CWY23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1036
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CWY23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1036
File number: PEG 280 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 15 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to afford the applicant an opportunity to discuss his claims for protection – whether the Tribunal failed to consider that the applicant would face a real chance of persecution on account of his religion – whether the applicant was denied a proper opportunity to participate in the hearing in circumstances where he claims he could not hear the interpreter – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 425, 429A, 476, 477 Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 9 October 2024 Place: Perth Applicant: The applicant appeared in person (via Microsoft Teams) Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 280 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CWY23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $6,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of China who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 8 November 2023. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The grounds raised by the applicant assert that the Tribunal made a jurisdictional error because:
(a)the Tribunal failed to afford him a proper opportunity to discuss his faith and failed to give the benefit of the doubt to an asylum seeker who was generally credible but unable to substantiate his claims;
(b)the Tribunal failed to consider whether he would face a real chance of persecution on account of his Christian religion; and
(c)at the Tribunal hearing, he could not properly hear the interpreter, which caused him to guess questions and affected his ability to participate in the hearing.
For the reasons explained below, I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND REVIEW APPLICATION
The applicant arrived in Australia in July 2017 as the holder of a visitor visa.
On 11 October 2017 the applicant applied for a protection visa. In a statement that accompanied his protection visa application, the applicant claimed to be from an underground Christian family and to fear harm on account of his religion.
The applicant was invited by the Minister’s Department to attend an interview with an officer of the Department on 31 October 2018 to discuss his claims for protection. The applicant failed to attend the interview and a delegate of the Minister proceeded to consider the available information. The delegate refused to grant the applicant a protection visa on 31 October 2018.
On 14 November 2018 the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 1 November 2023 the applicant attended a hearing before the Tribunal to give evidence and present arguments in relation to his claims for protection. At the applicant’s request, the applicant appeared at the hearing via telephone. The applicant was assisted by an interpreter in the Mandarin and English languages.
On 8 November 2023 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal was satisfied that the applicant was a citizen of China and found that China was the receiving country for the purposes of assessing the applicant’s protection claims.
The Tribunal found that the applicant’s evidence was vague, lacking in detail and unconvincing. The Tribunal also found that the applicant’s oral evidence was substantially inconsistent with his written statement. The Tribunal recorded that:
(a)the applicant stated in his written statement that his family was persecuted in China, but at the hearing he said that he and his family were not persecuted; and
(b)the applicant in his written statement gave details of the suffering of his grandfather, his involvement in the underground church in China and that he died in jail, but when asked about his grandfather at the hearing, the applicant claimed he had no recollection as it was a long time ago.
The Tribunal expressed concern that the applicant’s understanding of Christianity was very vague, including that when asked what branch of Christianity he belonged to, he at first just said ‘Jesus’ and that he had never heard of the official church in China.
The Tribunal referred to the applicant’s claim that he was put on a persecution list after he got his passport. The Tribunal noted the applicant obtained his passport in 2014 and left China on his passport through a major airport in 2017. Based on country information, including a report published by the Department of Foreign Affairs and Trade, the Tribunal did not accept that if the applicant was on a list or of any interest to the authorities in China, he would have been able to exit China on his passport through a major airport. The Tribunal found that the applicant’s ability to exit China on his passport indicated that he was not of interest to the authorities in China and was not in danger if he was to return to China.
The Tribunal did not accept that the applicant or his family were arrested and detained. The Tribunal did not accept that they were a Christian family who had come to the attention of authorities.
The Tribunal did not accept that the applicant and his grandfather or father were leaders of any church in China.
The Tribunal did not accept that the applicant attended Chinese Church in Australia or had any connection to any Chinese church in Australia.
The Tribunal noted that the applicant was given ample opportunity to discuss his faith and the commitment to his faith, but the applicant was unable to do so in any cogent believable manner.
The Tribunal did not accept that the applicant would practise as a Christian in China or that he would attend a family/underground church if he were to return to China.
The Tribunal did not accept that the applicant would put himself and his family at risk of harm due to any commitment to the underground gatherings or church.
The Tribunal did not accept that the applicant or his family would be deprived of their basic human rights for any of the reasons he claimed if he returned to China.
Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant would face a real chance of serious harm or a real risk of significant harm if he were to return to China and therefore found that he did not meet the criteria for a protection visa in s 36(2)(a) or (aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant’s application for judicial review was filed on 30 November 2023. It was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following three grounds:
1.The Department did not allow me to discuss my faith and commitment. He was unable to do so. The Department did not ask any questions or invite me to explain. The Department should have given the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all of their claims.
2.The Tribunal did not consider whether I would face a real chance of persecution because of my Christian religion. I will suffer serious harm if I return to my hometown. Considering the current dictatorship in China, there are substantial grounds for believing that, as a foreseeable consequence of returning to China, there is a real risk I will suffer significant harm.
3.In the hearing with the Tribunal, I could not hear the interpretation properly, and this caused me to guess the question. The communication facility was under standards and affected my ability to participate in the hearing.
The applicant’s application was accompanied by an affidavit in which he provided information about his claims for protection and annexed a copy of the decisions made by the delegate and the Tribunal.
The applicant was required, pursuant to an Order by a Registrar of this Court on 7 February 2024, to file and serve written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which he intended to rely 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions as required by the Registrar’s Order.
The evidence before the Court comprises:
(a)the applicant’s affidavit filed on 30 November 2023;
(b)the court book filed on behalf of the Minister on 16 January 2024;
(c)an affidavit of Aatika Ismailjee filed on behalf of the Minister on 1 February 2024, annexing a copy of a document that was inadvertently omitted from the court book; and
(d)an affidavit of service of Benjamin Mayne filed on behalf of the Minister on 8 October 2024, confirming that the applicant had been served with a copy of the court book and the Minister’s submissions.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
CONSIDERATION OF THE GROUNDS OF APPLICATION
Ground 1
In ground 1, the applicant asserts that the Department made errors. To the extent that the ground purports to invite judicial review of the delegate’s decision, it cannot be considered by the Court. That is because this Court does not have any jurisdiction to review the delegate’s decision in this matter. The delegate’s decision is a primary decision within the meaning of s 476(4)(a) of the Migration Act and s 476(2)(a) of the Migration Act expressly provides that the Court does not have jurisdiction in relation to primary decisions.
The Minister in his submissions treated the ground as an assertion of error in the Tribunal decision, noting also that the applicant did not attend his interview with the delegate so therefore the ground could not meaningfully relate to the delegate’s decision. At the hearing, I explained to the applicant that the Court does not have jurisdiction to review the delegate’s decision and that, like the Minister, I propose to treat the ground as asserting error in the Tribunal decision.
The ground raised by the applicant alleges two errors, namely, that the Tribunal:
(a)did not allow the applicant to discuss his faith and commitment; and
(b)should have given the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all their claims.
The applicant did not make any submissions that could reasonably be seen as addressing this ground.
I accept the Minister’s submission that, based on the reasons given by the Tribunal in support of its decision, it appears that the Tribunal afforded the applicant many opportunities to discuss his faith and commitment at the Tribunal hearing. The Tribunal from [32] to [52] of its reasons summarised the questions that it asked the applicant at the hearing about his Christianity and the responses given by the applicant. These paragraphs suggest that the Tribunal asked the applicant questions relating to:
(a)why he could not return to China;
(b)what branch of Christianity he belonged to and whether he followed Catholicism or Protestantism;
(c)what Christianity means to him and his beliefs in Christianity;
(d)country information to the effect that Christians can practise their religion in China and about official churches in China;
(e)whether the applicant had come to the attention of the authorities in China;
(f)his family circumstances, including whether his parents and grandparents practised Christianity and whether they had attracted the attention of the authorities; and
(g)how Jesus died.
Based on the Tribunal’s reasons for decision, it appears that the applicant provided answers to each of these questions, although some of the applicant’s answers were inconsistent with the information in his written claims and the Tribunal considered some of the applicant’s answers to be vague, lacking in detail and unconvincing. I am satisfied that the Tribunal afforded the applicant a meaningful opportunity to discuss his religion and any fear of harm arising from his religion. The first part of the ground therefore fails.
The second part of ground 1 asserts, in effect, that the Tribunal ought to have given the applicant the benefit of the doubt where his claims were generally credible but could not be substantiated. The Tribunal acknowledged that this is the approach it should take to assessing protection claims at [55] of its reasons, where it said:
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
There is nothing in the Tribunal’s reasons to suggest that the Tribunal did not proceed in accordance with the approach it identified at [55] of its reasons. The Tribunal made adverse credibility findings against the applicant based on its assessment that his evidence was vague, lacking in detail and unconvincing and that his oral evidence was substantially inconsistent with his written statement. There is no evidence before the Court to suggest that this assessment of the applicant’s credibility was not reasonably open to the Tribunal. The second part of ground 1 therefore also fails.
Ground 1 is not established.
Ground 2
By ground 2, the applicant alleges that the Tribunal failed to consider whether he would face a real chance of persecution because of his Christian religion. The ground makes assertions that appear to be directed to the merits, namely that the applicant will suffer serious harm if he returns to his hometown and that, considering the current dictatorship in China, there are substantial grounds for believing that, as a foreseeable consequence of returning to China, there is a real risk he will suffer significant harm.
The only submission made by the applicant in relation to this ground is a general submission at the hearing to the effect that he was of the impression that because Christians are getting persecuted in China, he thought this would be a good enough reason.
I accept the Minister’s submission that the Tribunal plainly considered whether the applicant would face a real chance of persecution because of his Christian religion. Indeed, the assessment of this claim for protection was the primary focus of the Tribunal’s reasons. The Tribunal made adverse findings in relation to the applicant’s claimed past involvement and practice of Christianity and, in assessing the risk of harm the applicant would face in the future, the Tribunal did not accept that the applicant would practise as a Christian in China, attend an underground or family church if he returned to China or that he would put himself at risk of harm due to any commitment to underground or local gatherings in China. The Tribunal also had regard to the applicant’s ability to exit China on his own passport, indicating that he was not of interest to the authorities in China and was not in danger if he were to return to China. These findings were open to the Tribunal on the evidence before it and explain why the Tribunal was not satisfied that the applicant would face a well-founded fear of persecution amounting to serious harm if he returned to China.
Based on the same findings of fact, and that the ‘real risk’ standard in s 36(2)(aa) of the Migration Act is equivalent to the ‘real chance’ standard for the purposes of the assessment of the refugee criterion, the Tribunal also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there would be a real risk that he would suffer significant harm. This finding was also open to the Tribunal on the evidence before it.
I also accept the Minister’s submission that the second part of the applicant’s ground, asserting that there is a current dictatorship in China and therefore there are substantial grounds for believing that there is a real risk he will suffer significant harm, invites the Court to engage in impermissible merits review. As I explained to the applicant at the hearing, the Court cannot consider for itself whether he meets the criteria for a protection visa. Further, as noted by Counsel for the Minister in her oral submissions, to the extent that the applicant refers to a dictatorship in China, there is no evidence before the Court to indicate that this formed any part of his claims for protection when the matter was before the Tribunal.
The applicant’s ground, and his submissions at the hearing, suggest that he disagrees with the Tribunal decision. However, as indicated above, disagreement with the Tribunal decision, of itself, is insufficient to establish jurisdictional error. In circumstances where the Tribunal considered all of the applicant’s claims and made findings that were open to it on the evidence before it, ground 2 does not establish jurisdictional error.
Ground 3
By ground 3, the applicant asserts that he was unable to hear the interpretation properly and therefore guessed questions, and this affected his ability to participate in the hearing. At the hearing before the Court, the applicant clarified that he did not assert any interpretation error, but rather asserted that he was simply unable to hear the interpreter properly. I explained to the applicant at the hearing that this ground cannot succeed without evidence. The Minister had also made this point in his written submissions. The applicant did not seek any additional opportunity to adduce evidence relevant to this ground and made no further submissions on it.
I treat this ground as an assertion that the applicant was denied a real and meaningful opportunity to appear before the Tribunal at the hearing. In the circumstances of the present case, the Tribunal was required by s 425 of the Migration Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. An invitation to appear before the Tribunal must be a real and meaningful one and must not be a hollow shell or empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759 at [31]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [33]. In the present case, the applicant was invited to attend a hearing and, at his request, he appeared at the hearing by telephone. The Tribunal was permitted to allow the applicant to appear before the Tribunal by telephone and to give evidence by telephone pursuant to s 429A(a) of the Migration Act.
I accept the Minister’s submission that the evidence in the court book does not support the applicant’s assertion that he was unable to hear the interpreter. The Tribunal at [30] of its reasons recorded that the applicant ‘stated he had no difficulty understanding the interpreter’. There is nothing in the Tribunal’s reasons to indicate that at any stage in the hearing, the applicant expressed concerns about his ability to hear the interpreter. There is no evidence in the court book to suggest that at any stage after the hearing, and before the Tribunal decision, the applicant contacted the Tribunal to express any concern about his ability to effectively participate in the hearing.
Further, as noted above, the Tribunal in its reasons summarised a number of questions that it asked the applicant about his religion and the answers that the applicant provided in response to those questions. There is nothing in this summary to suggest that the applicant’s ability to participate in the hearing was compromised in any way. The applicant, having the benefit of the Tribunal reasons, has not identified any specific question that he did not hear clearly or otherwise identify any answer that did not correspond to the question he thought he was asked.
Based on the materials before the Court, I am unable to make any finding that the applicant had any difficulties in hearing the interpreter at the hearing before the Tribunal. There is nothing in the evidence before the Court to suggest that the applicant was unable to effectively participate in the Tribunal hearing or that the invitation to attend a hearing issued to the applicant pursuant to s 425 of the Migration Act was not a real and meaningful one.
Ground 3 is not established.
CONCLUSION AND COSTS
In circumstances where I have found that the applicant has not established that the Tribunal made a jurisdictional error, the application for judicial review is dismissed.
I heard submissions on costs from both parties at the hearing. The Minister seeks an order that the applicant pay his costs of the application fixed in the amount of $6,500. This is well below the scale amount of $8,371.30. The applicant questioned why he was not told before about this, and said that he would not have commenced the application if he had known. There is no obligation on the Minister or the Court to put the applicant on notice of the possibility of an adverse costs order before the application is filed. After the application was filed, the Minister put the applicant on notice, in the response filed on 14 December 2023, that the Minister would seek an order that the applicant pay the Minister’s costs. I am satisfied that it is appropriate that costs follow the event in this matter and that the quantum of costs sought by the Minister is appropriate in this matter. I therefore order the applicant to pay the Minister’s costs fixed in the amount of $6,500.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 October 2024
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