Cxu19 v Minister for Immigration
[2020] FCCA 179
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXU19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 179 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: NAEH of 2002 v Minister for Immigration [2002] FCA 927 |
| Applicant: | CXU19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1919 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 31 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr L Leerdam of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1919 of 2019
| CXU19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTLICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 27 June 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 22 January 2020.
The applicant is a male citizen of China born on 17 September 1989.[1] The applicant arrived in Australia on 25 April 2007.[2]
[1] Court Book (CB) 74.
[2] CB 82.
The applicant applied for a protection (Class XA) (Subclass 866) visa (protection visa) on 22 September 2015.[3] The applicant’s claims were set out in a statement accompanying the application.[4] The applicant’s claims may be summarised as follows:
a)he was born to a Catholic family in Fujian province and his family had been persecuted because of their religious beliefs and involvement with an underground church;
b)one day the applicant and his family attended a Mass at the home of a member of their church. Police arrived, confiscated the mobile phones and books of the attendees, and claimed the attendees were engaged in illegal gatherings and belonged to the underground Catholic Church. Because the applicant was under 18 years of age, he was required to stay at the scene. The applicant’s mother and other members were taken to the Public Security Bureau (PSB). The police checked the applicant’s ID card, family address and school grades and warned him not to attend any more underground church activities. The applicant’s mother and other members were detained for two days. His mother returned home with bruises on her body;
c)after this, the applicant’s mother worried about his personal safety, so sent him to Australia to study;
d)he attended St Dominic's Catholic Church in Flemington from his arrival in Australia in April 2007 as the holder of a schools sector (Subclass 571) visa;
e)during a visit home to China in January 2008, his mother organised church members to come to her home for a meeting while the applicant was visiting his grandmother. All the church members, including the applicant’s mother, brother and sister were arrested by police. The family home was closed and no one was allowed to enter. The applicant’s mother, brother and sister were accused of providing an illegal gathering place, undermining social stability and subversion. The applicant’s siblings were jailed for three months; his mother for six months. The applicant’s grandmother arranged for him to return to Australia in February 2008;
f)after his return to Australia, the applicant felt his life lost meaning and he dropped out of school to work and support himself. In early 2015 he met a person called Mingxing Wang who reintroduced him to Catholicism. The applicant returned to St Dominic's in February 2015; and
g)the applicant did not want to return to China and become a "black" person, where he would be arrested by the PSB and suffer persecution.
[3] CB 1.
[4] CB 61.
On 4 August 2016, the applicant attended an interview with the delegate. At interview, the applicant further claimed that he:[5]
a)stopped believing in Christianity from 2008 to February 2015;
b)had attended a Church in Flemington since February 2015 but could not remember the Church’s name. He attended the Church on Sundays when he did not have other things to do;
c)missed the Church’s 2015 intake so had to wait until May 2016 to join the church study group. After one year of study he would be eligible for baptism. He had purchased a bible in May 2016 but had not read much yet;
d)participated in a ceremony at his Church during which the participants decided whether they wanted to follow the Catholic faith. Photographs of the ceremony were provided to the delegate at interview; and
e)did not apply for a protection visa earlier because he wanted to return to China to see his family.
[5] CB 84.
The application was refused on 4 August 2016. The delegate found the totality of the applicant's claims not to be credible.[6]
[6] CB 82.
On 18 August 2016 the applicant applied to the Tribunal for review of the delegate's decision.[7]
[7] CB 91.
On 5 June 2016, the applicant gave oral evidence before the Tribunal. The applicant’s registered migration agent also attended.[8] At hearing, the applicant submitted photographs taken at his Church which he claimed showed his "admission" to the Catholic Church.[9] The applicant also submitted a letter from the President of the Western Sydney Catholic Chinese Community.[10]
[8] CB 135.
[9] CB 142-144.
[10] CB 145.
On 27 June 2019 the Tribunal affirmed the decision under review.[11]
[11] CB 149.
The decision of the Tribunal
The Tribunal noted that it put to the applicant at hearing its concerns regarding offshore remittances of over $410,000 and gave the applicant an opportunity under s.424AA of the Migration Act 1958 (Cth) (Migration Act) to comment on that information. The Tribunal noted that the applicant denied this and raised a concern that someone might be using his identity. The Tribunal accepted this may have been the case and made no adverse findings on the basis of the information.[12]
[12] at [47].
The Tribunal noted that it had considered the letter of support provided from Mr Zhang, the President of the Western Sydney Catholic Chinese Community and photographs of the applicant in Church settings. The Tribunal accepted that Mr Zhang believes that the applicant is an active member of the church community, and that the applicant was baptised in April 2017. The Tribunal did not accept at [48], however, that the applicant was a genuine adherent of the Catholic faith for the following reasons:[13]
a)Mr Zhang's letter stated that the applicant provided Mr Zhang with the date he first attended St Dominic's Catholic Church Flemington (early 2015);
b)at hearing the applicant indicated he became a genuine Catholic when baptised on 15 April 2017, over a year after lodging his protection visa application. The Tribunal noted that when asked at hearing if he went to Church merely so he could apply for protection, the applicant answered "not really". The Tribunal considered this indicated some ambivalence regarding his reasons for attending the Church;
c)the applicant's protection visa application stated that he started attending St Dominic's in 2007, but that the applicant did not mention this at hearing;
d)at hearing the applicant said he was too young to understand Catholicism before 2015 (at the age of 26). The Tribunal was not persuaded that the applicant's reason for not engaging in Catholic practice prior to 2015 was because he was too young. The Tribunal found this evidence may indicate that he was not a Catholic until the option was introduced to him by Mingxing Wang;
e)the Tribunal asked the applicant at hearing why it should be satisfied that he is a genuine Catholic, and the applicant merely indicated that what he had said had been spoken from the heart. The Tribunal was satisfied that the applicant had been given ample opportunity at hearing to express why it should be satisfied he is and has been a genuine Catholic; however found his evidence on this issue unpersuasive; and
f)the applicant could not remember the name of his Church at interview with the Minister’s Department, which he claimed was because of his lack of English; the Tribunal noted at [53] that St Dominic's was referred to in his own written visa application.
[13] at [49].
The Tribunal noted that it was the applicant's evidence at hearing was that he knew more about Christianity now than when he was interviewed by the delegate, and the Tribunal accepted this may be the case. While the Tribunal accepted the applicant had been baptised, had been able to provide photographic evidence indicating he has attended Mass at St Dominic's, had been attending St Dominic's and that Mr Zhang believed the applicant to be an active member within the Church community, the Tribunal formed the view at [53] that he had attended the Catholic Church in Australia solely for the purpose of making his protection visa application and achieving his preferred migration outcome.
The Tribunal noted it was the applicant's evidence that he did not approach the Minister’s Department and inform it that he was afraid of returning to China during the seven years he remained in Australia unlawfully because he was not aware of protection visas. The Tribunal noted at [50] that its understanding was that the protection programme is well known amongst the Chinese community and the St Dominic's community, and given the applicant's claim to have first attended St Dominic's in 2007, his claim to have not known about protection visas until 2015 was unpersuasive and disingenuous. The Tribunal further found that the applicant's evidence to the delegate that he did not apply for protection after his student visa expired because he wanted to return to China to see his family contradicted his evidence to the Tribunal that he was unaware of protection visas. The Tribunal noted at [51] that when this contradiction was put to him at hearing the applicant responded that he did not understand why he said that [to the delegate].
The Tribunal found at [51] that the applicant had not been able to adequately explain the significant delay in his application for protection and formed the view that he did not apply for protection before 2015 because he wanted to remain in Australia to work.
The Tribunal found it highly unlikely that the applicant's siblings would have been detained for three months merely for being present during his mother's relatively small underground gathering, noting this claim was not consistent with the 2017 DFAT[14] country information report. The Tribunal was of the view, at [52], that the applicant manufactured this claim in order to justify his decision to remain in Australia after he ceased studying in 2007 until 2015 when he applied for a protection visa.
[14] Department of Foreign Affairs and Trade.
The Tribunal was not satisfied that the applicant was a witness of truth. The Tribunal did not accept any of the applicant's claims relating to his Catholicism and his family's experiences in China. At [54], the Tribunal found that the applicant was able to depart China lawfully on two occasions because he was of no adverse interest to the authorities and that his claim to be "blacklisted" by the Chinese authorities was unconvincing and was of the view that the applicant manufactured all these claims.
The Tribunal did not accept at [54] that the applicant would have to deny being a Catholic if he returns to China because it was not satisfied he is a genuine Catholic.
The Tribunal noted it had considered all the applicant's written and oral evidence and was not satisfied the applicant was a genuine Catholic; would practise any religion if he returns to China; or believes he will be persecuted if he returns to China. Nor was the Tribunal satisfied that the applicant or any member of his family had participated or would participate in any religious activity or conduct that would result in arrest or harm. The Tribunal found that the applicant came to Australia to work and achieve his preferred migration outcome, permanent residence in Australia. Accordingly the Tribunal was not satisfied the applicant had a well-founded fear of persecution for reason of his religion or any other reason set out in the Migration Act, or that there is a real chance he would be persecuted for one or more of those reasons. The Tribunal found that the real chance of persecution related to all areas of China. The Tribunal was not satisfied at [56] that the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act.
As the Tribunal was not satisfied the applicant was a genuine adherent of the Catholic faith; that there was any reliable evidence to suggest he would be of adverse interest to the authorities or suffer any harm if he returned to China; or that he or his family had suffered harm in China; the Tribunal was not satisfied at [59] there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there was a real risk he would suffer significant harm. Accordingly, the Tribunal was not satisfied at [60] that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act.
These proceedings began with a show cause application filed on 29 July 2019. The grounds in that application are:
I meet the protection obligation under s.36(2)(a) of the Act. The AAT decision is not a correct and fair. And also the decision have a jurisdiction error.
(errors in original)
The grounds are repeated in a short affidavit filed with the application, which I received as a submission. The only evidence I have before me is the court book filed on 10 October 2019.
The applicant’s challenge to the Tribunal decision is expressed in very general terms. I invited oral submissions from the applicant this morning. He had had a number of concerns. The first is that the Minister’s submissions at [24.3] relied upon old cases which were out of date. The better view, probably, is that the cases referred to at that point in the Minister’s submissions have limited, if any, relevance. Those decisions bear on the question of the Tribunal’s entitlement to test the veracity of religious faith. While the Tribunal is entitled to question an applicant about his or her knowledge of religious issues, the Tribunal is not entitled to set itself up as the arbiter of religious faith. In the present case, there were more general and diverse credibility concerns impacting upon the Tribunal decision.
The applicant was also concerned about the Tribunal’s use of country information. The applicant asserts that the Tribunal preferred Chinese Government propaganda to his own evidence. The Tribunal, at [31], identified relevant country information as set out in a report from DFAT. The Tribunal applied that information at [52] of its reasons. The Tribunal was entitled to identify and apply the country information it saw as relevant. That information was a report from an Australian Government entity, rather than the Chinese Government. Accordingly, I disagree with the applicant’s contention.
In other respects, I agree with the Minister’s submissions concerning the grounds of review advanced.
The applicant's ground is not capable of establishing jurisdictional error and that the applicant simply seeks to invite the Court to undertake impermissible merits review.[15]
[15] see Abebe v Commonwealth of Australia [1999] HCA 14 at [53]-[54] per Gleeson CJ and McHugh J.
There was no error of law on the part of the Tribunal. Similarly, the Tribunal complied with its procedural fairness obligations under Division 4, Part 7 of the Migration Act.
The applicant was invited to, and did, appear before the Tribunal pursuant to s.425 of the Migration Act. The applicant was on notice from the delegate's decision of the dispositive issues in the review, which centred on the credibility of his claims.
The Tribunal provided the applicant with the opportunity to comment on or respond to information regarding information before it about offshore remittances, pursuant to s.424AA; considered the applicant’s response; and ultimately made no adverse findings on the basis of that information.
At [50] of its decision record, the Tribunal relied on it its own knowledge in support of its finding that it was highly unlikely the applicant would not have been aware of protection visas until 2015, as claimed. The Tribunal is entitled to rely on its own knowledge and expertise, including the "store of knowledge and experience built up over numerous cases",[16] so long as the applicant is given the opportunity of commenting on those observations in the context of his claims.[17] The Tribunal clearly states in its decision record at [23] that it explained to the applicant at hearing that the protection program is well known by the Chinese community and that on his own evidence he first had exposure to the Catholic Church while studying in Australia in 2007; however the applicant was "emphatic" that he was not aware of protection visas until 2015. Accordingly, the Tribunal discharged its obligation to give the applicant an opportunity to comment on these observations in the context of his claims.
[16] SZMEQ v Minister for Immigration & Anor [2008] FMCA 1316 at [70].
[17] NAEH of 2002 v Minister for Immigration [2002] FCA 927 at [13].
The applicant’s claim, in brief, was that he feared harm on the basis of his family’s participation in an underground Catholic church in China and his Christian faith as observed during his stay in Australia. The Tribunal, having considered the totality of the applicant’s oral and written evidence, was not satisfied that the applicant was a genuine Catholic or would practice any religion if he returns to China. Nor was it satisfied that the applicant or any member of his family had, or would participate, in any religious activity that would result in arrest or harm. Rather, the Tribunal formed the view that the applicant came to Australia to work and achieve his preferred migration outcome, being permanent residence in Australia.
The Tribunal’s findings regarding the applicant’s credibility and his claims were open on the evidence and that the Tribunal provided a rational basis for those findings and took into account considerations which were relevant and logically probative to determining whether the applicant was a person to whom Australia owed protection obligations.
In light of the Tribunal’s findings, it is well established that the Tribunal is not required to accept uncritically the claims made by the applicant and does not need to first possess rebutting evidence before considering that a particular assertion is not made out.[18]
[18] see Randhawa v Minister for Immigration [1994] FCA 1253 at [21] per Beaumont J and Selvadurai v Minister for Immigration [1994] FCA 1105 at [7] per Heerey J.
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 February 2020
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