CRI15 v Minister for Immigration

[2017] FCCA 2118

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRI15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2118

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Application for judicial review of a decision of the Administrative Decision Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the Applicant’s claimed fear of harm in China for religious reasons – Administrative Appeals Tribunal rejected some aspects of the claims for protection and fear of harm and was not satisfied that the practice by the Applicant of her religion if she returned to China would result in her facing significant harm – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 417

Cases cited:

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant: CRI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3384 of 2015

Judgment of: Judge Dowdy

Hearing date: 2 June 2016

Date of Last Submission: 21 September 2016

Delivered at: Sydney

Delivered on: 6 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr J Pinder

Solicitors for the Respondents: Minter Ellison Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 14 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3384 of 2015

CRI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a female citizen of China aged 47 years, having been born on 20 February 1970 in the Fujian Province.

2. By Application filed in this Court on 15 January 2016 she seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Refugee Review Tribunal) (Tribunal) dated 20 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 9 May 2014 refusing to grant to her a Protection (Class XA) visa (Protection visa).

3. The Applicant entered Australia on 8 January 2008 travelling on her Chinese passport and holding a valid Student Guardian (TU 580) visa.

4. The Applicant then lodged her first Protection visa application on 16 April 2009 with her son, born on 20 April 1991, included as a member of the Applicant’s family unit. A Delegate refused this application for a Protection visa on 15 July 2009. The Tribunal affirmed the Delegate’s decision on 31 December 2009 and an application for judicial review of the Tribunal’s decision was dismissed by the Federal Magistrates Court on 3 September 2010.

5. The Applicant then sought Ministerial Intervention on 5 October 2010 under s.417 of the Migration Act 1958 (Cth) (the Act). However, on 28 January 2011 the Minister decided not to exercise his power with respect to the request for his intervention. The Applicant’s bridging visa then ceased on 25 February 2011 and the Applicant remained in Australia unlawfully.

6. Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Act and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, the Applicant on 22 December 2013 again applied for a Protection visa. The Applicant’s son was again included as a member of her family unit without making any specific claims for protection in his own right.

Claims for Protection

1. The Applicant’s claims appear to have developed and changed since her first Protection visa application was lodged. However, her core claims were to the effect that she was born into a Christian family in China and is herself a strong follower of the Christian faith. She was married in February 1988 to her current husband who remains in China with her younger son and her eldest son resides with her in Australia. In her Protection visa application she claimed to fear that on return to China she would be harmed for reasons of her Christian religion.

Grounds and Criteria for the Granting of a Protection Visa

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 6 May 2014.

2. The Delegate only had the jurisdiction to consider the Protection visa application under the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). However, in the result the Delegate considered the Applicant’s Protection visa application under both the Refugees Convention criterion and the complementary protection criterion but was not satisfied that Australia had protection obligations to the Applicant under either criteria and refused to grant the Applicant a Protection visa.

3. The Delegate in her Decision Record considered all of the claims made by the Applicant since her first Protection visa application, including the claim that some time in 2007 the Applicant was singing very loudly at a Sunday church congregation when the police handcuffed her and she was taken to a police station where she was questioned and held in a cell from 7.30pm until release the next morning. The Delegate also noted that in her interview with the Applicant on 6 May 2014 she had claimed that the Chinese authorities had “designated” land owned by the Applicant, over which church members had constructed a 1km road allowing better access to the church which the Applicant regularly attended. When construction of the road finished sometime in 2006 the church members gathered and erected a temporary Cross to mark their gathering. After designation of the land owned by the Applicant the church members were unable to meet because the congregation was harassed by local village members. The Applicant claimed that she continued to fight for her right to her land but that she repeatedly came into conflict with members of the community who were supported by local Chinese government officials and she began to fear for her life. If she returned to China she would continue to fight for her right to her land and for the right of her church to practise its faith.

4. In the result the Delegate did not accept as credible any of the Applicant’s claims of past harm in China, including her alleged experiences of detention, her brother’s arrest, harassment of her husband, harassment by members of the community or that she was ever prevented from practising her Christian faith for any of these reasons. The Delegate did not accept that the Applicant genuinely feared harm for reasons of her being a Christian and took into account the Applicant’s delay from her arrival in Australia on 8 January 2008 on her Student Guardian visa until 16 April 2009 when she lodged her first Protection visa application.

5. Accordingly, the Delegate found that Australia did not have protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and refused to grant a Protection visa to her.

6. I note that on 18 May 2014 the eldest son of the Applicant withdrew his Protection visa application as a dependent of the Applicant.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 2 June 2014 for merits review of the Delegate’s decision. She appeared on 21 April 2015 before the Tribunal to give evidence and present arguments and again on 4 September 2015, at each hearing with the assistance of an interpreter in the Mandarin and English languages.

2. The Tribunal correctly proceeded on the basis that its jurisdiction in considering the application for a Protection visa was limited to the complementary protection criterion: SZVCH at [44] per Kenny, Siopis and Besanko JJ and [113]-[114] per Mortimer J. It therefore recorded at [5] of its Decision Record that the issue in the case was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there was a real risk that she would suffer significant harm.

3. At [8]-[9] of its Decision Record the Tribunal recorded that the Applicant claimed that she was a farmer who was in fear of practising her religious beliefs in China, in fear of claiming her right to access her property and in fear of mistreatment if she returned to China. She explained to the Tribunal that adherents of the village church had collected money to build a road to access the house church and a Cross was erected which allegedly offended neighbours in the village who had different faiths to Christianity. The Tribunal recorded that the Applicant claimed that after construction of the road granting access to the church it was demolished and the Chinese authorities took the Applicant’s land without consideration. The Applicant claimed that if removed to China she would continue to practise the Christian faith and would suffer harm and mistreatment as a result. She would claim her right to the land taken by her neighbour and rebuild the road to access the church and would therefore be harmed by the villagers. She claimed that she would not be protected by the Chinese authorities because they collude with the villagers.

4. From [11]-[51] of its Decision Record the Tribunal recorded the claims for protection as made by the Applicant in her first Protection visa application, an interview with the Delegate on 6 May 2014 and the hearings before the Tribunal on 21 April 2015 and 4 September 2015.

5. At [50]-[51] of its Decision Record the Tribunal referred to its letter of 7 September 2015 sent after the second Tribunal hearing and which invited the Applicant to comment upon certain information and omissions in evidence given by the Applicant which might cause the Tribunal to find that the Applicant had fabricated her evidence and to the Applicant’s response to the Tribunal’s letter sent by her solicitor to the Tribunal on 21 September 2015.

6. At [52]-[71] of its Decision Record the Tribunal recorded its consideration of country information relating to the practice of Christianity in China.

7. At [74]-[76] the Tribunal recorded the Applicant’s claims of fearing significant harm in China in general terms and then turned to deal with her specific claims.   

8. At [77]-[88] it considered her claims relating to her practice of Christianity in China and accepted that the Applicant was from a Christian family and practised her faith in China in an informal house gathering setting and context. It also accepted as possible and plausible that her father was detained for his religious beliefs many decades ago but noted that the Chinese Government’s attitude to Christianity and religious practice generally had altered significantly over the years. At [83] the Tribunal recorded that it did not accept that the Applicant had herself experienced past harm as a result of her religious practice in China and specifically did not accept that she was taken away by police in 2007 as she had claimed.

9. At [89]-[91] of its Decision Record the Tribunal dealt with the Applicant’s claims about the display of a Cross on her house church and the blocking of access to the road to the church. In this respect the Tribunal found that the Applicant had fabricated her claim and did not accept that the Cross had been erected on the house church or that her neighbours had blocked access to the road leading to the church.

10. At [92]-[94] the Tribunal dealt with the Applicant’s claim in writing that there had been an unlawful appropriation in connection with the access road to the house church, as well as the further claim in oral evidence to the Tribunal that her neighbours had now forced her husband to sell their house and that it had been demolished, with a new building constructed in its place. The Tribunal recorded that the Applicant said that her husband had received RMB 100,000 in compensation for the sale of the house. The Tribunal noted that the Applicant did not claim that the house had been appropriated by actions of the Chinese Government. In the result it did not accept that the Applicant would take any action to get her house or land back or that she had any recourse to do so.

11. At [95]-[96] of its Decision Record the Tribunal accepted that the Applicant practised Christianity in Australia and has been attending church services here.

12. From [97]-[105] the Tribunal considered the Applicant’s claims of fear of future harm on the basis of religious activities and for any other reason. It accepted that she would seek to practise her faith as a Christian in China but did not accept that she would evangelise as part of the practice of her Christian faith in China. It accepted country information that religion in China can be practised within state-sanctioned boundaries as long as such practices do not challenge the interests or authority of the Chinese Government. At [102] the Tribunal stated that it had no information, including country information, to indicate that the Applicant’s religious practice upon return to China would be subject to adverse attention on the basis of any of her claimed fears. At [103] the Tribunal stated that the weight of available independent country information did not support a finding that there were substantial grounds for believing that there was a real risk to the Applicant, taking into account her religious commitment and practice, of facing significant harm in China for the reasons of practising her religion.

13. At [104] the Tribunal found that it was not satisfied that the Applicant would face future trouble or harm from her neighbours or villagers if she returned to her previous area of living in China and that it was not satisfied that there were substantial grounds for believing that there was a real risk that the Applicant would face significant harm in China from her neighbours or local villagers for reasons of her religion or for any other reason.

14. At [105] the Tribunal stated that it did not accept the Applicant's claim that she would be 'unable to survive' if she returned to China as she could not earn enough money and had no home. It pointed out that she has a husband and son in China and that she had referred to other relatives with whom they had been staying and it did not accept that she would be without any familial support on her return to China. In any event, the Tribunal did not accept that unemployment, financial hardship or inability to obtain adequate housing amounted to significant harm for the purposes of s.36(2)(aa) of the Act.

15. Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the Applicant a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds of the Application filed in this Court are as follows:

   1.      The Tribunal erred in making a finding without supported evidence. The Tribunal (at paragraph 104) failed in providing the applicant will not claim the land appropriated.

   2.      The Tribunal failed to make an obvious enquiry, namely as to the details of the erecting cross the house church.

   3.      The Tribunal took into account an irrelevant matter, namely speculation as to the applicant’s future harm in China when the applicant’s return in light of the applicant’s participation of Church services in Australia.

   4.      The Tribunal failed to consider a claim that denial of public religious worship was persecutory to the applicant. The Tribunal failed in making a finding that the applicant had not any other incidents of harm or threats experienced by her husband or other family since she has been in Australia as they have been practicing Christianity covertly. [errors in original]

Consideration

Ground 1

1. This Ground attacks [104] of the Tribunal’s Decision Record in which the Tribunal found that the Applicant would not face future trouble or harm from her neighbours or villagers if she were to return to the area in which she previously lived in China and she would not seek to reclaim her land in China. The ground asserts that the Tribunal made a finding at [104] which was 'without supported evidence'.

2. The claim which the Tribunal rejected in [104] was considered and evaluated at [92]-[94] of the Decision Record: see [24] above.

3. At [94] the Tribunal, on what it described as the limited evidence before it, was prepared to accept that the Applicant’s husband had sold the family home and received RMB 100,000 and the home had now been demolished. However, the Tribunal also recorded that when it tried to explore the Applicant’s claim that if she went back to China she would fight to get her house and land back, the Applicant had been unable to provide any more detail about how and to whom the house was sold and whether or how she would be able to fight to get it back.

4. Paragraph [94] of the Decision Record concluded as follows:

   The Tribunal finds her claim that she will fight to get her house and land back is vague and lacking in detail. If she was genuinely intending to pursue this matter it would expect her to have more information about how the house was sold and what recourse she may have. She indicated in her evidence to the Tribunal that her husband has done nothing about it to date. Given this and the lack of any other detail, the Tribunal does not accept that the applicant will take any action to get her house or land back or that she has any recourse to do so.

5. The substance of [104] repeats the rejection of the Applicant’s claim considered at [92]-[94] and rejected at [94] of the Decision Record.

6. In my view this Ground essentially seeks an impermissible merits review of the Tribunal’s finding in this regard and does not establish jurisdictional error.

Ground 2

1. In my view there was no failure by the Tribunal to properly consider the Applicant’s claims about the erection of a Cross.

2. The Applicant had first referred to the erection of the Cross in section 47 of her Protection visa application and its erection was again recorded as a claim made by the Applicant by the Delegate in her Decision Record of 9 May 2014: see Court Book 88.

3. Then, by its letter of 7 September 2015, noted in [19] above, the Tribunal invited comment and response from the Applicant specifically in relation to the erection of the Cross: see Court Book 159 - 160. The Applicant did comment and respond in paragraph 2 of her Statutory Declaration of 16 September 2015: see Court Book 163.

4. At [78], [89]-[91] and [102] of its Decision Record the Tribunal referred to and considered the evidence relating to the existence of the Cross but at [91] rejected her claims in this regard and found them to be fabricated for the reasons there stated, which in my view cannot be regarded as “arbitrary”, “irrational” or “lacking in evident or intelligible justification”.

5. In short, in my view the Tribunal fully and amply considered the Applicant’s claims in relation to the erection and existence of the Cross and this Ground also fails to establish any jurisdictional error.

Ground 3

1. This Ground asserts that the Tribunal took into account an irrelevant matter, apparently being that the Tribunal speculated as to whether the Applicant would face significant harm in China on the basis of her practice of the Christian religion by taking into account her participation in Christian church services in Australia.

2. In my view this Ground also fails. The Tribunal was required to consider whether the Applicant satisfied the complementary protection criterion in circumstances where the Applicant claimed to face harm in China by reason of her Christian religious beliefs and activities. In these circumstances it was logical, appropriate and probative for the Tribunal to consider the nature of her religious activities in Australia in assessing, at the very least, the credibility of her claim to be a Christian and whether or not it was likely that she would continue her practice of the Christian religion if she returned to China.

3. In this regard the Tribunal found in the Applicant’s favour. As noted at [25] above the Tribunal at [95]-[96] of its Decision Record accepted that the Applicant continues to be a Christian in Australia and had been attending church services here. Then at [97] it accepted that the Applicant came from a Christian family in China and that she had continued to practise Christianity in Australia and that she would seek to continue to practise her faith as a Christian in China.

4. In my view the Tribunal, in considering the Applicant’s participation in Church services in Australia, did not embark on the consideration of an irrelevant matter and this Ground also fails to establish jurisdictional error.

Ground 4

1. This Ground appears to make two assertions, the first being that the Tribunal failed to consider a claim that denial of public religious worship was persecutory to the applicant.

2. However, such to me does not appear to be the case. The Tribunal considered the Applicant’s claims relating to her practice of Christianity in China in detail. It then stated at [100] of its Decision Record that it had “given careful consideration to the independent information… about Christians in China and treatment of Christians in Fujian province in particular”. The independent information referred to  here was that summarized in detail at [52]-[71] of its Decision Record and  which included a reference at [52] to the Pew Research Centre in 2012 estimating that there were 68,000,000 Protestant Christians in China.

3. Then at [103] of its Decision Record the Tribunal considered and evaluated the weight of available independent country information, to which it had referred earlier in its Decision Record, as not supporting a finding that there were substantial grounds for believing that there was a real risk that the Applicant would face significant harm in China on account of her practising the Christian religion.

4. Then at [106] the Tribunal concluded that it was not satisfied there was a real risk that the Applicant would suffer significant harm because of her Christian beliefs, or for any other reason.

5. In other words, in my view the Tribunal effectively found that the Applicant would not be denied the right to publicly practise her faith as a Christian in China and would not suffer from persecutory conduct in that regard.

6. The second assertion made by this Ground seems to be that the Tribunal erred in having regard to the fact that the Applicant had not claimed that her husband or other family members in China had suffered from any other incidents of harm or threats over and above those claims which the Tribunal had rejected.

7. This allegation appears to relate to the Tribunal's statement at [102] of the Decision Record that the Applicant:

   …had not indicated any other incidents of harm or threats experienced by her husband or other family since she has been in Australia.

8. The Tribunal was required to consider the risk of significant harm to the Applicant if she returned to China on the basis of the claims of fear which she had made. In evaluating the likelihood of significant harm there was nothing illogical or unreasonable in the Tribunal taking into account whether or not the Applicant had actually claimed any recent incidents or threats of a harmful nature experienced by her husband or family as a result of their own religious practice back in China.

9. Neither part of Ground 4 establishes jurisdictional error by the Tribunal.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  6 September 2017