CXW16 v Minister for Immigration

[2018] FCCA 947

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXW16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 947

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1), 36(2)(a),(aa), 36(2A), 36(2B)

First Applicant: CXW16

Second Applicant: CXY16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 927 of 2016

Judgment of: Judge Egan

Hearing date: 9 April 2018

Date of Last Submission: 9 April 2018

Delivered at: Brisbane

Delivered on: 9 April 2018

REPRESENTATION

First Applicant: In person

Second Applicant: In person

Counsel for the Respondents: Mr Galloway

Solicitors for the Respondents: Minter Ellison Lawyers

ORDERS

1. That the application be dismissed.

2. That the Applicants pay the first Respondent’s costs fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 927 of 2016

CXW16

First Applicant

CXY16

Second Applicant

And

MINISTOR FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application for review of a decision of the Administrative Appeals (AAT) handed down on 9 September 2016. That was a decision which reaffirmed a decision earlier made by a delegate of the Minister for Immigration on 6 May 2016 refusing an application for the grant to the Applicants of protection visas pursuant to s.65 of the Migration Act 1958 (the Act).  The Applicants arrived in Australia in August 2015 and applied for protection visas on 20 November 2015.  The Applicants claimed to be citizens of the People’s Republic of China.  The application for review of the decision of the Administrative Appeals AAT was filed on 21 November 2016. 

2. The grounds of the application appear on the last page of the application as filed.  There is only one ground, namely, that the Refugee Review AAT fell into jurisdictional error in its finding that the Applicant was not a credible witness.  It then went on to particularise such allegation.  It seems to me that the application is defective because it seeks to require me to conduct a merits review of earlier proceedings, something which I do not have jurisdiction to do.  Indeed, I consider that the particulars to the ground of application included in the schedule do no more than seek to assert that, contrary to the findings of the AAT, the Applicants were witnesses of credit.

3. As indicated, the grounds of the application for review are defective, and the matter ought to be dismissed on that ground alone. It is apparent from a reading of the decision of the AAT, that the AAT has conducted a thorough examination of the evidence and has arrived at its decision in a reasoned and credible manner. The AAT first referred to s.5J(1) of the Act when setting out how a person is assessed as either having or not having a well-founded fear of persecution. The AAT accurately set out the provisions of the Act and the relevant considerations in that regard.

4. The AAT also relevantly set out the considerations relevant to ss.36(2)(a), 36(2)(aa), 36(2A) and 36(2B) of the Act. The AAT did not err when properly addressing relevant considerations in that regard. As to the factual matters raised before the AAT, the AAT recorded that the male first Applicant claimed that he found a Christian pamphlet whilst taking public transport in China as a passenger in 2011. He was recorded as having asserted that he had struck up a conversation with a person called “Elder Li” who was said to be a member of an underground Christian church.

5. The male Applicant, initially, asserted before the AAT that he felt lucky to have found God and that he studied the Bible daily.  The male Applicant stated that, on 1 May 2015 at 6.00pm, he arrived at Elder Li’s house to attend an underground meeting of the Christian church.  Halfway through the meeting, the Applicant alleged that policemen broke down the door to the dwelling and that he and four others were asked for identification.  The Applicant alleged that thereafter the five of them were taken to a police station where they were separated for interrogation and had their personal belongings confiscated. 

6. The interrogation was said by the Applicant to have lasted until past midnight.  The Applicant stated that his hands were in handcuffs and that an arm was injured during the course of interrogation.  He also asserted that the handcuffs had left marks on his wrist - not stating which wrist it was.  The Applicant alleged that, on 3 May 2015, he lost consciousness because of the pain.  The police were said by him to have called his wife who paid a fine whereupon the Applicant was allowed to leave, before being taken to hospital where he alleges that he stayed for two days.

7. He asserted that he and his wife decided to flee China for “faith and life”, presumably related to the alleged events relating to his interrogation at the police station.  It is recorded that in June 2015, the male Applicant and his wife went to Thailand, but returned to China shortly thereafter.  It was then recorded that on 25 August 2015, the male Applicant and his wife came to Australia “under the guidance of the Lord”.  It was recorded that the male Applicant had since allegedly attended a Chinese Christian church in Australia seven or eight times, but that he had not read the Bible because of his low education level.

8. The second Applicant is a female who claims to be the wife of the Applicant.  The AAT relevantly found that China was the male Applicant’s country of nationality.  When arriving at its decision, the AAT made a number of findings adverse to the male Applicant.   For example, the AAT found that, notwithstanding that the male Applicant had claimed that he read the Bible daily, he amended his claim to the delegate that he could not read the Bible daily because of his low level of education, and that he had never read the Bible.

9. The AAT found that the male Applicant had said that he had been baptised, and that he had said that there was a ceremony in about May 2012 where, after a gathering, a leader (unspecified) had put his hand in some water and then placed it on his head.  The AAT asked the Applicant how he had met his wife, whereupon the male Applicant said that he had met her by chance near a bus station.  The male Applicant went on to say that his wife was of the Christian faith, but that she is not a member of his group, nor that she had attended Elder Li’s gatherings.

10. The AAT recorded that it had asked the male Applicant about the male Applicant’s brother’s faith and his group.  The Applicant said that his brother was a member of a large Christian group in a capital city, but that his brother had not been subjected to assaults, intimidation or arrest.  The Applicant was unable to say why it was that his brother could be a member of such a large group, with thousands of members, and not be harassed, whereas his group, being a small group, had, in fact, been harassed.

11. The AAT referred to country information which was shared with the male Applicant.  That country information was to the effect that there were 23 million Protestants in China and 12 million Catholics in China.  It recorded that the State Administration for Religious Affairs permitted friends and family to hold small informal prayer meetings without registration.  House churches varied in size and practice.  Gatherings of 30 to 40 people were generally tolerated, although the Department of Foreign Affairs and Trade was aware of cases where gatherings of fewer people had attracted negative attention by authorities.

12. There were some house church congregations that numbered in the thousands that were able to operate with little to no interference from local authorities.  The AAT asked the male Applicant if his group was perceived to have had links with foreign influences or received foreign funding, to which the male Applicant replied in the negative.  He was also asked whether his group was critical of the government or did it advocate against the government, to which he, again, replied in the negative.

13. When asked whether members of his group engaged in criminal activities, the male Applicant also recorded his answer in the negative.  There were some inconsistencies recorded by the AAT concerning the male Applicant’s evidence.  For example, the AAT noted that the Applicant and his wife went to Thailand in June 2015, only five weeks after the applicant had allegedly been in hospital following his alleged interrogation, not “several months” after such incident.

14. The AAT asked about the Applicant’s attendance at a Chinese Christian church in Australia.  The male Applicant said that he had been there seven or eight times, notwithstanding the fact that the AAT also noted that the male Applicant had been, at the time of questioning, in Australia for over a year.  The AAT asked where the church was.  The Applicant tried to use his phone to find it.  He was asked where it was generally.  He said somewhere in Sunnybank.  He was asked what went on at the services.  He replied just sermons.  He was also asked who the minister was; his answer to which was that he was a “famous priest”. 

15. The female Applicant stated that, whilst in China, she had only met Elder Li once, and that she had not suffered any police harassment.  The AAT noted from her visa application that she had been arrested twice, and, when asked about that, the female Applicant said it related to her husband’s practice of Christianity.  She was asked had she been fined, and she said she had not been so fined.  She said that she had only paid a fine to have her husband released from police.  The second Applicant said that she had attended the Christian church in Australia about four or five times. 

16. The AAT discussed with the female Applicant why it was that her husband and she could not relocate to another part of China, presumably to escape what was alleged to be persecution, whereupon the female Applicant replied that, “They are against Christianity in China.”  The AAT made an adverse assessment of the evidence of the male Applicant, stating that he was vague when asked about where the church was, stating it was somewhere in Sunnybank.  There was an inconsistency between the number of attendances as related by the male applicant and those as related by the female Applicant.

17. In the AAT’s view, those factors and others pointed toward the male Applicant not being a genuine Christian practising Christianity, and the AAT did not accept the male Applicant’s evidence generally on that point.  As to the alleged events of 1 May 2015, the AAT did not accept that the events claimed to have occurred did take place.  It is not my role to conduct a merits review of the factual findings of the AAT, and, as indicated earlier, the grounds of the application for review, insofar as they relate to adverse findings against the male and female Applicants based on matters of credit, are without legal foundation. 

18. I find that the AAT has appropriately addressed all of the relevant considerations which ought to have been considered by it when considering the applications for review, and I find that there has been no jurisdictional error in that regard.  I, accordingly, affirm the decision of the AAT handed down as it was on 9 September 2016.  The application is refused. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 19 April 2018