Cul15 v Minister for Immigration
[2017] FCCA 138
•8 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUL15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 138 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of Tribunal Decision – Tribunal made adverse credibility findings – no basis to find jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65 |
| Cases cited: Aporo v Minister for Immigration and Citizenship (2009) 113 ALD 46 CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 Craig v South Australia (1995) 184 CLR 163 |
| First Applicant: | CUL15 |
| Second Applicant: | CUN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3500 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 31 May 2016 |
| Date of Last Submission: | 31 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr A Keevers |
| Solicitors for the Respondents: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 23 December 2015 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3500 of 2015
| CUL15 |
First Applicant
| CUN15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant (CUL15) is a male citizen of China aged 46 years, having been born on 18 October 1970.
The second applicant (CUN15) is the male son of CUL15, aged 20 years, having been born on 27 February 1996, and is also a citizen of China.
By application filed in this Court on 23 December 2015 they seek to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 27 November 2015 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 28 August 2014 refusing to grant them a Protection (Class XA) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (Act).
CUL15 is the main applicant, as he made specific claims to be owed protection, and CUN15 applied as a member of the same family unit as CUL15.
Background
CUL15 was granted a (Class TU) (subclass 580) Student Guardian visa (Student Guardian visa) in respect of CUN15 on 14 June 2012 and arrived in Sydney on 27 June 2012. He was cleared to remain in Australia until 27 March 2014. However, he lodged his application for a Protection visa on 26 March 2014 the day before the expiration of his Student Guardian visa.
CUN15 arrived with his father in Australia on 27 June 2012, having been granted a (Class TU) (subclass 571) Student visa on 14 June 2012. He was cleared to remain until 15 March 2015 and he was included as a family member in his father’s application for a Protection visa as mentioned at [4] above.
The success of CUN15’s application for a Protection visa was dependent upon the success of his father’s application.
By his Decision Record of 28 August 2014 the Delegate refused both applicants a Protection visa. They applied for a merits review to the Tribunal which by its Decision Record of 27 November 2015 affirmed the Delegate’s decision.
Criteria for a Protection Visa
The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 at paragraphs [34] to [41] as follows:
[34]The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular 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.
[35]A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
[36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:
“A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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; ...”
[37] A person who is not a citizen of Australia is a “non-citizen”.
[38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).
[39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).
[40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
[41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].
Claims for Protection
CUL15 was married on 1 November 1994 and he and his wife have one child, namely CUN15. He completed nine years of primary and middle school education in 1987 and worked from 1990 to June 2012, including for nearly four and a half years as a Manager at the “Tingdao Huachun Logistics Company”.
He claimed to fear persecution in China based on his Christian religious beliefs and practice and his transmission to China of banned or sensitive documents.
In a statement attached to his Protection visa application, CUL15 made in substance the following claims:-
a.His faith in socialism “collapsed” in 2009 as a result of government corruption and social unrest. He joined an unregistered “house church”, having been brought into the church by a friend who noticed his change in mood. He attended a house church rather than a church recognised by the Three-Self Patriotic Movement, as those latter recognised churches were controlled by the Chinese government.
b.On the evening of 17 October 2011, he was attending a bible study group when the police broke in and confiscated the group’s bibles. The group’s preacher was sent to a camp for re-education through labour for six months and the other church members were detained for two days. While detained, he was beaten, abused and forced to write a guarantee that he would give up his belief. He initially refused to sign such a guarantee and was detained for seven days. Following numerous beatings, he relented and signed a guarantee. Following his release, he did not attend church and felt his “soul was destroyed”.
c.Having departed from China, he collected materials relating to Christianity and sent them back to China. On 14 February 2014, his wife informed him that the police had sent a summons notice to his house in China and that she had been detained for 24 hours. The police subsequently returned to his house and ordered his wife to ask him to return to China. He knew that some church members had been caught around this time. He knew that if he returned to China he would be arrested and severely punished.
Decision of Delegate
CUL15 attended an interview with the Delegate on 21 August 2014. Prior to that interview he had supplied the Delegate with a letter of reference from the Reverend Stephen Tan of St John’s Anglican Church at Campsie stating that CUL15 had been attending that church since March 2014.
The Delegate found CUL15’s evidence not to be credible. He noted that he had only started attending St John’s at Campsie in March 2014, being the same month as he had lodged his Protection visa application, and that this was not consistent with his claim that he had been a member of an underground church in China between 2009 and 17 October 2011 when he said that he and six other members of the church had been arrested by the police.
The Delegate did not accept CUL15’s claim that he came to Australia to flee persecution so that he could practise his religion freely, but rather that he came for economic reasons.
Accordingly, the Delegate was not satisfied that CUL15 was a person in respect of whom Australia had protection obligations under s.36 of the Act and he refused to grant him a Protection visa. Consequently, he also refused to grant a Protection visa to CUN15 as a member of the same family unit.
Application for Review to the Tribunal
The applicants applied to the Tribunal on 24 September 2014 for review of the Delegate’s decision. Both applicants were invited to attend this hearing and CUL15 did appear, but CUN15 did not. The Reverend Stephen Tan also attended the Tribunal hearing and gave evidence.
In the result, the Tribunal found in its Decision Record of 27 November 2015 that CUL15 was an unreliable witness who had fabricated evidence, and it rejected his claim that he had ever attended an unregistered church in China or had any association or involvement with or connection to a church in China. It did not accept that he would attend or would wish to attend a Christian church in the event that he returned to China.
The Tribunal considered the body of evidence before it and found that CUL15’s evidence about a number of significant matters was “confused, contradictory and inconsistent over time and in certain respects vague, general and far from convincing.”
Notwithstanding the Tribunal’s finding that it did not accept that CUL15 was ever associated or involved with Christians in China, it considered a body of country information in relation to the practice of Christianity in China, including the U.S. Department of State’s 2012 International Religious Freedom Report for 2011. That country information indicated that there were between 50 and 90 million Protestant Christians in China and that the basic policy in China was one of religious tolerance with restrictions.
The Tribunal was not satisfied, having considered CUL15’s claims individually and cumulatively, that there was a real chance that he or CUN15 would suffer serious harm for a Refugee Convention reason if they returned to China either now or in the reasonably foreseeable future. The Tribunal was also not satisfied that there was a real risk that if returned to China they would suffer significant harm and it affirmed the Delegate’s decision not to grant Protection visas to the applicants.
Grounds of Attack on Tribunal Decision in this Court
The Grounds appearing in the Application filed on 23 December 2015 are as follows:
1.Jurisdictional error has been made.
Tribunal member has little knowledge about the control of Christianity by Chinese government and the current persecution of Christians. In addition, Tribunal member refers to a lot of old information (see paragraph 71). Thus, based on inaccurate information, Tribunal made wrong decision that Chinese citizens enjoy freedom of religious belief and Christians are not mistreated in China.
2.Based on above-mentioned wrong decision, Tribunal member comes to an adverse decision that there is not a real chance that the applicant would suffer serious harm for reasons of religious beliefs and practice as a Christian if the applicant returned to China.
3.The Tribunal does not consider my case properly.
There is a lot of updated information about the persecution of Christians in China. But Tribunal member does not refer to it and comes to adverse decision.
Please refer to annual report regarding Chinese Government Persecution of Christians & Churches in China prepared by China Aid Association in USA.
[link provided in Application]
Consideration
At the hearing CUL15 appeared with the aid of an interpreter but unfortunately was not able to make any meaningful submissions in support of his Grounds.
Ground 1
This Ground seems to assert a paucity of knowledge in the Tribunal of the current treatment of Christians by the Chinese government, augmented by a claim that the Tribunal referred to old country information.
The first thing to be said about this Ground is that the Tribunal was not satisfied that CUL15 had ever had any association with Christianity in China at all. At [69] of its Decision Record the Tribunal stated as follows:-
For all of the above reasons, the Tribunal has no confidence in accepting the applicant’s evidence about his claimed practice of Christianity with an unregistered house church in China. Accordingly, for these reasons, on the evidence before it, the Tribunal does not accept that he was ever associated or involved with Christians who practiced their faith with an unregistered house church in China, or that he had any involvement or association with any form of Christianity in China, or that he was baptised in China or, in any other way, had any association with Christianity in China.
However, in light of the written and oral evidence of the Reverend Stephen Tan, the Tribunal accepted that CUL15 had been attending St John’s Campsie since March 2014, but found that he had done so for the purpose of creating and strengthening his Protection visa application to be a refugee and that prior to that time he had no Christian faith.
Notwithstanding this finding, the Tribunal said that it could not make a finding with confidence that CUL15 had not since March 2014 become a genuine believer committed to continuing his practice of the Christian religion into the future, including if he returned to China, and on this basis it turned to consider his claim under the Refugee Convention criterion and complementary protection criterion.
To that end, it considered a large body of country information pertaining to the practice of Christianity in China.
At [51] of its Decision Record the Tribunal stated:-
It has also taken into account a range of information from independent sources concerning relevant matters in China, including relevant reports from DFAT, the US State Department, the UK Home Office and the Canadian Immigration and Refugee Board of Canada, as well as reports from relevant human rights groups and media reports.
Then from [71] to [76], the Tribunal referred to a large body of country information concerning the position of Christians and Protestant Christians in China and their treatment by the Chinese government. There are footnoted references to a number of reports and journal articles including from the U.S. Department of State, as referred to at [20] above.
Relevantly, in NAFI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court of Australia comprised of Gray, Tamberlin and Lander JJ at [11] stated:
The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
This body of country information which was considered by the Tribunal did not emanate from CUL15 but rather was the choice of the Tribunal. As a general proposition, the Tribunal does not commit jurisdictional error either when it makes a choice of which country information it regards as relevant and takes into account or when it makes a choice between competing information. As the Full Court of the Federal Court of Australia comprised of Spender J, Moore and Foster JJ stated in Aporo v Minister for Immigration and Citizenship (2009) 113 ALD 46 at 55 [45]:-
The choice of, and weight given to, the material before a Tribunal is a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 per French J at [27]. Further, while it can generally be said that there is no onus of proof in administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), it is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61. The decision maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.
Of course, it is the case that the Tribunal should generally have regard to the most recent country information of which it becomes aware, because it is a principle of law generally applicable to public administration that a decision-maker is to make his or her decision on the basis of the most current material available to him or her at the time the decision is made. It will often be jurisdictional error if the Tribunal does not have regard to the most current material: SZTJQ v Minister for Immigration and Citizenship (2008) 172 FCR 563.
However, there is no evidence led by CUL15 to establish that the Tribunal was aware of more recent relevant country information concerning the position of Christianity and Christians in China which it ignored and failed to take into account, such that the Tribunal’s exercise of power was thereby affected by jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82].
In my view, there is no evidence that the Tribunal acted on inaccurate or inadequate information. The balance of Ground 1 otherwise appears to invoke a merits review which is not open to this Court.
Ground 2
This Ground also invokes a merits review which is not open to this Court and Ground 2 accordingly fails.
Ground 3
In my view there is no evidence that the Tribunal did not properly consider CUL15’s case. The Decision Record is a closely reasoned document. The Tribunal gave a number of examples of evidence which it considered to be contradictory and implausible and lacking in credit. The findings of the Tribunal were reasonably open on the material before it and it cannot be suggested that they suffer from legal unreasonableness or lack an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
In so far as this Ground also complains about the failure of the Tribunal to utilise more recent country information pertaining to the persecution of Christians in China, it is to be rejected for the same reason as Ground 1. CUL15 never submitted any country information to the Tribunal. There is no specificity in this Ground to “a lot of updated information” being available and there is no evidence led by the applicants that the Tribunal was aware of any such “updated information”. There is also no evidence that the report referred to in this Ground as having been prepared by the China Aid Association in USA was known to the Tribunal. As was stated by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1125 [1]:-
In the exercise of its review function, the Tribunal may obtain such information as it considers relevant[1]. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act[2].
[1] Migration Act, s 424.
[2] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 999 [43] per Gummow and Hayne JJ, Gleeson CJ agreeing at 992 [1]; 207 ALR 12 at 21-22, 13; [2004] HCA 32.
Finally, the alleged report of the China Aid Association in USA was not before the Tribunal and it is not open for CUL15 to ask this Court to admit new evidence for the purpose of inviting the Court to disagree with the Tribunal’s factual conclusions: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J.
Accordingly, Ground 3 fails.
Conclusion
The applicants have failed to establish jurisdictional error in relation to the decision of the Tribunal and their Application must be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 8 February 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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