – where the Tribunal made adverse credibility findings – where the applicants’ submissions invited in impermissible merits review – no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 5AAA, 36(2)(a), 36(2)(aa), 424A, 424AA, 476
Division:	Division 2 General Federal Law
Number of paragraphs:	72
Date of hearing:	3 August 2020
Place:	Sydney
Solicitor for the applicant:	First applicant, in person
Solicitor for the respondent:	Ms M Kelly, Sparke Helmore

ORDERS

SYG 1702 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CJF17

First Applicant

CJG17

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	30 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The first applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

1. This is an application for a constitutional writ within the Court of jurisdiction 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 12 May 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Protection Visas (“the Protection Visas”). 

   BACKGROUND

2. The first applicant is the mother of the male second applicant, who is an infant and in respect of whom a Registrar of the Court made litigation guardian orders on 7 September 2017.

3. The applicants are citizens of China and their claims were assessed against that country.

4. In summary, the applicant claimed to fear harm by reason of her involvement in Yi Guan Dao. 

5. On 16 September 2007, the first applicant arrived in Australia as a holder of a student visa, which was valid until 15 March 2010. The first applicant then remained an unlawful non-citizen from 16 March 2010 until 19 August 2014, when she applied for the Protection Visas.

   THE DELEGATE’S DECISION

6. On 21 July 2015, the delegate refused the grant of the Protection Visas.

7. The delegate found that the first applicant was a person willing to take whatever measures necessary to strengthen her case. The delegate found that the first applicant had planned her application over a significant period of time, and had attempted to fill gaps and inconsistencies in her behaviour and lifestyle. The delegate also found that the evidence of Mr Fu confirms that view of the first applicant’s actions.

8. The delegate found that the first applicant had displayed little knowledge of Yi Guan Dao, and only a superficial understanding of the practice. The delegate found that the applicant had attended a temple as part of her strategy, to establish a basis for her Protection Visa claim.

9. The delegate found that the first applicant had fabricated the whole of her claims for the purpose of supporting her Protection Visa application. The delegate found that the first applicant was not a witness of truth and that her claims were not credible.

   BEFORE THE TRIBUNAL

10. On 10 August 2015, the first applicant applied to the Tribunal for review. The applicant was invited to and attended two hearings before the Tribunal, being 24 November 2016 and 8 May 2017, to give evidence and present arguments.

11. The Tribunal identified the background to the review application and the material provided by the first applicant in support of her claims. The Tribunal also referred to the evidence given by Mr Fu.

12. The Tribunal engaged, in detail, with the first applicant’s claims and evidence since she arrived in Australia, and her explanation advanced for abandoning her studies. The Tribunal also took into account the substantial delay in the application for the Protection Visas, and rejected the first applicant’s explanation for that delay. The Tribunal took that delay into account in the making of adverse credibility findings.

13. The Tribunal referred to country information in the first applicant’s claims, in relation to her grandparents allegedly being practitioners of Yi Guan Dao in China, and the existence of a secret family temple at a particular home. The Tribunal raised with the first applicant that she had not suffered any harm before she left China, for reasons of her claimed Yi Guan Dao practice. The first applicant agreed, but asserted that her grandparents had been arrested and detained in 1983.

14. At the second hearing, the first applicant claimed that there was a crackdown in 2014, at which a particular relative and a classmate were arrested and badly beaten, and that she could not contact those persons again. The Tribunal referred to raising with the first applicant why her evidence had changed in relation to the contact with the friend. The Tribunal did not accept the explanation advanced by the first applicant, and found that it indicates that the first applicant has not given a truthful account in relation to the relative or friend arrested and detained in 2014.

15. The Tribunal did not accept that the first applicant was a Yi Guan Dao follower in China, or that her parents or grandparents were followers who suffered harm for reason of the Yi Guan Dao practice. In that regard, the Tribunal identified that the first applicant was not able to satisfactorily describe how she and her family practiced Yi Guan Dao in China. The Tribunal identified the inconsistency in relation to her evidence as to where they attended. The Tribunal identified that the first applicant was not able to explain the conflict and the inconsistent evidence that she had given in relation to her friend. The Tribunal also identified the inconsistency in relation to the frequency of the first applicant’s claimed attendance at a particular temple. The Tribunal did not accept that the first applicant attended a family temple, either at her own family’s temple, or at some other person’s temple.

16. The Tribunal referred to the first applicant’s activities in Australia, and that she had attended a Mr Fu’s family temple, and that Mr Fu is a master of Yi Guan Dao. The Tribunal found that the first applicant had attended the temple to strengthen her claims for protection, and did not accept that she was a genuine adherent to that belief.

17. The Tribunal referred to the first applicant’s claim that she identified the temple in 2006, and that she was initiated at the temple in 2014 and has become a Yi Guan Dao follower. The Tribunal identified the first applicant’s lack of knowledge in relation to the organiser of the temple, and her knowledge in relation to the practice of Yi Guan Dao.

18. The Tribunal referred to the first applicant’s evidence, and that of Mr Fu, about her involvement in Yi Guan Dao in Australia. The Tribunal also referred to the letter provided by Mr Fu, dated 12 November 2016.

19. The Tribunal referred to the first applicant’s evidence that she had not attended any temples in Melbourne, and referred to the evidence given by Mr Fu, which the Tribunal found to be somewhat vague and evasive. The Tribunal referred to the evidence of Mr Fu as to when the applicant attended the temple, as well as the different locations at which he had operated the temple. The Tribunal did accept that the first applicant attended Mr Fu’s temple at two locations.

20. The Tribunal did not accept that the first applicant attended Mr Fu’s temple from 2009 onwards. The Tribunal found that she first started attending Mr Fu’s temple in 2014. The Tribunal referred to the vague nature of Mr Fu’s evidence, and the first applicant’s inability to identify the temple organiser at the interview in July 2015, and that she had made no mention of Mr Fu’s temple at Lidcombe. The Tribunal also identified that Mr Fu’s evidence had changed from the time when he spoke to the delegate to the time of the second hearing before the Tribunal. The Tribunal found Mr Fu’s evidence to be unreliable, and placed no weight on his recall of when the applicant first started attending, or his opinion as to whether she is a genuine follower.

21. The Tribunal accepted that the applicants have been given Yi Guan Dao initiation cards, which were produced by Mr Fu in January of 2014. The Tribunal did not accept that there was an initiation of the first applicant in China in 2006 or in Australia in 2009.

22. The Tribunal identified the first applicant’s explanation for the alleged timing of initiation into Yi Guan Dao, and did not accept the explanation. The Tribunal found that the first applicant had learnt and rehearsed an account of events, but could not recall the age she claims that she was initiated in China because she had not anticipated this question.

23. The Tribunal referred to the inconsistency between the first applicant’s card and her claims as to the timing of initiation. The Tribunal invited the first applicant to comment on the information given by Mr Fu after her interview with the delegate on 13 July 2015. The Tribunal also invited the first applicant to comment on the fact that the initiation cards and the letterhead were produced at the same time, and that the first applicant provided the 2009 date.

24. The Tribunal referred to the first applicant’s explanation for having lost the cards. The Tribunal pointed out the inconsistency in relation to the claimed date of initiation, and suggested that Mr Fu may have been mistaken in relation to the loss of the cards.

25. The Tribunal explored with the first applicant the circumstances surrounding the initiation cards, and raised with her the evidence that she had given at the first Tribunal, being that she had lost all three cards and that Mr Fu had replaced all three on the same occasion. The Tribunal was not able to satisfactorily explain why her evidence regarding the initiation differed from the first hearing to the second hearing.

26. The Tribunal referred to Mr Fu’s evidence at the first tribunal hearing, and the alleged timing of the initiation in 2009. The Tribunal clearly explored with Mr Fu his evidence in relation to that initiation and the replacement cards. The Tribunal referred to Mr Fu’s explanation that the first applicant had told him that she had lost her old card. 

27. The Tribunal did not accept that the first applicant went through any initiation in 2006 or 2009. In that regard, the Tribunal noted that neither the first applicant nor Mr Fu could explain why, if the first applicant had been already initiated in 2006, she would go through an initiation again in 2009.

28. The Tribunal referred to the first applicant’s evidence in the circumstance of the reissue of the card being unsatisfactory. The Tribunal also referred to the evidence of Mr Fu having told the delegate that the first applicant had lost her card at the time he provided a replacement card.

29. The Tribunal referred to the first applicant’s claim that Mr Fu was mistaken in relation to the evidence of providing three replacement cards. The Tribunal also identified a conflict in the first applicant’s evidence, because she did not receive a card in 2009, and found that the applicant first received initiation cards in January 2014. The Tribunal found that Mr Fu’s evidence had been vague and evasive when questioned closely about his recall of when the first applicant was initiated in 2009.

30. The Tribunal did accept that the applicants have produced, by Mr Fu, cards showing an initiation in January 2014. The Tribunal referred to the substantial delay in the applicant’s claim for protection, and did not accept the first applicant’s explanation. The Tribunal found that this was not consistent with the first applicant having a genuine fear of persecution for reasons of her Yi Guan Dao beliefs.

31. The Tribunal explored with the first applicant her explanation for the delay, and did not find the first applicant believable in that regard. The Tribunal found that it is suggested that she had gone to the Yi Guan Dao temple in Sydney just for the purpose of obtaining the Protection Visas. The Tribunal did not accept the first applicant’s assertion that she was not aware of the existence of Protection Visas before August 2014.

32. The Tribunal did not accept that there is a real chance that the first applicant would face harm for reasons of religion or imputed anti-government political opinion if she returns to China now or in the reasonably foreseeable future.

33. The Tribunal did not accept that the first applicant and her parents were Yi Guan Dao practitioners in China, or that her parents and grandparents were mistreated in China. For this reason, the Tribunal did not accept that the first applicant would face a reasonable chance of serious harm for this reason if she returns to China now or in the reasonably foreseeable future.

34. The Tribunal found that the delay by the first applicant is not consistent with the first applicant having a genuine fear of persecution if she returns to China. The Tribunal did not accept that the first applicant’s attendance at Mr Fu’s temple would put her at any risk if she returned to China. The Tribunal took into account country information in that regard.

35. The Tribunal did not accept, firstly, that the first applicant is a Yi Guan Dao adherent or has any genuine interest in its practice, and did not accept that she faces harm for such a reason. The Tribunal found that the first applicant would not seek to practise Yi Guan Dao if she returns to China, because the Tribunal did not accept that she is a genuine Yi Guan Dao follower.

36. The Tribunal found that there is no real evidence that the applicants would face serious harm for reasons of religion or imputed political opinion or for any other convention-related reason if they return to China now or in the reasonably foreseeable future. The Tribunal found that the first applicant does not have a well-founded fear of persecution. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary or foreseeable consequence of the applicants being removed to China, there was a real risk the applicants would suffer significant harm.

37. The Tribunal found that the applicants did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Act. Consequently, the Tribunal affirmed the decision of the delegate under review. 

    BEFORE THE COURT

38. These proceedings were commenced on 1 June 2017.

39. On 29 June 2021, a Registrar of the Court made orders fixing the matter for hearing before this Court on 3 August 2021.

40. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing, and the first applicant confirmed that she understood the explanation given by this Court.

41. The first applicant submitted that she told the truth and that the Tribunal should have accepted her evidence and the evidence of Mr Fu.

42. The Tribunal gave logical and rational reasons for not accepting the credibility of the first applicant, including the very substantial delay and having rejected the first applicant’s explanation for the delay. The inconsistencies to which the Tribunal referred, between the first applicant’s evidence about the timing of her initiation into Yi Guan Dao and the delay, provide a logical and rational reason for the adverse credibility findings. In those circumstances, those adverse credibility findings cannot be said to lack an evident and intelligible justification. The first applicant’s disagreement with the adverse credibility findings does not identify any jurisdictional error.

43. Pursuant to s 5AAA of the Act, it was for the first applicant to provide sufficient evidence to establish her claims. The inconsistencies in relation to the initiation into Yi Guan Dao were not trivial or insignificant. The first applicant’s disagreement with the adverse credibility finding does not identify any jurisdictional error.

44. In substance, the first applicant contended that the evidence that she and Mr Fu had given should have been accepted. The Tribunal was not required to accept, unquestioningly, the evidence given by the first applicant. The first applicant’s submissions otherwise invited this Court to engage in impermissible merits review. Nothing said by the first applicant identified any jurisdictional error.

45. The Court notes that the Tribunal’s reasons reflect the applicant having had, a real and meaningful hearing and the Tribunal had a genuine intellectual engagement with the applicant’s claims and evidence. Further, contrary to the first applicant’s submissions, it is apparent that the Tribunal raised with the first applicant the credibility concerns in relation to the first applicant’s and Mr Fu’s evidence. The findings of the Tribunal were dispositive of the applicant’s claims and open to the Tribunal for the reasons given by the Tribunal as summarised above.

    THE GROUNDS

46. The Grounds in the application are as follows: 

    Ground 1

    1.The tribunal considers my involvement with in Yi Guan Dao in Australia to be nothing more than a means to strengthen my claims. This is completely incorrect. I am genuine and devoted Yi Guan Do practitioner and my practice in Australia is something is ordinary and consistent as it has been for my entire life. I believe the Tribunal has come to a wrong conclusion based on flaws in their process of judgement and I will outline them below.

    Ground 2

    2.The tribunal has showed great concerns regarding the date of my initiation into Yi Guan Dao the tribunal accepts I am a true Yi Guan Dao practitioner as of 2014 as stated on my initiation card. Truthfully, I was initiated back in 2006 in China and also participated in an initiation ceremony in 2009 when I come to Australia. Due to how frequent I was relocating, I had misplaced my initiation card from 2009 and replaced it at the same time my son and husband were initiated. I explained this to the Tribunal and gave evidence from master Fu of the Yi Guan Dao temple to testify that I had joined the temple as early as 2009.

    Ground 3

    3.A reason, or part of a reason, then tribunal has deemed this claim untruthful was fact that I gave inconsistent recounts of these events. The tribunal insists that in the first hearing, I claimed all three of my family members lost our cards and we replaced them together in 2014, however I never claimed my son and my husband lost their cards because they did not have it prior to 2014. I described in detail that I, alone, was initiated prior to 2014 and I, alone, had lost my initiation card and I, alone was getting it replaced at the same time my husband and son were initiated. Perhaps the tribunal member misheard me or misinterpreted my claims. But ultimately, the tribunal changed my claims and have based a judgment off this erred piece of evidence, this is unfair and extremely disadvantageous to me, as the applicant and I do not accept this as an acceptable reason to refute my claims.

    Ground 4

    4.Furthermore, the tribunal has indicated no weight was given to evidence presented by master Fu due to vagueness. Specifically, the tribunal points out that master Fu gave oral evidence of my participation in his Yi Guan Dao temple since 2009 but did not produce any records to support it. However, the tribunal has also indicated elsewhere in the decision record that their decision was influenced by master Fu’s evidence, the tribunal notified me master Fu was also contacted phone after the hearing and gave information that the Tribunal had used to form part of their decision.

    Ground 5

    5.I am unsatisfied with the application of master Fu’s testimony in the decision process of the Tribunal. Firstly, it is very common for Yi Guan Dao temples to not hold records of when its members were initiated. Master Fu gave his oral evidence because it was reality he had experienced. Nevertheless, even if the Tribunal considers master Fu’s testimony to be weak, it is still illegal to assume my initiation date must be 2014 because there is no evidence that suggests master Fu’s testimony is false.

    Ground 6

    6.Secondly, by placing on weight on master Fu’s testimony, then Tribunal indicates master Fu is not a reliable witness to my claims. This being the case, it is completely illogical for the Tribunal to then use parts of master Fu’s testimony as points against my claims. Neither is it logical for the tribunal to use the information provided by master Fu outside of the hearing as evidence against my claims. The fact that the Tribunal only considers master Fu’s evidence when it supports their decision to refute my claims is a clear example of bias. It is completely unfair to me when the tribunal becomes selective with reliability of a witness depending on whether his testimony supports me or not. Furthermore Fu’s problem was vagueness, then the Tribunal should have called him or me to provide clarification. It makes no sense to make assumptions based off master Fu’s evidence without giving him or myself an opportunity to provide clarifications.

    GROUND 1

1. The first Ground identified a disagreement with the Tribunal’s finding as to the first applicant being a genuine Yi Guan Dao practitioner. The Tribunal provided logical and rational reasons in relation to its rejection of the first applicant’s claim, including the inconsistent evidence about initiation into Yi Guan Dao in 2009, the absence of attendance at a temple until being in Sydney, and the very substantial delay in the application for the Protection Visas.

2. The first applicant’s contention that that the Tribunal should come to a different conclusion, in substance, reflects cavilling with the Tribunal’s findings, and seeks impermissible merits review. 

3. The inconsistency in relation to the time of the initiation into Yi Guan Dao and the alleged lost cards and replacement cards provided an evident intelligible justification for the rejection of the evidence of Mr Fu and the first applicant in that regard. 

4. No jurisdictional error is made out by Ground 1. 

   GROUND 2

5. In relation to Ground 2, the first applicant appears to take issue with the Tribunal exploring with her the date of initiation. It was open to the Tribunal to test and explore the first applicant’s evidence. That conduct is 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. On the face of the Tribunal’s reasons, and in particular, the issues raised in the course of the hearings, there is no proper basis to find that the Tribunal did anything other than to approach the review with an open mind reasonably capable of persuasion as to the merits. The first applicant’s assertion as to when the cards and when her initiation into Yi Guan Dao took place, in substance, invite impermissible merits review.

6. No jurisdictional error is made out by Ground 2. 

   GROUND 3

7. In relation to Ground 3, the first applicant correctly identified the inconsistency in her evidence and disagreed with its significance. That again is, in substance, an invitation to engage in merits review.

8. Further, it was not that inconsistency alone that the Tribunal took into account in the adverse credibility findings. The very substantial delay by the first applicant, and the rejection of the first applicant’s explanation for the delay, provide an intelligible and evident justification for the adverse credibility findings. 

9. The first applicant’s disagreement with the adverse findings, and assertion that the adverse findings being unfair, is, in substance, an invitation to engage in impermissible merits review. 

10. There was no obligation upon the Tribunal to put the inconsistencies to the first applicant. Further, it is apparent that the Tribunal did raise with the first applicant, pursuant to s 424AA of the Act, the evidence that had been given by Mr Fu to the Tribunal. There is no information that has been identified to give rise to any basis to find a failure to comply with ss 424A or 424AA of the Act.

11. The first applicant’s disagreement about the evidence she gave about the lost cards was part of the issue before the Tribunal, and in substance, seeks to engage in impermissible merits review.

12. No jurisdictional error is made out by Ground 3.

    GROUND 4

13. In relation to Ground 4, this appears to disagree with the adverse credibility findings in relation to Mr Fu. Those adverse credibility findings were open, for the reasons given by the Minister.  Mr Fu’s attempts to explain the 2009 initiation, and the inconsistencies between his evidence and that of the first applicant, were relevant and logical matters for the Tribunal to take into account.

14. Further, it is not correct to say that the Tribunal gave no weight at all to Mr Fu’s evidence. It was, however, a matter for the Tribunal to make findings in relation to the credibility of the first applicant. Those adverse credibility findings were open to the Tribunal, for the reasons given by the Tribunal as summarised above. 

15. No jurisdictional error is made out by Ground 4. 

    GROUND 5

16. Ground 5 appears to be a further disagreement with the Tribunal’s rejection of the first applicant’s claims in relation to the initiation into Yi Guan Dao. Ground 5 seeks to advance an explanation for the same, inviting impermissible merits review. The first applicant’s expression of dissatisfaction is not a proper ground for review.

17. The Tribunal is not required to possess rebutting evidence before rejecting the credibility of Mr Fu’s evidence. The Tribunal is entitled to rely upon inconsistencies and defects in his evidence in not accepting his account.

18. Accordingly, no jurisdictional error is made out by Ground 5.

    GROUND 6

19. In relation to Ground 6, the first applicant appears, again, to disagree with the Tribunal, engaging in a credit assessment of the first applicant and Mr Fu. This simply invites merits review and does not identify any jurisdictional error. 

20. For the reasons already given, the adverse credibility findings were open to the Tribunal for the reasons it gave. Those reasons included the inconsistency of the first applicant’s evidence and that of Mr Fu in relation to an initiation into Yi Guan Dao in 2009, as well as a very substantial delay in the seeking of an application for the Protection Visas.

21. It was a matter for the Tribunal to determine what evidence to accept, and there is no basis for the assertion of bias. The adverse findings of the Tribunal 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.

22. Further, there is no illogicality in relation to the Tribunal’s reasoning concerning the unsatisfactory evidence of Mr Fu, in relation to the first applicant and her initiation cards. It was open to the Tribunal to find that the evidence was not reliable, and to find that it conflicted with the first applicant’s evidence. It was open to the Tribunal to find that the first applicant had not given a satisfactory explanation as to why she was issued with an initiation card in 2014.

23. For the reasons already given, no conduct has been identified to support an allegation of actual bias. For the reasons already given, the adverse findings of the Tribunal are not conduct that meet the double might test of the fair-minded lay observer test in respect of apprehended bias. On the material before the Court, there is no basis for the assertion of prejudgment. No case of bias or apprehended bias is made out.

24. The proposition that the Tribunal should have invited the first applicant and Mr Fu to give further evidence again, in substance, invites impermissible merits review. It is apparent from the two hearings that the first applicant had a real and meaningful opportunity to give evidence and adduce arguments.

25. No jurisdictional error is made out by Ground 6.

26. Accordingly, the application is dismissed.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:  30 September 2021