CTM15 v Minister for Immigration
[2018] FCCA 3210
•12 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTM15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3210 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – none of the grounds asserted by the applicant established – no jurisdictional error or procedural unfairness by Administrative Appeals Tribunal – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 438 Migration Regulations 1994 (Cth) |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 |
| Applicant: | CTM15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3449 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 19 April 2016 & 24 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms S. He |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 21 December 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3449 of 2015
| CTM15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of China aged 37 years, having been born on 24 October 1981.
By Application filed in this Court on 21 December 2015 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 17 July 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant applied for a Protection visa on 6 February 2014, some 5½ months after having last arrived in Australia on 21 August 2013.
Prior to deserting his cargo ship in Australia on 21 August 2013, whilst holding a Maritime Cruise (Subclass 988) visa, he had entered Australia as a seaman 13 times between his first arrival in Australia on 16 July 2009 and his last arrival on 21 August 2013.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Applicant’s Claims for Protection
The Applicant’s claims for protection were made in his Statement dated 27 January 2014 forming part of his Protection visa application (Written Statement). He claimed to have been born and grown up in a rural area in China with both of his parents and his uncle practising the Yiguan Dao religion. There was a small temple in his family’s home but the local Government would not allow the setting up of temples or shrines and would often come to the home to disturb any religious activity. However, the Applicant and his uncle continued efforts to set up more Yiguan Dao temples. He sought the protection of the Australian Government out of his desire for freedom of belief and his desire to be a preacher in the future to promote the Yiguan Dao religion.
Decision of Delegate
The Applicant attended an interview with the Delegate on 26 June 2014 and claimed that he feared returning to China because he would be persecuted for his Yiguan Dao religion.
In the result, the Delegate did not find the Applicant’s claims that he had practised the Yiguan Dao religion since he was a child to be credible and was not satisfied that his claimed fear of persecution for practising that religion was well founded or genuine, and that his conduct did not reflect that of a person in genuine need of protection.
The Delegate found that he was not satisfied that the Applicant would be subject to persecution were he to return to China or that there were substantial grounds for believing that there was a real risk that the Applicant would be subject to significant harm were he to return to China.
Accordingly, the Delegate refused to grant a Protection visa to the Applicant as he was not satisfied that Australia had protection obligations under s.36(2)(a) of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) or the complementary protection criterion under s.36(2)(aa) of the Act.
Decision of Tribunal
The Applicant applied to the Tribunal for merits review of the Delegate’s decision on 20 August 2014 and attended a hearing before the Tribunal on 25 November 2015 to give evidence and present arguments. The Applicant gave a copy of the Decision Record of the Delegate to the Tribunal at the time he filed his review application.
At [7] of its Decision Record the Tribunal set out the Applicant’s claims obtained from the file of the Department of the Minister, including the Applicant’s Protection visa application, the Written Statement, the Decision Record of the Delegate, a copy of the recording of the interview between the Delegate and the Applicant on 26 June 2014 to which it had listened and the evidence given by the Applicant at the Tribunal hearing. The Tribunal recorded that the Applicant had told it that if he returned to China he would be arrested and persecuted because he is a believer in the Yiguan Dao religion. The Tribunal recorded that the Applicant claimed that his mother had become physically and mentally tired and had passed away because she could no longer endure the constant questioning and harassment from the authorities in China.
From [14] – [19] the Tribunal recorded its concern about inconsistencies in the Applicant’s evidence as given from time to time, commencing with his Written Statement and up to the evidence given at the Tribunal hearing, which led it to conclude at [20] that these inconsistencies undermined his credibility, claims and evidence.
From [21] – [25] of its Decision Record the Tribunal recorded its consideration of the Applicant’s knowledge of the Yiguan Dao religion and concluded that his inability to provide information concerning the Yiguan Dao religion undermined his claims of involvement with that religion in China and of being genuinely involved with that religion in Australia.
At [26] the Tribunal found that on a number of issues the Applicant gave evidence which was not credible and / or was inconsistent with country information, which it regarded as undermining his credibility, and from [27] – [34] the Tribunal set out its findings on those issues.
At [35] – [36] of its Decision Record the Tribunal dealt with the Applicant’s delay in claiming asylum from the date of his last arrival in Australia on 21 August 2013 until he made his Protection visa application on 6 February 2014.
At [42] the Tribunal expressed its general conclusion as follows:
[42]Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility, as discussed above, lead the Tribunal to conclude that the applicant is not a witness of truth and the accounts of religious persecution, and his fears for the future, on which his protection claims are based, is (sic) false.
At [49] of its Decision Record the Tribunal recorded that it did not accept that the Applicant had any interest in the Yiguan Dao religion or that he was a committed or genuine Yiguan Dao follower and found that the Applicant had only become involved in the Yiguan Dao religion since his arrival in Australia to strengthen his claims to be a refugee. At [50] of is Decision Record the Tribunal found that this meant that s.91R(3) of the Act required it to disregard any conduct engaged in by the Applicant in Australia. At [51] the Tribunal recorded that pursuant to s.91R(3) it disregarded the Applicant’s Yiguan Dao related activities in Australia for the purpose of assessing the Applicant’s refugee claims.
At [52] the Tribunal found that there was no basis to suggest that the Applicant would practise the Yiguan Dao religion if he returned to China. At [54] the Tribunal found that there was not a real chance that the Applicant would face serious harm now or in the reasonably foreseeable future if he returned to China, and at [55] that there was no basis for the Applicant’s claims to fear persecution.
At [59] of its Decision Record the Tribunal rejected the Applicant’s claims that he was a genuine Yiguan Dao practitioner or that he would undertake any religious activities when he returned to China and found that there was no basis for the Applicant’s claims to fear significant harm for the purposes of the complementary protection criterion and accordingly the Tribunal affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds of the Applicant’s Application to this Court are as follows:
Orders sought by Applicant
1.I can not accept the decisions made by AAT as they don't consider my statement carefully and ignored my explanation for protection in detail. This decision made me down and I feel uncertain about my future and adverse impact due to my faith of Yi Guan Tao if I return to China.
2.AAT has ignored the fact that Yi Guan Tao has long been oppressed in China and being treated illicit and practitioners are forced to be underground in danger.
3.If I was forced to return in origin I will be persecuted and isolated in the community as such tragedy occurred in my origin and situation never changed better.
4.AAT also gave little reference and consideration on my family's background in real situation.
5.AAT's decision is imprudent and lack of investigation. AAT gave me no chance to [comment] on the outstanding issues off hearing and it is unfair for me.
The Grounds of the Application are:
6.I am pursuer of Yi Guan Tao faith and involved in family practice when I was in China. I was baptized in China. I have attended temple of Tao in China and Australia.
7. I am aware that there is no religious freedom in my origin and will be greatly challenged or harmed if jointed family altar or temple in China. The local government treats family altar illegal, bias and suppressed. M[y] family will be adversely implicated due to my religion and practice.
8. I have personally experienced danger and harmed when I was in China due to my religious practice. Such incident left me a trauma physically and psychologically and could not heal till present.
9.I hate to be departed or forced back to origin as I can hardly cope with oppress and persecution.
10. I have reason to believe that I will be at risk of harm if go back to China. I wish to have protection from Australian government as I have no confidence in securing my interest and religious right if back to China. The local government is power high handed and my faith is the vulnerable target for the Communist Regime to rack down.
I shall take all of the above paragraphs as constituting the Applicant’s separate grounds of attack on the Tribunal’s decision, and I have numbered them sequentially for ease of reference.
I note that at the hearing the Applicant did not make any meaningful submissions in support of his Grounds. He initially stated that he wanted to stay in Australia and seek “political protection”, but when I pointed out that his claims to protection seemed to be based on his religion he agreed that he claimed that he would be harmed in China because of a religious reason rather than a political reason.
Consideration
Ground 1
The Applicant fails to make out this Ground insofar as it asserts that the Tribunal did not “consider my statement carefully and ignored my explanation for protection in detail”.
At [4] – [5] of its Decision Record the Tribunal itemised the evidence before it and made express reference to the Written Statement as translated into English.
Further, the substance of the Decision Record of the Tribunal thereafter embodies a detailed consideration of the evidence before the Tribunal, including the evidence given by the Applicant at the Tribunal hearing.
Ground 1 is not made out.
Ground 2
This Ground fails to establish jurisdictional error. The fact of the matter is that the Tribunal clearly had regard to a large body of country information in relation to the Yiguan Dao religion. At [2] of its Decision Record the Tribunal recorded that it had taken into account, in accordance with Ministerial Direction No. 56, the DFAT Country Information Report PRC dated 3 March 2015 and the DFAT Thematic Report Unregistered Religious Organisations and Other Groups in the People’s Republic of China Report, both of which reports it noted that it was required to consider.
At [4] of its Decision Record the Tribunal referred to reading the Decision Record of the Delegate and noted that it had referred to country information, as indeed it had. At [29] the Tribunal referred to and footnoted country information in relation to the Yiguan Dao religion. At [53] the Tribunal recorded as follows:
[53]The Tribunal put to the applicant that it was required to have regard to the DFAT reports, which provide country information, however if it did not accept his claims, it may find that there is no relevant information in the DFAT reports. The Tribunal has considered the relevant DFAT reports which provides country information. On the evidence before it, the Tribunal is not satisfied that the DFAT reports (or the PAM Guidelines) change the Tribunal's findings in the above paragraphs, or below.
Ground 2 fails to establish jurisdictional error.
Ground 3
Ground 3 does not comprise a meaningful assertion of jurisdictional error and invites merits review of the decision of the Tribunal which is not available in this Court.
Accordingly, this Ground fails to establish jurisdictional error.
Ground 4
This Ground fails to establish jurisdictional error because first it seems to invoke merits review and second, in any event, it is clear from the Decision Record of the Tribunal that it did give consideration to the Applicant’s claims and family background.
Ground 5
This Ground also fails. First, the Tribunal is not obliged to investigate or conduct an enquiry to discover whether a visa applicant’s case might be better put or supported by other evidence and there is no duty on the Tribunal to make its own enquiries, at least generally: see CJR17 v Minister for Immigration and Border Protection [2018] FCA 1627 at [50(c)] per Banks-Smith J.
Second, it is clear on the face of its Decision Record that the Tribunal engaged in its inquisitorial task by asking the Applicant numerous questions concerning his claims. Further, the Applicant has not tendered any transcript of the hearing before the Tribunal to establish that the Tribunal member cut the Applicant off or otherwise truncated his ability to give evidence, notwithstanding that the onus of tendering such a transcript lay upon the Applicant by a consent order made in this Court on 15 January 2016 at the first directions hearing.
Ground 6
This Ground constitutes a mere allegation of fact and is not a meaningful assertion of jurisdictional error and is not made out.
Ground 7
This Ground merely repeats claims already made to and rejected by the Tribunal and invites merits review and does not establish jurisdictional error.
Ground 8
Ground 8 introduces for the first time an allegation that the Applicant had personally experienced danger and harm leading to physical and psychological trauma when he was in China. This claim has never been made previously by the Applicant since the lodging of his Protection visa application on 6 February 2014. It therefore involves a claim that was not made to the Tribunal and which it did not deal with and in such circumstances no jurisdictional error can be established by this Ground.
Grounds 9 and 10
These Grounds make no meaningful assertion of jurisdictional error and merely repeat claims already considered, dealt with and rejected by the Tribunal.
A Further Matter
Delivery of judgment in this matter was adjourned generally to await the conclusion of the appeal process in relation to MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1 (MZAFZ) and Singh v Minister for Immigration (2016) 313 FLR 1 because the Minister, as a model litigant, discovered and drew to my attention that a purported Certificate under s.438 of the Act had been issued by the Department to the Tribunal.
In the result, a further hearing took place on 24 November 2017 at which the Applicant did not appear.
The evidence establishes that a Delegate of the Minister had issued a Certificate dated 17 July 2014 purportedly pursuant to s.438 of the Act addressed to the District Registrar of the Tribunal (s.438 Certificate). The s.438 Certificate states that it applies to information in folios 70 – 71 of file number CLF 2014/20529 which file was referable to the Applicant, as may be seen by reference to the Decision Record of the Delegate.
The s.438 Certificate goes on to state that the information in folios 70 – 71 “contains information relating to an internal working document and business affairs”. Folios 70 – 71 are in evidence and merely constitute a Document Examination Report relating to the Applicant’s passport, which found that the passport was genuine and a legitimately manufactured document.
The Minister concedes that the s.438 Certificate is invalid on its face for the reasons given by Beach J in MZAFZ. However, the Minister further submitted that the non-disclosure by the Tribunal to the Applicant of the existence of the s.438 Certificate (which was the case) did not give rise to a denial of procedural fairness constituting jurisdictional error.
I agree with the Minister’s submission. In my view the s.438 Certificate is invalid but no relevant non-disclosure has occasioned procedural unfairness to the Applicant. At [9] of its Decision Record the Tribunal recorded that the Applicant’s passport had been left on his ship when he deserted, but that the Department of the Minister had retrieved it and that it had been produced to the Tribunal at the hearing on 25 November 2015 and the Tribunal went on to accept that the Applicant was a Chinese national. The Tribunal did not mention or rely upon the s.438 Certificate and did not act upon or have regard to the folios which were subject to the s.438 Certificate in reaching its decision. The folios were entirely irrelevant and neither the existence of the s.438 Certificate nor the folios subject to it could have had any conceivable impact on the outcome of the review and there was no practical unfairness caused thereby: see BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J and the Full Court decision in BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 at 43 – 44 [30] – [34] per Kenny, Tracey and Griffiths JJ.
Conclusion
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 forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 12 November 2018
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