DLG16 v Minister for Immigration

[2017] FCCA 1582

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1582

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – certificate issued under s.438 – where certificate not disclosed to applicant – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Applicant: DLG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3164 of 2016

Judgment of: Judge Street

Hearing date: 6 July 2017

Date of Last Submission: 6 July 2017

Delivered at: Sydney

Delivered on: 6 July 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3164 of 2016

DLG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision that the Administrative Appeals Tribunal (“the Tribunal”) made on 24 October 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China. The applicant arrived in Australia on 26 May 2013 as the holder of a Student Higher Education Sector (subclass 573) visa. That visa was due to cease on 10 September 2015. It was not until 1 May 2014 that the applicant lodged an application for protection.

3. The applicant claimed to fear harm because of a dispute with the secretary of the mayor and because of her religion. The delegate found the applicant was not a witness of truth and found that the applicant failed to meet the criteria for the grant of a protection visa.

The Tribunal’s decision

1. The applicant applied for review on 3 March 2015. On 30 January 2015, a certificate was issued under s.438 in respect of identity documents, and neither the identity documents nor the certificate were disclosed to the applicant. The Tribunal invited the applicant to attend a hearing on 12 July 2016. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the applicant’s background and correctly set out the relevant law. The Tribunal identified the applicant’s claims and evidence including the fact that from 2005 until 2011, she lived in France.

3. The Tribunal identified concerns in relation to the applicant’s credibility. The Tribunal noted the delay by the applicant lodging the application for protection in relation to those credibility concerns. The Tribunal also noted the student application by the applicant was false and that she was prepared to provide false information to the immigration officials and to be party to such action. Thirdly, the applicant claimed conversion to Christianity but had an inability to answer straightforward questions about Christianity. The Tribunal also made reference to the applicant’s travel to Japan.

4. Although the Tribunal was prepared to accept the applicant was baptised in Australia and attended services, the Tribunal was not satisfied on the evidence of the applicant’s beliefs, her experience, and knowledge of Christianity, that the applicant is a genuine adherent of Christianity. The Tribunal was not satisfied the applicant was involved in a church group in China, nor that the police attended and poked her with a stick, based on the vague evidence the applicant gave in that regard. The Tribunal was not satisfied the applicant is at real risk of significant harm if she returns to China because of any imputed belief in Christianity.

5. In relation to the student visa, the applicant freely admitted that the information and materials provided for that application were fabricated. The Tribunal found it was clear the applicant was prepared to provide dishonest information and is capable of deliberately misleading Australian immigration authorities. The Tribunal did not accept that the applicant became a Christian when she was living in France. The Tribunal did accept the applicant has been attending the Hillsong Church in Australia and that she had been baptised. However, the Tribunal was not satisfied that the applicant would continue to attend church should she return to China. The Tribunal found her responses in relation to her faith left very significant concerns about the genuineness of her beliefs. The Tribunal found that the applicant was not at real risk of significant harm if she returns to China because of any imputed beliefs in Christianity.

6. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied there is a real chance or a real risk of significant harm occurring to the applicant if she returns to China. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and found the applicant did not meet the criterion in s.36(2)(a) of the Act. The Tribunal also found the applicant did not meet the criterion in s.36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

1. On 23 March 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the Court would set aside the decision and send it back for further hearing. The Court explained if it was not satisfied the Tribunal’s decision was unlawful or unfair, the applicant’s application would be dismissed.

3. The Court explained that it would have identified the evidence and then hear submissions from the applicant, and then hear submissions from counsel for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

4. In the application under “Orders sought by Applicant” are the following four paragraphs:

   1, I don't think DIBP and AAT's 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, AAT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3, AAT failed to prudently consider my risk due to my commitment of paralyzing if I return to origin.

   4, AAT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

Submissions from the bar table

1. From the bar table, the applicant maintained that she had trouble expressing herself and that other people in her position had been successful in obtaining a visa. The applicant maintained that she had told the truth. The applicant maintained that she was a Christian and that she would practice Christianity on return to China. The applicant maintained that she was from a rural area and had been subjected to persecution. The applicant maintained that is the reason why she had left. The applicant maintained that her parents had been the subject of incidents, one having a broken leg and the other cancer, and that she would have returned if she was not afraid to go back.

2. The applicant maintained that she was doing God’s work and that she went to places that she would not go to but for her practice of Christianity. Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal. The applicant’s submissions, in essence, were an invitation for this Court to engage in merits review. This Court does not have power to review the merits.

Consideration

Paragraph 1

1. In relation to paragraph 1 under the orders sought, it is only the Tribunal’s decision that can be the subject of consideration for relief by this Court. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. The issue of the applicant’s credibility had been a live issue before the delegate. The Delegate found the applicant was not a witness of truth.

2. The Tribunal clearly addressed the applicant’s claimed fear of harm in relation to Christianity and made adverse findings that were open to the Tribunal and which cannot be said to lack an evident and intelligible justification. The Tribunal, in that regard, did not engage in an application on of an arbitrary standard of knowledge but made adverse findings in relation to the applicant’s credibility that were open. No jurisdictional error is made out by paragraph 1 under “orders sought by applicant”.

Paragraph 2

1. In relation to paragraph 2, it is apparent that the Tribunal did consider the applicant’s claims in relation to her faith and made adverse findings. Paragraph 2 under “orders sought by applicant” is, in essence, a disagreement on adverse findings of fact by the Tribunal, and does not make out any jurisdictional error.

Paragraph 3

1. In relation to paragraph 3 under “orders sought by applicant”, the Tribunal did not accept that the applicant would practice Christianity on return to China. Whilst there was no express reference in the applicant’s evidence to proselytising, the proposition that the applicant would engage in proselytising was subsumed within the adverse finding made by the Tribunal. No jurisdictional error is made out by paragraph 3 of the orders sought.

Paragraph 4

1. In relation to paragraph 4, the Tribunal’s reasons reflect a consideration of the applicant’s claims individually and cumulatively and an orthodox approach to the applicant’s claims and evidence. There is no basis to conclude that the Tribunal failed to take into account the applicant’s evidence when the Tribunal considered the applicant’s claims as a whole. No jurisdictional error is made out by paragraph 4 of the orders sought.

Grounds in the application

1. The grounds in the application are as follows:

   1, I am a Chinese citizen and have faithful and committed Christian faith. I have been persecuted and threatened 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. AAT even suspect my church activities in China which is totally not fair .

   3, AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

   4, AAT should grant my review application and the member has strong prejudice to me.

Consideration

Ground 1

1. Ground 1 of the application is, in substance, a repetition of the applicant’s claims. The Tribunal dealt with the applicant’s claimed fear of harm in relation to the Christian faith and made adverse findings that were open. No jurisdictional error is made out by Ground 1 of the application.

Ground 2

1. In relation to Ground 2, the Tribunal complied with its obligations of procedural fairness. The issue of the applicant’s credibility was a potential issue of which the applicant was on notice as a result of the decision of the delegate. It is apparent that the Tribunal raised its credibility concerns with the applicant in the course of the hearing. On the face of the material before the Court, the applicant had a genuine and meaningful hearing. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to Ground 3, the Tribunal provided cogent and rational reasons in support of the adverse credibility findings. The adverse credibility findings were not made because of an absence of evidence. No jurisdictional error is made out by Ground 3.

Ground 4

1. In relation to Ground 4, no basis has been identified for the allegation of bias. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No case of bias was made out. On the face of the material before the Court the Tribunal conducted the review with a mind reasonably open to persuasion. Ground 4 fails to make out any jurisdictional error.

Certificate material

1. I accept the submissions of the first respondent that the certificate and the documents the subject of the certificate under s.438 were not referred to by the Tribunal and, on their face, were not relevant to the determination of the issues raised on review. The documents related to the applicant’s identity and there was no dispute in respect of the applicant’s identity. I am clearly satisfied that the documents were not relevant to the determination of the issues by the Tribunal and do not give rise to any practical injustice in the present case. No jurisdictional error is made out by reason of the failure to disclose the existence of the certificate or the documents the subject of the certificate to the applicant.

2. Further, if contrary to this Court’s finding, the failure to disclose the certificate and the documents the subject of the certificate constituted a jurisdictional error, the Court is satisfied that this is a case where there was no practical injustice to the applicant from the non-disclosure. As a matter of discretion, relief should be refused.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 31 July 2017