DEU16 v Minister for Home Affairs

[2019] FCCA 1384

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEU16 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1384

Catchwords:
MIGRATION – Protection (Class XA) visa – applicant alleges Christian faith – applicant fears returning to China due to the faith – religious practice outside of the Patriotic Church.

Legislation:

Migration Act 1958 (Cth) s 5AAA, 36(2)(aa), 426A(1A)(a).

Applicant: DEU16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2320 of 2016

Judgment of: Judge McNab

Hearing date: 20 May 2019

Date of Last Submission: 20 May 2019

Delivered at: Melbourne

Delivered on: 20 May 2019

REPRESENTATION

The applicant appearing in person

Solicitors for the Respondent: Ms Elliott

ORDERS

1. The application be dismissed.

2. The applicant pay the First Respondent’s costs fixed in the sum of $5,000.

3. The name of the First Respondent be amended to Minister for Home Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2320 of 2016

DEU16

Applicant

And

MINSITER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EXTEMPORE – REVISED FROM TRANSCRIPT)

Background

1. By an application filed on 26 October 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 11 October 2016.

2. That decision affirmed a decision made by a delegate of the First Respondent to refuse to grant the applicant a Protection (Class XA) visa. The Tribunal notes that at [22] of its decision record that the applicant’s protection includes the following claims:

   One of her relatives is a Christian and preached to her often

   Her aunt’s house church had no regular venue to conduct services so they were often conducted at a brother or sister’s home and sometimes at the applicant’s home

   The local government authorities have refused to acknowledge her aunt’s house church and have forced her (the aunt) to join the Patriotic Church

   A gathering was being held at her home (applicant’s) and the police raided, resulting in her aunt being arrested and taken to the police station

   The local government labelled the applicant’s house church as a ‘cult’ and she was warned that if she continued to have contact with her aunt then she would be arrested

   The applicant experienced continuous harassment at her home after her aunt was released and decided to travel abroad

   Since the applicant arrived in Australia her family have told her that the local police have not ceased harassing her family and requested that they notify the police if the applicant returns

   The applicant’s aunt has continued with her beliefs and warned the applicant not to return to China as she is concerned for the applicant’s safety and she (the applicant) would be at risk because of her religion

3. The claims made by the applicant, which are paraphrased accurately by the Tribunal, are set out in the applicant’s statement which accompanies her protection visa application: court book 28.

4. The applicant was invited, but did not attend, a visa interview on 6 August 2015.

5. On 14 December 2015, a delegate of the First Respondent refused to grant the applicant the protection visa.

6. On 21 December 2015, the applicant applied to the Tribunal for review of the delegate’s decision. In making that application, the applicant requested the Tribunal to send correspondence to an address in Western Australia.

7. There was provision in the form for the applicant to provide an email address but she did not provide one. The applicant further ticked the box under the heading ‘Communication by Email’ indicating that she did not agree to the Tribunal sending correspondence to her by email.

8. On 26 August 2016, the Tribunal wrote to the applicant in a letter delivered to the address that she provided to the Tribunal advising:

   We have considered the material before us but we are unable to make a favourable decision on this decision alone.

   You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case.

9. The letter further noted the hearing date was 3 October 2016, of which the applicant did not attend.

10. The Tribunal noted at [24] of the decision record that:

    The applicant’s claims are vague and lacking in detail.

11. At [25] of the decision record, the Tribunal referred to section 5AAA of the Migration Act 1958 (Cth) (‘the Act’). It noted that:

    Section 5AAA makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.

    In my view, there is no error discernible in the Tribunal’s view of the operation of section 5AAA of the Act.

12. The Tribunal further states at [26] of the decision record:

    The applicant did not attend the Tribunal hearing despite being advised the Tribunal had considered all the material before it in relation to her application but it was unable to make a favourable decision on that information alone. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with her and sought further information from her on a range of details relevant to her claims. As an example, the applicant provided no details of the harassment which she claims to have suffered. Also, she did not explain why the local authorities had considered her aunt’s house church to be a ‘cult’. Further, the applicant provided no details of any church she might have attended while in Australia.

13. The Tribunal concluded at [28] of the decision record that the evidence  provided by the applicant did not provide a basis for concluding that the applicant had been persecuted in China due to her Christian beliefs. The Tribunal found that the applicant does not face a real chance of persecution amounting to serious harm from local government authorities in Jilin, China, due to her wish to practice her Christian religion independent of the Patriotic Church and in a house of church environment.

14. The Tribunal considered the complementary protections and was not satisfied that the applicant is a person whom Australia has protection obligations. Finding that the applicant would not face a real risk of significant harm upon return to China, the Tribunal concluded that the applicant did not meet the criteria for a visa under section 36(2)(aa) of the Act.

Grounds of review

1. In proceedings before this Court, the applicant’s grounds of review were as follows, and I am reading from the applicant’s grounds of application exactly:

   (1)I don’t think the DIBP and AATs decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

   (2)DIBP and AAT failed to prudently consider my risk due to my commitment of paralysing if I return to origin.

   (3)AAT failed to consider my statements provided in supporting my claim as a whole.

2. Under the heading ‘Grounds of the Application’ the applicant stated:

   The grounds of the application are:

   (1)I am a Chinese citizen and have faithful and committed Christian faith. I have strong fears by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.

   (2)I have been actively involved in church actives. My action and religious performance have been evidenced by church elder with reference.

   (3)AAT unreasonable suspect of truthfulness of my claims just because of the absence of the evidence.

3. The applicant has not provided any evidence from a church elder regarding her involvement in church activities in Australia, despite claiming to have been attending church. She has not filed any statement by a Church elder regarding her attendance at Church outside of Australia either.

4. With respect to ground 3, the Tribunal referred to the applicant’s claims and made specific reference at [22] and [26] of the decision record.

Consideration

1. I am of the view that it was open for the Tribunal to make the decision it made, particularly in circumstances where it had specifically invited the applicant to attend a hearing in order to address concerns about the claims. Given that the applicant failed to attend the hearing and provided no explanation for not appearing, the Tribunal was entitled to proceed pursuant to section 426A(1A)(a) of the Act. It was appropriate in these circumstances for the Tribunal to make a decision on the review without taking further action to allow or enable the applicant to appear before it.

2. I note that Registrar Ryan made orders on 26 April 2017. Registrar Ryan made provision for the applicant to file an amended application, affidavits, written submissions or a supplementary court book. The applicant did not exercise these rights.

3. When the applicant appeared before the Court today, she made a submission that she did not wish to return to China for fear of risk of persecution in China.

4. In my view, the Tribunal’s decision is not attended by any jurisdictional error. The Tribunal’s decision, in relation to the claims made by the applicant and in particular the lack of particulars or specific examples of harassment, are not attended by legal unreasonableness.

5. No error is apparent in the decision of the Tribunal, and in those circumstances, the Court dismisses the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 20 May 2019