DGZ17 v Minister for Immigration

[2018] FCCA 119

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 119

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

Legislation:

Migration Act 1958 (Cth)

Applicant: DGZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 702 of 2017

Judgment of: Judge Vasta

Hearing date: 16 January 2018

Date of Last Submission: 16 January 2018

Delivered at: Brisbane

Delivered on: 16 January 2018

REPRESENTATION

The Applicant appearing on their own behalf with an interpreter

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application filed on 21 July 2017 be dismissed.

2. The Applicant pay the First Respondent’s cost of and incidental fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 702 of 2017

DGZ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application dated 21 July 2017, the Applicant, DGZ17, has asked this Court to review a decision of the Administrative Appeals Tribunal given on 26 June 2017.  That decision affirmed a previous decision by the Delegate of the Minister not to grant the Applicant a protection visa. 

2. The facts of this matter are somewhat lengthy.  The Applicant first came to Australia in 2009 on a student visa.  She studied a number of courses but, on 17 November 2011, her student visa was cancelled.  It seems it was cancelled because of poor academic performance. 

3. The Applicant wanted that decision reviewed, and ultimately the then Migration Review Tribunal set aside the cancellation on 12 November 2012.  The Applicant was granted a further student visa on 15 January 2013.  That visa ceased on 23 November 2015. 

4. On 3 March 2016, the Applicant made this present application for a protection visa.

5. It is not contested that since arriving in Australia in 2009, the Applicant has departed and re-entered Australia on four occasions.  In making her claims for protection, the Applicant has pointed to her faith, that is, her faith in the religion known as I-Kuan-Tao, or abbreviated IKT. 

6. That religion is not a legal religion in China.  Practitioners of that religion have in the past been discriminated and persecuted.  The Applicant, in her statement of claim, said that her father was a practitioner of this religion and he taught her the religion.  She said that she was from a broken home and later, when she got older, discovered that the reason for the breakup of her parents was the father’s adherence to his religion to which his mother, in effect, disowned him.

7. The Applicant said that she followed that religion, probably in some ways more closely, because her father really showed her that this was the correct path.  This did put her on a collision course with her mother, who, at that stage, wanted nothing to do with the religion. 

8. The Applicant said it was her mother’s idea that she leave China to study in Australia, and she now attributes this motive to her mother’s actions of wanting her to get away from her father and get away from the religion.  The Applicant says that, notwithstanding whether that was true or not, she remained devoted to the religion. 

9. She went back to China in December 2010.  This was because of the illness of her father.  It would seem from the evidence that was put before the AAT, that the father actually passed away on 20 December 2010.  The Applicant returned to Australia and, as I have previously recounted, the visa cancellation occurred because of the failing grades.

10. The Applicant said that after this time she tried to, in effect, reconcile the religious beliefs that she had with her mother, and on visits to China had brought her more books and other articles about the teachings of IKT.  All of this seemed to work, because the mother ended up, in effect, converting to IKT and building or constructing some form of temple or altar in her house, where she (the mother) and other friends of hers would be able to pray using the teachings and techniques carried down from IKT. 

11. The Applicant says that the mother visited the gravesite of the father and left some material at the gravesite which indicated an acceptance or belief in IKT.  The Applicant claims that this action was seen by someone who reported the matter to the authorities.  The Applicant said that the mother’s house was then the subject of a search by the authorities.  It does not seem that much else happened other than the coming into the house and some form of warning about the perils of practicing this religion.

12. The Applicant now says that she does not feel that she could go back to China and practice her religion in the way that she wishes to without being the subject of persecution. 

13. Those claims were thoroughly assessed by the AAT.  The reasons are some 27 pages long and there has been a very thorough exposition of these claims.  The hearing occurred on two separate days.  The Applicant was given a number of opportunities to put material and more material before the Tribunal.  Eventually the Tribunal did affirm the previous decision of the Delegate.

14. There were certain areas that the Tribunal looked at, some with more importance than others.  One of those matters was that the Applicant claimed to have been a very devout follower of IKT when she arrived in Australia.  However, it seems that she did not seek out a temple or any other place of worship for IKT when she first came to Australia and lived in Sydney and then when she moved to Brisbane.  It was not until 2015 that she found a temple and started worshipping at that temple.

15. The Applicant says that it was through grief of her father’s death that led her to become somewhat unable to concentrate and led to the fact that she performed badly at her chosen studies, which ultimately led to the cancellation of her visa. 

16. However, when the Tribunal looked back at the Migration Review Tribunal’s decision in relation to the student visa and looked at the decision, there was no mention whatsoever of the death of the father affecting the Applicant.  There was no mention at all that the father had died and had let alone any suggestion that this had been a major catalyst in why it was that she was failing her subjects.

17. This aspect took on a life of its own when the Applicant insisted that she had mentioned that matter at the Migration Review Tribunal.  While she was given time to find documents that would corroborate her claim, the Administrative Appeals Tribunal looked at the whole file.  There were no references at all to the death of her father.

18. The Applicant insisted that she had mentioned this and had given a copy of the death certificate to the MRT.  She gave to the Tribunal a copy of a text conversation that she had had with the lawyer who had represented her who claimed that he remembered that something like that was said, but, because he no longer worked at the law firm, he could not confirm whether it was said. 

19. The Applicant said that she tried to get in touch with the law firm, but they would not assist her, and instead she just passed the phone number of the lawyers onto the Administrative Appeals Tribunal.  Of course, as the Tribunal also noted, it is not the job of the Tribunal to try and make the Applicant’s case for her.

20. One of the very bizarre things though was that the Applicant had, in effect, said that she had given her copy of the death certificate to the lawyer and that was it.  At paragraph 59, the Tribunal spoke of this aspect when it said:

    “The Tribunal confirmed again with the Applicant that a copy of her father’s death certificate was not on the Tribunal file in relation to the student visa cancellation, that the issue was not with respect to the date of his death, and that it would expect that she would hold her own copy of the death certificate as opposed to having provided her former solicitor with her only copy.”

21. That was a very telling observation against the Applicant.  However, in this Court, she had claimed to me that she did have the original of the death certificate and had never given that to anyone else but had only given a copy to the solicitor. 

22. I found that statement by her to be inherently incredible, because it is quite clear from the way in which paragraph 59 has been written that this was something that the Tribunal had actually put to the Applicant. 

23. If the Applicant had answered in the way that she had answered me, then there would have been a note of that in the decision itself.  The absence of such a notation indicates that such a state of affairs was never made known to the Administrative Appeals Tribunal and further strengthens the conclusion of the AAT that this aspect of the claim damages her credibility irreparably.

24. The Applicant also gave other evidence that in 2015 she was in such a depression that she did not go outside of her flat for several months and that she lived solely on instant noodles.  The Applicant did clarify what it was that she meant when she said that, though the AAT did not seem to think much of that explanation.

25. The Tribunal also had concerns regarding the genuine nature of the Applicant’s faith.  The AAT noted that her faith in IKT was not mentioned at all during the student visa cancellation hearings.  It seemed to the AAT that she only started attending a temple after she had dropped out of her classes, which would have meant that her student visa would obviously be cancelled in the near future.  The Tribunal was of the view that the Applicant had, at the very least, intensified her involvement in IKT in Australia since it would have become obvious to her that the basis upon which she was staying in this country was no longer applicable.

26. The Tribunal could not reconcile her delay in making an application for a protection visa for more than six years since first entering Australia with her now-adamant belief that she will be persecuted if she is returned to China. 

27. Whilst the Tribunal looked at quite a lot of country information, the Tribunal came to the conclusion that, whilst IKT remains officially prohibited in China, there is quite a deal of information that shows that there is about two million adherents to IKT in China and that the information that is coming out of China does not indicate any widespread persecution of such followers.

28. The AAT also noted that IKT seems to have a very strong foothold in Taiwan and that, if there were widespread or even quite prominent examples of persecution of persons practicing IKT in mainland China, such would be known to the Taiwan branch of IKT and that this would become, as it were, very well-known within those circles.  The fact that there is nothing coming out of the free Taiwanese media about IKT persecution in China is significant, according to the AAT.

29. Whilst there is always a chance that there will be a crackdown, such a chance is a remote chance and not a real chance.  On the basis of that, the Tribunal was not satisfied that there was a real chance that the Applicant would be harmed by the Chinese authorities because of her religion. 

30. The Tribunal also noted that the Applicant had travelled to China through Hong Kong with IKT literature and there was no problem. The Applicant says that it was pure luck that the Chinese authorities did not detect this literature on her during her travels and that she cannot rely on pure luck next time.

31. The Tribunal made the very pertinent observation that, if someone had a real and well-founded fear of persecution, they would not risk such travel to China on pure luck. 

32. All in all, the Tribunal then looked at both the complementary protection criteria and the refugee protection criteria and found that the Applicant did not satisfy those, and so therefore affirmed the decision.

33. In the application before the Court, the Applicant has said this:

    “The verdict of the Refugee Review Tribunal [sic] on my application on 26 June 2016 is apparently against the principle of procedural justice by neglecting the following essential evidences and my accounts for them in and after the hearing I have truthfully submitted.  The copies of the telephone communications between my previous lawyers and me in verifying my father’s death certificate in my MRT case.  The collective donation receipts I have made in Tao’s temple in various stage.  The internet chatting records between my father and me.  The video record demonstrating my religion role plays in the Tao’s temple.”

34. Then another paragraph:

    “AAT has neglected all the oral and written statements and my tremendous efforts in cooperating with all the questions and inquiries made by the Tribunal.  AAT made a reckless decision soon after the hearing without granting me a fair go by inviting the necessary comment on the disreputable questions.  AAT made an imprudent decision by referring inadequate country information which is unable to reflect the truth and reality in my origin.  AATs arrogant and impatient attitude towards me has made me stressful and strengthen my psychological pressure.”

35. None of those matters actually is a ground for review, or is demonstrating any jurisdictional error made by the Tribunal.  What the Applicant is saying is that the matters that the AAT considered were considered, but not considered in her favour and for that she is somewhat aggrieved. 

36. However, that, as I said at the beginning of this hearing today, is not the test at all.  It is whether there has been a mistake.  The AAT did consider all of those matters.  They considered the telephone communications between the previous lawyers and the Applicant, but that really did not bring the matter in favour of the Applicant.

37. They did consider the collective donation receipts. That aspect relates to the fact that the Applicant had originally talked about the work that she had been doing with the temple, and that now that she is working and has a part-time job she has been making donations. She had said to the Tribunal that she had not made any donations before she made her application for the protection visa because she was poor, did not have any money and had not been working. That claim was made at the first hearing.

38. At the second hearing, it was put to the Applicant by the Tribunal that she only started making donations after her application was submitted and the donations were there to ensure that her devotion to the religion had the appropriate appearances.  She then said that she had made donations before she had started the process of making this application. 

39. She then was able, after an adjournment, to produce two receipts showing donations that occurred in December 2015.  The Tribunal ended up dismissing those matters because they were not produced to start with and now that evidence of donations would fly in the face of what she had said at the first hearing.

40. The Tribunal came to the conclusion that those records or donation receipts, however it wants to be described, were, in fact, fraudulently created.  Such was a matter that was within the purview of the Tribunal, even though some may think that such a conclusion was somewhat heavy-handed.  Nevertheless, it was within their purview.  The fact is when one looks at this application, it cannot be said that the Tribunal ignored the donation receipts.  It quite properly looked at those donation receipts, but did not accept them.

41. The Tribunal has accepted the internet chatting records between the father and the Applicant, and has had a look at the video record demonstrating the religious role.  Such is noted in the reasons.  There is no evidence that the AAT has neglected or dismissed or not considered any of the oral and written statements of the Applicant.  They just have not accepted them as being truthful. 

42. It could hardly be said that the AAT has made a reckless decision with regard to the application because there were many opportunities and adjournments given to the Applicant to come to, and to give to, the Tribunal whatever material she wished.

43. The decision could never be regarded as imprudent because all of the country information that was at hand was looked at, including the information that the Applicant had, and the Applicant had the opportunity to put more country information before the Tribunal, but did not.  In those circumstances, it is hard to see that this was an imprudent decision. 

44. There has been no evidence put before this Court to show that the AAT had an arrogant or impatient attitude towards the Applicant.  If anything, it seems when one reads the reasons and looks at the chronology of the hearing that they have bent over backwards to enable her to put whatever it is that she wishes to put before the Tribunal.

45. There are some other statements that have been made on the application, namely, these:

    “I came to Australia on my student visa from China in 2009.  Affected by my father, I have converted to I-Kuan-Tao (Tao) faith when I was young.  Growing in a broken family background, I was great beneficial from Tao faith and I treat my religion as spiritual pillar in life.

    I have been spared no effort to pursue my religion before and after arriving in Australia via home and public altar practice which support my poor psychological condition, especially when I was trapped in setback and difficulties.

    I fulfil my commitment in religious spreading and missionary works.  I have strong, enthusiasm in developing my faith as it is the eternal hope and non-replaceable thing in my life.

    With commitment in my religion, my genuine faith can be evidenced by the temple fellowship and my role play is appreciated and demanded by my religious contacts.

    As committed convert of Tao, I have strong fear of being oppressed, persecuted and life challenged if returned to my origin in China for Tao practice still remain illegal status and is repressed by government without forgiveness.  With strong purpose and commitment in faith, I wish to be protected by Australian Government and contribute to my temple as enthusiastic role model and Australian society as a whole.”

46. None of those is actually a ground of application.  None of those shows any jurisdictional error.  Rather, it is a plea to the Court to, as it were, ignore what the Court’s duty is and to take sympathy into account when looking at this matter.  Of course, such an approach is quite impermissible. 

47. As to the fear that she has, the Tribunal did look at this through the country information and came to the conclusion that it has, that there was no real chance of the Applicant suffering the sorts of persecution that she fears and her four trips previously to China are somewhat illustrative of this fact.

48. So going through the very thorough decision of the AAT, I am of the view that there has been no jurisdictional error found.  I, therefore, dismiss the application and order costs fixed in the sum of $5800.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  3 April 2018