DQJ16 v Minister for Immigration

[2018] FCCA 792

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQJ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 792

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal had a rational basis for concluding that the applicant’s knowledge of the religion was below that of what an adherent might reasonably be expected to have had – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108

Applicant: DQJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3364 of 2016

Judgment of: Judge Smith

Hearing date: 7 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Sydney

Delivered on: 13 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Davyskib, HWL Ebsworth.

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3364 of 2016

DQJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 27 October 2016. The Tribunal affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa. The applicant is a citizen of China who arrived in Australia on 18 July 2013 on a visitor visa. On 19 August 2014, he lodged an application for a protection visa.

Background

1. The applicant claimed that his wife had joined the religion called ‘Eastern Lightning’ in or around 1998 and began regularly reading the Bible and attending weekly church services. Although the applicant did not share his wife’s belief at that time he did not oppose her decision because he loved her. In 2011, the applicant went to work in South Africa and discovered when he called home that his wife had been arrested. She was released soon afterwards with a warning to abandon her religion as it was her first offence.

2. The applicant claimed that he quit his job out of concern to his wife and returned to China. When he did return he found that his wife was more devoted to God and to telling beautiful stories. He claimed that in October 2012 his wife asked him if she could turn her house into a church venue and that he agreed. However, the police raided his home and accused him and his wife of holding illegal church activities there. He and his wife were able to avoid harm because they had changed the venue at the last minute.

3. On 13 April 2013, the applicant was preparing a service at home when police raided the house and caught him. He was let off because this was his first offence. His wife, however, was charged and detained for 15 days.

4. The applicant claimed that on his release he was placed on weekly reporting conditions and travelled abroad because he could not stand the imposition on his freedom and feared further loss of liberty.

5. On 9 July 2015, a delegate of the Minister for Immigration made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. He attended a hearing conducted by the Tribunal on 21 October 2016. The Tribunal made its decision on 27 October 2016, affirming the decision of the delegate.

Tribunal’s decision

1. The Tribunal found that the applicant was not a credible witness and rejected all of his claims. Its critical findings were set out at [34] of its reasons:

   Having considered the evidence in this matter in its entirety, I give very little weight to [the applicant’s] performance of “prayer” at the tribunal hearing. I also do not accept that he is being truthful about elapsed time since 2013 being the reason for his poor knowledge of Eastern Lightning prayers, hymns and teachings. I find that it is reasonable to expect that he would have had much more knowledge about Eastern Lightning prayer after living with and being proselytised by the convener of an Eastern Lightning prayer group. I find that [the applicant] has concocted the story he told me about his wife being regularly detained and raped at a police station after a neighbour was able to denounce her to police as a member of the “Almighty God” sect. The evidence he gave here was also confused as, at one stage, he seemed to be saying he had formally disavowed her memory in the family legacy over her relationship with the neighbour. Overall, on the evidence before me, which I have considered separately and cumulatively, I find that [the applicant] is a comprehensively unreliable witness in the present matter. I do not accept that he has ever affiliated with the Eastern Lightning sect, or that he was placed on reporting conditions, and in view of this I do not accept that his house was ever raided by police, that Eastern Lightning materials were ever kept there, that his wife ever conducted prayer meetings there, that she ever persuaded him to join Eastern Lightning or that she was ever an Eastern Lightning member herself. I do not accept, on [the applicant’s] performance as a witness, that his wife was ever accused of affiliation with Eastern Lightning, let alone by a neighbour who sought sexual advantage. I find all of [the applicant’s] substantive claims concocted. In view of the extent to which [the applicant] has been an unreliable witness, I gave no weight to the witness statements. I have already given my reasons for not going beyond the statements to discuss this case and the topic of the banned Eastern Lightning movement with them over the telephone.

2. In light of those findings the Tribunal found that the applicant was able to leave China unhindered because he was of no potential, relevant interest to the authorities, or any other party there, and it was not satisfied that the applicant met the criteria for the grant of a protection visa.

Consideration

1. There are five grounds in the application for judicial review. In addition to these, there is an issue that arises in connection with the way in which the Tribunal dealt with the applicant’s claims to adhere to the faith of the Eastern Lightning religion.

First ground: “Immigration officer did not believe my wife’s death although I provided relevant evidence in relation to her death. Immigration officer did not verify the evidence and did not consider the evidence seriously.”

1. One of the documents relied upon by the applicant in support of his claims was a death certificate in respect of his wife noting that she had died of heart failure on 7 August 2014. The applicant also provided to the Department a letter from a person identifying himself as a former neighbour in China of the applicant and his wife also saying that the applicant’s wife had died in August 2014. The author of the letter gave an opinion that the death was related to the “long persecution” of the wife by the Chinese government.

2. While the delegate of the Minister did not accept that the applicant’s wife had passed away as claimed [CB 62] the Tribunal accepted the applicant on this point: [16]. This ground, then, is aimed at the decision of the delegate rather than that of the Tribunal. The Court does not have jurisdiction in relation to the delegate’s decision: sub-s.476(2)(a) and s.476(4) of the Migration Act1958 (Cth). For that reason the first ground is rejected.

Second ground: “Both Immigration officer and AAT member were not satisfied with my answers in why I left China for Australia but not my wife. I explained that I could leave China easier than my wife although I had to report to the local police station once a week. My wife was known as a member of the Almighty God church so she was under monitored more strictly. Our neighbour who was my wife’s classmate was an associated policeman and his brother-in-law was the head of our local police station. He hated my wife. He would report my wife again if he sees any indication that my wife was trying to leave China for overseas. My wife would be in more serious trouble if it happened.”

1. To the extent that this ground addresses the reasons for the decision of the delegate of the Minister, it is rejected for the same reasons as the first ground was rejected.

2. Otherwise, this ground simply takes issue with the merits of the Tribunal’s decision.

3. During the hearing conducted by the Tribunal, the applicant told the Tribunal that his wife was not known to be a member of Eastern Lightning: [27]. The Tribunal then put to him that this was a variation on the claim as set out in his visa application and that further explanations by him also contradicted his earlier claims: [27] - [30]. These contradictions were part of the reason for the Tribunal concluding that the applicant was an unreliable witness: [34]. Thus, the Tribunal explained not only why it had difficulties with the applicant’s evidence but also the consequence of those difficulties for the purposes of its conduct of the review. The Tribunal’s reasoning in this respect, subject only to one possibility referred to later in these reasons, does not reveal any jurisdictional error.

4. The second ground is rejected.

Third ground: “Immigration officer did not believe the genuineness of my claim. I explained to the Immigration officer that I did not apply for protection earlier because when I first arrived in Australia I was not aware of protection visa. My agent in China did not tell me that I could apply for protection in Australia.”

1. This ground, like the first ground, focuses upon the delegate’s decision and is rejected for the same reason as that ground.

Fourth ground: “The AAT member misunderstood me about whether my wife was known being a member of the church. I stated that my wife was not known to be a member of the church when I left China for South Africa, not when I left China for Australia. This misunderstanding could be caused by the interpreter’s mistake.”

1. I have mentioned, at [14] above, that the evidence shows what was said by the applicant about his wife at the Tribunal hearing. It is the applicant’s onus to establish that what was recorded by the Tribunal at [27] of its reasons was as a result of an error in interpretation. There is no evidence at all about the interpretation of the applicant’s evidence at the Tribunal hearing. For that reason, the applicant has not fulfilled his onus and this ground must be rejected.

Fifth ground: “The AAT has not provided a CD recording of the hearing to me.”

1. There is no obligation on the Tribunal to provide a recording of the Tribunal’s hearing to an applicant. For that basic reason this ground does not establish jurisdictional error. In any event, the applicant had plenty of opportunity to obtain the recording of the Tribunal hearing. These proceedings were commenced by application filed on 30 November 2016. The matter was not heard until 7 March 2018, more than one year and two months after commencement of the application. On 6 April 2017, a Registrar of the Court ordered by consent that the applicant file any evidence including a transcript of the hearing by 14 July 2017.

2. The fifth ground is rejected.

Further issue: findings concerning religious belief

1. Part of the reasons for which the Tribunal found that the applicant was not a credible witness was its finding that the applicant had a poor knowledge of the Eastern Lightning prayers, hymns and teachings: [34]. At the hearing of this matter, I raised with the Minister’s lawyer the question of whether this reasoning revealed the error of the type discussed by the Full Court in Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108. The parties were given an opportunity to, and the Minister did, file further submissions addressing this point.

2. SZLSP concerned a decision in which the Refugee Review Tribunal rejected an applicant’s claim to be an adherent to Falun Gong partly because, according to the Tribunal, the applicant’s answers to its questions concerning the basic elements of Falun Gong were incorrect. However, there was no reference in the Tribunal’s decision to any material upon which it based that conclusion. The Full Court, by majority, found that this revealed that the Tribunal had fallen into jurisdictional error. Justice Kenny held, at [39], that where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know. There was no such apparent rational basis in that case.

3. I accept the Minister’s submissions that the Tribunal in this case did not fall into the same error as that identified in SZLSP.

4. First, the Tribunal set out some country information concerning the beliefs and practices of the Eastern Lightning church at [7]:

   …

   Church of Almighty God/Eastern Lightning/Real God Church

   3.35 The Chinese government banned the Church of Almighty God in November 1995. The organisation is an offshoot of the Shouters group. The group is also known by other names, including, “The Church of the Almighty God”, “The Congregation”, “Oriental Lightning”, “Seven Spirit Sect”, “Second Saviour Sect”, “True Light Sect”, “True Way Sect”, and “New Power Lord’s Church”. It was founded in 1989 by Zhao Weishan, a physics teacher who grew up in Henan province but later fled to the United States. Adherents believe Jesus has returned to earth as a Chinese woman known as “lightning Deng” (Yang Xiangbin, the wife of Zhao Weishan). Members believe they are in a constant life-or-death struggle against the “Great Red Dragon” (a reference perhaps to the Chinese Communist Party) and that membership of the group would save them from impending apocalypse. Chinese media reports claim the group has more than one million followers divided into seven levels, with lower-level followers unconditionally obeying their superiors. Official sources say most members are under-educated rural women aged around 50 years.

   …

5. At [24] of its reasons, the Tribunal recounted some of the evidence given at the hearing by the applicant concerning his religious beliefs:

   Essentially, [the applicant] did not give me any insight into his wife’s or his own beliefs. With one brief exception, he was unable to recite any Eastern Lightning prayers and he said he could not remember even scant verses of any of the hymns he and his wife’s group purportedly sang (at whatever volume) in his own house. He did say he could show me what an Eastern Lightning prayer posture looks like but, on my letting him demonstrate, he merely sat on the floor in a generic prayer or meditation pose. I then asked him to say aloud what he would be saying whilst assuming this posture and he said “Halleluia” followed by a single, short-sentence invocation to God to grant peace through “the Son of God”. I asked him if this was all he could recall of Eastern Lightning prayer and he said that one needs to repeat it several times according to his wife who had taught him. Asked why he had such scant recall of prayer and song, he said he had just been a beginner. …

6. Later, at [30], the Tribunal noted that, whereas the Eastern Lightning movement had a “range of beliefs, both mystical and political” the only one that the applicant could cite ever having been discussed between himself and his wife was that it might cure her heart condition.

7. The Tribunal’s essential reasoning at [34] in connection with the applicant’s religious belief was that the applicant had a poor knowledge of Eastern Lightning prayers, hymns and teachings which was far below that which the applicant might have been expected to have had if the applicant had in fact lived with an adherent to that faith who proselytised and convened a prayer group. There was a rational basis for the Tribunal’s conclusion in this respect.

8. First, its statement that the Eastern Lightning movement had a range of beliefs, both mystical and political (see [30]) was supported by the country information set out at [7] of its reasons. The political element was supplied by the fear of the “Great Red Dragon” and the mystical element included the saviour from an apocalypse and the return of Jesus as a Chinese woman, who was married to the founder of the religion. The applicant did not refer to any of this in his evidence.

9. Secondly, the applicant gave evidence that his wife and church group sang hymns in his own home but that he could not even remember scant versus of those hymns: [24].

10. Thirdly, the applicant’s own evidence was that he had scant recall of the prayer of the religion and explained that that was because he was a beginner. The Tribunal compared this evidence to other evidence that the applicant “would have heard his wife’s group singing hymns over the years since 1998 or 1996”.

Conclusion

1. For those reasons I am not satisfied that the Tribunal fell into any error in its assessment of the applicant’s religious beliefs. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     13 April 2018