CRW15 v Minister for Immigration

[2017] FCCA 2570

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRW15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2570

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to inform the applicant of a certificate issued under s.438 of the Migration Act 1958 (Cth) and its contents – whether the Tribunal erred in failing to give the applicant an opportunity to make submissions on the validity of the certificate and seek a favourable exercise of the Tribunal’s discretion under s.438(3) of the Migration Act 1958 (Cth) – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.438, 440

Cases cited:

Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183
MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081

Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Applicant: CRW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2261 of 2016

Judgment of: Judge Smith

Hearing date: 20 September 2017

Date of Last Submission: 20 September 2017

Delivered at: Sydney

Delivered on: 24 November 2017

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Baker & McKenzie

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 1 August 2016.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 7 October 2014 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2261 of 2016

CRW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on a student visa on 6 January 2008. He married his ex-wife in Australia on 18 February 2009, and was subsequently granted a dependent student visa and a dependent skilled visa in August 2009 and May 2011 respectively. In November 2011, the applicant and his ex-wife separated and finalised their divorce on 19 January 2013. On 23 October 2013, the applicant lodged an application for a protection visa.

Background

1. In February 2012, the applicant began attending a Roman Catholic Church. In May 2012, the applicant returned to China for the second time and met with the two friends who had encouraged him to seek out Catholicism in Australia on his previous visit. The applicant gifted the friends a Bible and informed them of an Australian Chinese Catholic website during this second return visit. After approximately one month, the applicant returned to Australia in June 2012.

2. The applicant lodged an application for a student visa. The delegate of the Minister and Administrative Appeals Tribunal (Tribunal) identify the date of that application as 8 May 2012. On 30 November 2012, a delegate of the Minister refused the application for a student visa. On 13 September 2013, the decision was affirmed by the Migration Review Tribunal (MRT).

3. On 6 October 2013, the applicant claims to have been contacted by one of the friends he had met with in China. The friend said that the computer shop she operated with her husband had been raided by police and that her husband had been arrested for spreading illegal information. The applicant also stated that the friend had informed him that her husband had told the police that it was the applicant who had provided the website and had helped in distributing the illegal information.

4. On 8 October 2013, the applicant further claimed that his father’s home had been raided by police and that his father had been interrogated and threatened with arrest. The applicant subsequently lodged an application for a protection visa.

5. The applicant’s protection visa application was refused by a decision made by a delegate of the Minister on 7 October 2014. On 26 November 2015, the Tribunal made a decision affirming the decision of the delegate. However, by orders made by consent in this Court on 10 March 2016, that decision was set aside and the matter remitted to the Tribunal for consideration according to law. Upon remittal, the Tribunal conducted the review. The Tribunal made its decision on 1 August 2016 affirming the decision of the delegate. The applicant now seeks judicial review of the Tribunal’s decision.

Tribunal’s decision

1. The Tribunal accepted that the applicant had been involved in church activities since February 2012 and had developed an interest in Catholicism. It also accepted that a marriage breakdown could be the basis for why a person “may take solace in religion.” However, the Tribunal did not accept the applicant’s claim that the breakdown of his marriage was the reason behind his conversion to Catholicism. It also did not accept that the applicant delayed his baptism to December 2013 because he did not consider himself ready and that he had excessively sinned. The primary basis for the Tribunal’s finding that the breakdown of the applicant’s marriage was not the reason for his conversion to Catholicism, was its concern regarding the proximity of the applicant’s protection visa application following his unsuccessful student visa application; and the time which had elapsed between the applicant distributing information in China in June 2012, and his friends and father being subject to adverse attention from police in October 2013.

2. The Tribunal did not accept that the applicant did not know about protection visas prior to October 2013 as an explanation for the delay in his lodgement of a protection visa application. It stated that if the applicant had become a genuine Catholic and truly feared returning to China as a result of his faith, he would have lodged an application for a protection visa at the time he lodged an application for a student visa. The Tribunal considered that the applicant’s evidence and timing of his claims raised concerns that his motivation for being baptised was “to embellish his application for a Protection visa.”

3. The applicant claimed that the Chinese authorities were aware of him because his name was on the Bible that he had gifted to his friend and which had been confiscated. The applicant also claimed that whilst being tortured, the friend’s husband admitted that it was the applicant who was responsible for providing the website. The applicant provided to the Tribunal several articles on “restrictions and monitoring of religious activities” by the Chinese authorities in response to the Tribunal’s statement that independent information did not support his claims.

4. The Tribunal accepted that Chinese authorities closely monitored citizens and their internet activity and that underground religions were in fact illegal. However, it found that there was no evidence which supported the claims that persons who practised underground Catholicism in Fujian, or who were in possession of a non-approved Bible were targeted. The Tribunal concluded that the applicant’s claims were not credible and were instead like his reasons for delaying his baptism, a fabrication made to embellish his protection visa application.

5. The Tribunal accepted that the applicant would continue to be involved in an underground Catholic church as opposed to a registered Catholic church upon his return to China. However, it did not accept that the applicant would “‘proselytize’ or evangelize to others upon his return to China” and therefore be the victim of potential “arbitrary and capricious” treatment by the authorities. The Tribunal came to this conclusion on the basis of the applicant’s current involvement in church related activities and the material it considered when determining the applicant’s claims at [8] above. For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa.

Consideration

1. The applicant raises 7 grounds in his amended application. Each ground relates to the certificate the Minister provided the Tribunal under s.438 of the Act (certificate). At the hearing, the applicant did not press grounds 3, 4 and 6, accepting that the Tribunal had not acted on information contained within the certificate. The applicant contends that he was denied procedural fairness by the Tribunal because it failed to inform him of the certificate and its contents. The applicant also contends that he should have been afforded “the opportunity to make submissions on the validity of the certificate” and “seek a favourable exercise of the Tribunal’s discretion” under s.438(3) of the Act.

2. The effect of s.438 of the Act is that, if the Minister has made a certification under s.438(1), the Tribunal may, if the Tribunal thinks it appropriate to do so, having regard to any advice given by the Secretary under sub-section (2), disclose any matter contained in the document, or the information, to the applicant: sub-s.438(3)(b). If the Tribunal does disclose the document, or part of it to an applicant, it must give a direction under s.440 of the Act: s.438(4).

3. The certificate in this case was dated 22 March 2016 and referred to several folios of file number CLF2013/260888. The certificate stated that disclosure of the information in the specified folios would be contrary to the public interest because it contained information “relating to an internal working document and business affairs”.

4. The Minister conceded that the certificate was invalid because an “internal working document” does not provide sufficient basis for public interest immunity: see MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081 at [37].

5. If there was a possibility that the documents the subject of the certificate might have affected the Tribunal’s decision, the Tribunal’s failure to inform the applicant of the certificate and its contents, would have been a failure to afford the applicant procedural fairness: see Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 (Singh).

6. The following passages from the Tribunal’s reasons show that the timing of the applicant’s claims and applications were critical to the Tribunal’s findings:

   25.The Tribunal also found the applicant’s account at the most recent hearing and previously of his reasons for becoming a Catholic to be unpersuasive, and his account during the most recent hearing to be indicative of someone who was reciting a prepared response. The Tribunal considers that the applicant’s explanation for why he became a Catholic after such an extensive period of time in Australia, where he does not claim to previously had anything other than very limited involvement in Catholicism or any other type of Christianity, to be unpersuasive. Although the Tribunal accepts that a marriage breakdown can be traumatic and persons experiencing this may take solace in religion, the Tribunal considers that the timing of the Protection visa application, which was made shortly after the applicant’s application for a Student visa failed before the MRT, combined with evidence indicating that although he had been in China and distributed material in June 2012 it was several months later in October 2013 that his father was purportedly harassed and his friends arrested and only then that he then found out about Protection visas, to raise serious concerns about the applicant’s motivation for applying for a Protection visa. The Tribunal does not accept the applicant did not know about Protection visas and considers that had he genuinely been committed to Catholicism to such an extent that he feared returning to China that he would have sought to lodge an application for protection at an earlier time, rather than pursuing a Student visa application to the Department and the MRT, and then only lodging a Protection visa following the refusal by the MRT.

   26.In the Tribunal’s view, the lodgement of the application in October 2013, rather than at a considerably earlier time, in circumstances where he claims to have become a Catholic in early 2012, as well as the timing of other factors discussed above, raise serious concerns that applicant became involved with the Catholic Church following the breakdown of his marriage because of his inability to remain as a dependent on his wife’s visa and that he commenced fabricating claims for protection in the event that he was unsuccessful in obtaining a further Student visa. As stated above, the Tribunal does not accept his explanation for delaying his baptism until December 2013, given that his evidence indicates he could have been baptised at a considerably earlier time, and considers that the timing of the baptism raises further serious concerns that this was also motivated by his desire, a short time after his application for a Student visa failed, to embellish his application for a Protection visa.

   (Emphasis added)

7. A document that is subject of the certificate and that is in question is entitled “MRT-RRT case summary”. It is a summary by the Department of Immigration (Department) of the details regarding the applicant’s student visa application which was denied on 30 November 2012 by a delegate of the Minister. On the document is the following data entry: “DIAC case lodged:        8/10/12” (emphasis in original). There is no reference to the date of 8 May 2012 anywhere on the document. This raises a possible inconsistency between the date the delegate and Tribunal considered the applicant to have lodged his application for the student visa, and the actual date of when it had taken place. The document also lists the incoming and outgoing correspondence between the Department and the applicant. The last entry is of incoming correspondence to the Department identified as “Return to Sender” which was created on “13/09/13”. This was the same date as outgoing correspondence to the applicant of a notification of refusal.

8. The applicant at the hearing submitted that the Tribunal’s concern that the applicant began developing claims in order to substantiate an application for a protection visa in the event that his student visa was refused, becomes less compelling if the student visa is found to have been lodged on 8 October 2012 as opposed to 8 May 2012. I agree. As mentioned above at [2], the applicant claims to have started attending Church in February 2012 and returned to China in May 2012 where he gifted a Bible and provided an Australian Chinese Catholic website to his friends. If the applicant had lodged his application for a student visa on 8 October 2012, then the timeline of his claims would have begun significantly before he lodged an application for any type of visa.

9. The inconsistency in the date of the lodgement of the applicant’s student visa application raises potential questions over the findings of the Tribunal. If the Tribunal accepted that the student visa was lodged on the later date, it may have led it to be more inclined to believe that the applicant’s conversion to Catholicism was as a result of the breakdown of his marriage, or that the applicant was previously unaware of protection visas when he first began to partake in religious activities.

10. Although it is not the role of this Court to conclusively come to an answer with regards to these potential questions, what it does is highlight that the information in the document entitled “MRT-RRT case summary” was in fact credible, relevant and significant to the applicant’s protection visa application. The Tribunal should therefore have informed the applicant of the certificate and its contents, and afforded him the opportunity to raise the inconsistency in the date of the lodgement of the student visa application at the hearing.

11. I do not consider the “Return to Sender” entry on the document to raise the same level of potential questioning over the reasoning of the Tribunal. It is most likely that the “Return to Sender” entry was incoming correspondence in response to an earlier piece of outgoing correspondence from the Department and not the notification of refusal. In any event, it was the applicant’s own evidence that he “found out in September 2013 that his application for a student visa had been refused.” This was the same month in which the MRT made its decision and so I can find no practical injustice arising from the non-disclosure of this piece of information.

12. The Minister contends that the “MRT-RRT case summary” is not a relevant document as was assumed of the documents by the Full Court of the Federal Court in Singh because the document does not identify anything that the applicant did not already know.

13. The date of 8 May 2012 is only outlined on two occasions in the delegate’s decision record, a decision which was in relation to the applicant’s protection visa application and not his student visa application. The delegate’s decision was also made over 21 months prior to the Tribunal hearing. In addition, the Tribunal identifies the date of 8 May 2012 on only one occasion at [1] of its reasons and nothing in its decision record suggests that this date was raised at the hearing and put to the applicant to respond to.

14. In the circumstances, I do not accept that the inconsistency between the date the delegate and Tribunal identified, and the date entered on the “MRT-RRT case summary” document, to be information the applicant should be taken to have already known. In contrast to Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, the applicant in this case has lost an opportunity to put forward information before the decision-maker in order to advance his visa application and so a practical injustice has arisen. It is not possible to say that the documents subject to the certificate could have had no effect whatsoever on the Tribunal’s decision. The Tribunal’s failure to disclose to the applicant the certificate and its contents therefore constituted a jurisdictional error.

Conclusion

1. There is no reason for which relief ought to be withheld. There will be an order for the issue of writs of certiorari and mandamus.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         24 November 2017