DGK16 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DGK16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1462
Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the Applicant’s fear of harm in China for religious reasons – Administrative Appeals Tribunal did not believe applicant and made adverse credibility findings – applicant claimed denial of procedural fairness and legal unreasonableness constituting jurisdictional error affected the adverse decision of the Administrative Appeals Tribunal- Grounds not made out – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 137J, 424, 424A, 425

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
BAZ15 v Minister for Immigration [2018] FCA 230
BLO15 v Minister for Immigration & Border Protection [2017] FCA 1092
BTU18 v Minister for Home Affairs [2019] FCA 540
CPW16 v Minister for Immigration & Border Protection [2017] FCA 1210
Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Smith v NSW Bar Association (1992) 176 CLR 256
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZFWB v Minister for Immigration & Citizenship [2007] FCA 167
SZNVX v Minister for Immigration (2009) 112 ALD 475
SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
Westlake v Attorney-General of the Commonwealth [2017] FCA 1058

Applicant: DGK16
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 3009 of 2016
Judgment of: Judge Dowdy
Hearing date: 10 May 2018
Date of Last Submission: 30 May 2018
Delivered at: Sydney
Delivered on: 31 May 2019

REPRESENTATION

Counsel for the Applicant: Mr N. Dobbie
Solicitors for the Applicant: Dobbie and Devine Immigration Lawyers Pty Ltd
Counsel for the First Respondent: Mr J. Kay-Hoyle of Counsel
Solicitors for the First Respondent: HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

  1. The Amended Application filed in this Court on 27 February 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3009 of 2016

DGK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The Applicant in this proceeding is a male citizen of China aged 26 years, having been born on 22 November 1992.

  2. By Amended Application filed in…

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Details
Case
[2019] FCCA 1462
Decision Date

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that affirmed the Minister for Immigration's refusal to grant a protection visa. The applicant's claim for protection was based on a fear of harm in China due to religious reasons. The AAT had made adverse credibility findings against the applicant, disbelieving their account.

The applicant contended that the AAT's decision involved jurisdictional error, specifically alleging a denial of procedural fairness and that the decision was legally unreasonable. The court was required to determine whether these grounds were made out and, if so, whether they vitiated the AAT's decision. The core of the dispute revolved around the AAT's assessment of the applicant's credibility and the legal sufficiency of its findings in relation to the criteria for a protection visa.

Dowdy J dismissed the application for judicial review, finding no jurisdictional error. The court noted that for a protection visa to be granted, the Minister must be satisfied that the applicant meets either the Refugee Criterion (s 36(2)(a) of the Migration Act 1958 (Cth)) or the Complementary Protection Criterion (s 36(2)(aa) of the Migration Act 1958 (Cth)). The Refugee Criterion requires a well-founded fear of persecution for reasons of religion, among other grounds, while the Complementary Protection Criterion requires substantial grounds for believing there is a real risk of significant harm upon removal. The court acknowledged the historical context of the persecution of Yi-Guan-Dao practitioners in China, as outlined in the Delegate's decision, but ultimately found that the applicant's claims did not establish a denial of procedural fairness or legal unreasonableness on the part of the AAT.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Applicant’s Protection visa application also included a statutory declaration dated 11 April 2016 made by Sister Alice (but in reality more a written statement than technically a statutory declaration) which stated that she was “a clergy of JiRu Buddhist Temple” and that the Applicant was “a pious Tian Dao Cultivator” and proselytiser. There were also submitted at the same time two further statutory declarations which spoke of the Applicant’s connection with the JiRu temple and of him being an actively involved practitioner of Yi-Guan-Dao at the JiRu temple (collectively, statutory declarations). A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; .... The Applicant attended an interview with the Delegate on 30 June 2016 together with his migration agent. I note that at the hearing in this Court it was agreed by Mr Dobbie, who appeared for the Applicant, and Mr Kay-Hoyle of Counsel, who appeared for the Minister, that the following paragraph from the Decision Record of the Delegate sufficiently set forth for present purposes the relevant facts concerning the Yi-Guan-Dao religion:In 1950, [Yi-Guan-Dao] was branded and vilified as a cult by the Chinese Communist Party. In October 1950, the Chinese Communist Party proclaimed that [Yi-Guan-Dao] was a reactionary religious organisation with the intent to overthrow the new government. A public campaign was staged to disband and crack down on [Yi-Guan-Dao] practitioners. Numerous senior [Yi-Guan-Dao] members were sentenced to death without a trial taking place. Ordinary [Yi-Guan-Dao] members were sentenced to fixed term imprisonment of not then less than three years. By the end of 1952, a total of 2.4 million [Yi-Guan-Dao] cultivators were supressed. Currently [Yi-Guan-Dao] is identified as a reactionary sect using feudalism and superstition to subvert the government.