CWO19 v Minister for Immigration
[2020] FCCA 2065
•24 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CWO19 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2065 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – first applicant claiming a fear of harm in China as a Christian – first applicant disbelieved in important respects and other fears found not to be well-founded – whether the Tribunal failed to afford procedural fairness or gave proper consideration to certain evidence considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: AAL19 v Minister for Home Affairs [2020] FCAFC 114 Ali v Minister for Home Affairs [2020] FCAFC 109 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Hossain v Minister for Immigration (2018) 264 CLR 123 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZJSS (2010) 243 CLR 164 Minister for Immigration v SZMTA (2019) 264 CLR 421 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SZQJH v Minister for Immigration (2013) 140 ALD 11 |
| First Applicant: | CWO19 |
| Second Applicant: | CWP19 |
| Third Applicant: | CWQ19 |
| Fourth Applicant: | CWR19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1878 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr P Cutler |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application as amended by leave granted on 28 July 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1878 of 2019
| CWO19 |
First Applicant
| CWP19 |
Second Applicant
| CWQ19 |
Third Applicant
| CWR19 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 July 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from initial written submissions by the Minister.
The applicants are citizens of China.[1] The first applicant (applicant) first arrived in Australia with her husband (second applicant) and sons (third and fourth applicants) on 9 November 2013 as the holder of Temporary Work (skilled) visas (subclass 457).[2]
[1] Court Book (CB) 111-114
[2] CB 256
On 12 September 2014 the applicant and the second applicant departed Australia to travel to China and returned on 17 September 2014.[3]
[3] CB 256
The applicants lodged applications for protection visas which were found to be invalid[4] and on 7 September 2015 the applicants applied again for protection visas (subclass 866) attaching the same documentation.[5] Only the applicant provided claims of her own. The second, third and fourth applicants applied as members of the same family unit. In summary, the applicant feared harm on the basis of her Christian faith and her intention to attend unregistered church gatherings if she returned to China.[6]
[4] CB 125-131
[5] CB 132-242
[6] CB 115
On 13 July 2016 the delegate refused to grant the applicants the visas. The delegate found the totality of the applicant's claims not to be credible.[7]
[7] CB 255-264
On 24 July 2016 the applicants applied to the Tribunal for review of the delegate's decision.[8]
[8] CB 265-281
On 31 January 2019 the applicants were invited to appear before the Tribunal to give evidence and provide arguments.[9]
[9] CB 290-291
On 23 February 2019 the applicant provided the following to the Tribunal: [10]
a)a personal statement;
b)documents and a letter from the Grace Evangelical Church regarding the applicants' attendance and activities at church;
c)letters from the applicants' friends and neighbour in support; and
d)a number of photographs.
[10] CB 296-322
On 25 February 2019 the applicant appeared before the Tribunal. The second, third and fourth applicants were not present. Another person known as Sister Le (the witness) also appeared and gave oral evidence to the Tribunal.[11]
[11] CB 323-326
On 3 July 2019 the Tribunal affirmed the decision under review.[12]
[12] CB 329-345
Tribunal decision
The Tribunal noted at [16] that it would consider any claims that the applicant made on behalf of the second, third and fourth applicants as they did not appear at the hearing.
The applicants had no issues obtaining a passport or departing or re-entering China.[13] The Tribunal noted at [22] that the applicants obtained a passport and exited the country without any issues which suggested that there was no further interest in her or her husband. The applicant agreed.
[13] [19]
The Tribunal did not accept that the applicant had been involved in a family gathering in China from 1999 to 2007, or that the second applicant was arrested and detained for 20 days as a result of this, for the following reasons:[14]
a)the claims were not mentioned in the applicant's written statement lodged with the application, nor were they mentioned in the second applicant's application form;
b)the second applicant did not make any subsequent claims, nor did he attend the Minister’s Department interview or Tribunal hearing to give direct evidence of his experience;
c)the applicants were able to apply for and obtain passports without issue and depart and re-enter China without issue which suggested to the Tribunal that there was no history of past issues with the authorities, nor adverse interest in them now;
d)the Tribunal found that it was not credible or plausible that the second applicant would be arrested and detained for 20 days because of a small group gathering to discuss moral issues without using a bible.
[14] at [45]
The Tribunal accepted at [47] that the applicant had been attending church regularly since 2014 and had been baptised.
The Tribunal found that the applicant's knowledge of the Christian faith was at a minimal and limited level which was not necessarily inconsistent with her education level and description of her religious practice. The Tribunal could not conclude that the applicant was not a genuine Christian. The Tribunal was satisfied at [48] that the applicant had engaged in church activities in Australia otherwise than to strengthen a protection claim.
The Tribunal was prepared to accept at [49] that upon return to China the applicant would seek to find a similar environment to practise her religious faith and could not discount the possibility that she would seek to practise in an unregistered family church upon return.
The Tribunal found that there was nothing in the applicant's evidence that indicated that she was likely to engage in activities or be associated with individuals or institutions in China that would attract adverse attention of the state. The Tribunal noted at [50] and took into account that the witness, regularly travelled back to China without incident and the applicant herself was able to visit China in 2014 and enter and exit the country without incident.
With reference to country information and previous findings, the Tribunal was satisfied at [51] that the applicant would be able to practise her faith without facing a real chance of serious harm for reasons of religious or political opinion were she to return to China in the reasonably foreseeable future.
In respect of the claim regarding the children's education, the Tribunal found that the inability to access a religious education in China or the different standard of education, did not of itself amount to serious harm. The Tribunal found at [52] that there was nothing before it to suggest that the applicant or her children would face a real chance of serious harm relating to their education upon return to China for reasons of their religion.
Turning to complementary protection, the Tribunal was not satisfied at [55] that there were substantial grounds to believe that any of the applicants faced a real risk of significant harm.
The Tribunal was not satisfied at [56] that any of the applicants were a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Migration Act 1958 (Cth).
The Tribunal found at [57] that there was no suggestion that any of the applicants satisfied s.36(2) on the basis of being a member of the same family unit as a person who satisfied s.36(2)(a) or (aa) and who holds a protection visa.
The current proceedings
These proceedings began with a show cause application filed on 24 July 2019. This matter came before me for a show cause hearing on 30 January 2020. The applicants were by that stage legally represented and their counsel had prepared written submissions and also made oral submissions at the show cause hearing. I was persuaded by the applicants’ submissions that Grounds 1 and 3 in the application merited a final hearing. Those grounds had been somewhat refined in oral argument.
I listed the matter for a final hearing on 18 July 2020.
For the purposes of the final hearing, the applicants rely upon the grounds as amended in a document annexed to the applicants’ further submissions filed on 20 July 2020. Those grounds are consistent with the oral arguments put at the show cause hearing and I granted the applicants leave to rely upon them. The grounds as amended are:
1. The Tribunal has failed to afford procedural fairness to the Applicant and has not provided an opportunity to her to answer or explain:
a)that her November 2014 travel to China occurred at a time approximately 12 months prior to her baptism into the Christian church; and
b)that her fellow congregant [the witness] is in fact an Australian citizen and the circumstances of [her] travel are not relevant to the Applicant's claim for protection
2.In the alternative, the Tribunal hasn't given proper genuine and realistic consideration to the Applicant's claim for protection by reason of failing to consider:
a)that her November 2014 travel to China occurred at a time approximately 12 months prior to her baptism into the Christian church; and
b)that her fellow congregant [the witness] is in fact an Australian citizen and the circumstances of [her] travel are not relevant to the Applicant's claim for protection.
The only evidence I have before me is the court book filed on 18 September 2019. Annexed to the applicants’ final submissions is a photograph of a passport for the witness. That is an Australian passport. Although the applicants contend that the passport was shown to or available to the Tribunal, or at least that the nationality of the witness was revealed to the Tribunal, there is no transcript of the Tribunal hearing available and there is no evidence of that disclosure.
Consideration
Applicants’ contentions
As is apparent from the January submissions, there are two factual bases for the current application:
a)the applicant's one week trip to China in November 2014; and
b)the regular travel to China of the witness (a member of the same congregation as the applicant).
As previously submitted both of these matters influenced the Tribunal's decision to affirm the delegate's decision.
In relation to the trip to China, it appears from [19]-[20] of the Tribunal decision that the applicant was asked why she could not return to China now when she had no problems travelling in 2014. It appears that she said she now had a “firmer belief”.[15]
[15] CB 332 at [20]
The applicant’s answer is said to have been correct. In fact, she was baptised into the church in December 2015 (over a year after her trip to China).[16] This information was before the Tribunal but the applicants contend that it appears to have been overlooked when considering the importance of the 2014 trip to China.
[16] CB 250
In relation to the witness, she informed the Tribunal that she returns to China every one to two years to visit her parents.[17]
[17] CB 335 at [32]
The Tribunal makes clear at [50] that it “notes and takes into account” that the fellow congregant has visited China regularly without incident.
The conclusion then reached is that there would be no real chance of serious harm to the applicant.
However, the applicants submit that what is not appreciated by the Tribunal is that the witness is an Australian citizen. Accordingly, there is said to be a difference in assessing a real chance of harm between the applicant (a Chinese citizen Christian who may have to return permanently to China) and the witness (a Chinese born Australian citizen who returns to China regularly to visit her parents for short periods).
Procedural fairness
The role of the Tribunal on review has been summarised by the High Court in Minister for Immigration v SZMTA[18] at [6]-[14].
[18] (2019) 264 CLR 421
The Tribunal is required to conduct itself in accordance with the rules of procedural fairness.
The applicant submits that she has not been afforded procedural fairness in respect of the two factual issues outlined above:
a)the Tribunal considered the applicant's travel to China “thirdly” in its reasons at [45] of its decision. It is said to be possible there was no adverse interest because she was not a Christian at the time of travel; and
b)the Tribunal noted and took into account at [50] of its decision the travel of the witness.
There is nothing to indicate that the applicant was on notice that either of these matters were going to be relied on in that way to adversely decide against her.
It is accepted that not every breach of procedural fairness will result in a jurisdictional error. A breach has to be material.[19]
[19] see SZMTA at [45] and following; materiality has also been considered in Hossain v Minister for Immigration (2018) 264 CLR 123 at [30] (which pre-dates SZMTA) several subsequent Full Federal Court cases including AAL19 v Minister for Home Affairs [2020] FCAFC 114 and Ali v Minister for Home Affairs [2020] FCAFC 109
To be material, it is necessary to consider whether the consideration of those two issues could realistically have resulted in a different decision.
The applicants submit that proper consideration of those two issues could have resulted in a different decision:
a)the applicant's travel at a time when she was not yet a baptised Christian (although it is accepted that she had some involvement in the church) was not relevant to her claim of persecution as a Christian; and
b)the citizenship of the witness was “not brought to the Tribunal's attention”[20] and the applicant was not given the opportunity to point out to the Tribunal that it was not comparing “apples with apples”.
[20] This submissions is at odds with the proposition in oral argument that the Australian nationality of the witness was disclosed
In the circumstances, the applicants submit that there has been a material breach of procedural fairness.
In the alternative, the applicants state that by considering the applicant’s pre-baptism 2014 travel, the Tribunal has not discharged its obligation of reviewing her claim to protection.
Minister’s contentions
The applicants’ complaint relates to two matters. The first is that the applicant was baptised in 2015.[21] The Tribunal specifically records this at [14]. There is said to be no basis to suggest that it has been overlooked by the Tribunal at [45] and [50] as appears to be contended. The apparent suggestion by the applicant that the Tribunal should have given less weight to the applicant’s travel to China in 2014 because she was baptised in 2015 is said to be no more than arguing with the Tribunal’s decision and seeking merits review, contrary to Minister for Immigration v Wu Shan Liang.[22]
[21] CB 250
[22] (1996) 185 CLR 259 at 272
The second is that the witness, who gave evidence to the Tribunal on behalf of the applicant at [32], was an Australian citizen. It does not appear that the witness gave this evidence to the Tribunal, and it is for the applicant to provide a transcript of the Tribunal hearing to verify that she did. But even if she did tell the Tribunal that she was an Australian citizen the argument is again said to be no more than a disagreement with the weight the Tribunal gave to her travels to China at [50] and another appeal for merits review.
The Minister submits that there is also no basis for the apparent suggestion by the applicant that the Tribunal was obliged to notify her that it would take into account her and the witness’ travels to China. Both matters are obviously relevant given she claimed to fear harm in China and the witness was a member of her church. An issue, or conclusion, which is “obviously open” from the “known material” is not one that needs to be specifically raised by the Tribunal with the review applicant.[23]
[23] see Minister for Immigration v SZGUR (2011) 241 CLR 594 at 599 [9] per French CJ and Kiefel J; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; SZQJH v Minister for Immigration (2013) 140 ALD 11 at [37]
Accordingly, the Minister submits that there was no failure to give proper genuine and realistic consideration to either matter having regard to Minister for Immigration v SZJSS[24] at [29]-[37], or any breach of procedural fairness by the Tribunal as the applicant now seeks to contend.
[24] (2010) 243 CLR 164
Resolution
The applicant was on notice from the delegate’s decision that her return travel to China in September 2014 detracted from her claims.[25]
[25] CB 261
Before the Tribunal, the applicants produced evidence from the witness and the Tribunal discussed that evidence at [32] of its reasons:[26]
The Tribunal took oral evidence from [the witness]. She told the Tribunal that she met the applicant through their children's school at the end of 2013. She talked to her about her religion and introduced her to her church. When asked why she did this, the witness said she is a faithful believer and evangelising is part of her practice and she engaged with the applicant in this spirit. The applicant was interested and started to attend her church, the Grace Evangelical Church. When asked the denomination she said it was "Christian" and they believed in Jesus Christ. She has been with the church for 14 years. She attends every Sunday for the service from 10.30 to 12pm. The applicant and her children attend most Sundays, and have been doing so since 2014. She also volunteers and helps a lot in the church community. The Tribunal asked the witness if she sees the applicant outside of church, she said she does not as they both have busy lives. The witness said she is originally from Shangdong Province in China. She returns to China every one to two years to see her parents, she was last there last year for three or four weeks.
[26] CB 335
The outcome before the Tribunal was influenced by that evidence as well as by the applicant’s own return trip to China which had been discussed by the delegate. The Tribunal concluded at [50]:[27]
Having regard to the country information, indicated above, the Tribunal finds that there is a significantly large and growing Christian population in China, with estimates of 70-100 million Protestants, of which less than a third belong to registered churches. DFAT concludes that broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While acknowledging that restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise, and that [those] who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions, religious practice which is at high risk of adverse official attention is generally that which the government perceives as being connection to broader ethnic, political or security policies.[28] The State Administration for Religious Affairs (SARA) permits friends and family to hold small, informal prayer meetings without official registration.[29] The Tribunal has also taken into account that there has been a tightening of religious policy in China and increasing crackdowns in recent years under President Xi Jinping. The available country information suggests that the interests of the government and through it, the authorities, in controlling or monitoring religious activities is to protect the authority of the Chinese Communist Party (CCP) and prevent undue foreign interference.[30] There is nothing in the applicant's evidence of practice of her faith in Australia that indicates she is likely to engage in activities or be associated with individuals or institutions there in a manner that will attract adverse attention of the state. The Tribunal notes and takes into account that the witness, being a fellow congregant of the applicant's church, regularly travels back to China to visit her family members without incident, and the applicant herself was able to visit China in 2014 and enter and exit the country without incident.
[27] CB 340-341
[28] Ibid. para 3.24
[29] Ibid. Para 3.37
[30] Ibid. para 3.23, 3.39. See also Canada: Immigration and Refugee Board of Canada, China: Treatment of “ordinary” Christian house church members by the Public Security Bureau (PSB), including treatment of children of house church members (2009)-2014), 10 October 2014 CHN104966.E, available at type="1">
The Tribunal was well aware that the applicant had been baptised following her return visit to China. The Tribunal was influenced by the fact that the witness was able to travel to China without incident. It is not known with certainty whether the witness’ Australian citizenship was revealed to the Tribunal but, even if it had been, it is not apparent that it would have made any difference to the Tribunal’s conclusions. There is no suggestion that the witness has renounced her prior Chinese citizenship. It is not known whether she travels to China on her Australian passport or on a Chinese passport. Neither is it known whether the Chinese authorities would treat one of their citizens differently if the citizen was a dual citizen of another country. These are matters of speculation.
I am unable to conclude that the Tribunal overlooked anything material in relation to the nationality of the witness.
Further, the timing of the baptism of the applicant needs to be seen in context. The applicant claimed to have participated in underground church activities in China. That claim was rejected. She also claimed to have participated in church activities in Australia, which was accepted. The applicant had a fair opportunity at the Tribunal hearing to stress any matters she wished bearing upon her fear of returning to China. That included the fact of her baptism. I am not persuaded that the process followed by the Tribunal was in any way unfair, or that the Tribunal failed to give proper consideration to material evidence.
Conclusion
I conclude that the applicants have failed to establish that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 August 2020
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