DQJ16 v Minister for Immigration and Border Protection

[2018] FCA 1312

FEDERAL COURT OF AUSTRALIA

DQJ16 v Minister for Immigration and Border Protection [2018] FCA 1312

Appeal from:	DQJ16 v Minister for Immigration [2018] FCCA 792
File number	NSD 709 of 2018
Judge:	MARKOVIC J
Date of judgment:	29 August 2018
Legislation:	Migration Act 1958 (Cth) s 476(2)(a), (4)
Cases cited:	Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108
Date of hearing:	14 August 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	26
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms S Given of HWL Ebsworth
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 709 of 2018

BETWEEN:

DQJ16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	29 AUGUST 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1. This is an appeal from orders made and judgment given in the Federal Circuit Court of Australia (Federal Circuit Court) on 13 April 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 October 2016: see DQJ16 v Minister for Immigration [2018] FCCA 792 (DQJ16).

   BACKGROUND

2. The appellant is a citizen of China.  He arrived in Australia on 18 July 2013 and lodged an application for a Protection (Class XA) visa (Visa) on 19 August 2014. 

3. In his Visa application the appellant made the following claims:

   (1)his wife joined the “Almighty God” sect (also known as Quannengshen or Eastern Lightning) in about 1998 and devoted herself to church activities;

   (2)at the time the appellant did not believe in “Almighty God” but because of his love for his wife he did not reject his wife’s decision to join the organisation;

   (3)in 2011 the appellant went to work in South Africa.  Once when he called home he was informed that his wife had been detained as a result of her membership of the “Almighty God” organisation but, because it was her first offence, she was soon released;

   (4)because of his concern for his wife the appellant quit his job in South Africa and returned home to China;

   (5)upon his return, the appellant started to accompany his wife to church activities and read the bible together with his wife, gradually starting to believe in “Almighty God”;

   (6)in October 2012 the appellant’s wife asked him if he could turn his house into a church venue and the appellant agreed;

   (7)in March 2013 the police raided the appellant’s home and accused the appellant and his wife of holding illegal church activities.  The appellant and his wife were able to avoid harm because they changed the venue at the last minute;

   (8)on 13 April 2013 the appellant was organising religious materials at home when the police raided his house and caught him.  The appellant was released after a warning because it was his first offence but the police charged the appellant’s wife and detained her for 15 days;

   (9)after his release the appellant was required to report to the police weekly; and

   (10)the appellant organised to travel abroad because he could not stand the imposition on his freedom and the risk of losing his freedom. 

4. On 9 July 2015 a delegate of the first respondent (Minister) refused the application for the Visa.  The delegate found that the appellant was not credible and rejected his claims. 

5. On 24 July 2015 the appellant applied to the Tribunal for review of the delegate’s decision.  On 19 September 2016 the Tribunal invited the appellant to a hearing.  On 21 October 2016 the appellant attended the hearing assisted by a mandarin interpreter. 

6. On 27 October 2016 the Tribunal affirmed the decision under review. 

   THE TRIBUNAL DECISION

7. The Tribunal summarised the appellant’s claims, the delegate’s decision and the evidence given by the appellant to the Tribunal.  At [33]-[37] the Tribunal set out its findings in relation to the appellant’s claim pursuant to s 36(2)(a) of the Migration Act 1958 (Cth) (Act). 

8. The Tribunal accepted that the appellant is a Chinese national, found that he left China legally and without difficulty on a valid passport and accepted that the appellant’s wife died in August 2014 after he came to Australia.  The Tribunal then set out its critical findings at [34] where it said:

   34.Having considered the evidence in this matter in its entirety, I give very little weight to [the appellant’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 Lighting prayer after living with and being proselytised by the convenor of an Eastern Lightning prayer group.  I find that [the appellant] 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 appellant] 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 appellant’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 appellant's] substantive claims concocted.  In view of the extent to which [the appellant] 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.

9. In effect, the Tribunal found that the appellant was a “comprehensively unreliable witness” and rejected all of his claims.  It was not satisfied that the appellant would face a real chance of persecution in China in the reasonably foreseeable future or that he is a person in respect of whom Australia has protection obligations under the Refugees Convention.  The Tribunal thus found that he did not satisfy the criteria set out in s 36(2)(a) of the Act. 

10. The Tribunal also considered whether the appellant met the alternative criteria in s 36(2)(aa) of the Act but was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there was a real risk that the appellant would suffer significant harm.  Thus the Tribunal was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) on the Act. 

    FEDERAL CIRCUIT COURT PROCEEDING

11. On 30 November 2016 the appellant commenced proceedings in the Federal Circuit Court.  His application filed in that court raised five grounds of review (as written):

    1.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.

    2.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.

    3.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.

    4.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.

    5.The AAT has not provided a CD recording of the hearing to me.

12. The primary judge rejected grounds one and three because in those grounds the appellant sought to take issue with the delegate’s decision. The primary judge noted that the delegate’s decision is a primary decision as defined in s 476(4) of the Act and that accordingly, the Federal Circuit Court did not have jurisdiction to review that decision as set out in s 476(2)(a) of the Act: DQJ16 at [10]-[11] and [16].

13. The primary judge also rejected ground two.  To the extent that ground took issue with the delegate’s decision, he did so for the same reasons that he rejected grounds one and three and otherwise because it did no more than take issue with the merits of the Tribunal’s decision: DQJ16 at [12]-[15].

14. In relation to ground four the primary judge noted that the appellant bore the onus of establishing that what was recorded by the Tribunal was a result of an error in interpretation and that there was no evidence before him about the interpretation of the appellant’s evidence at the Tribunal hearing.  The primary judge thus rejected the ground because the appellant had failed to discharge his onus of proof: DQJ16 at [17].

15. In relation to ground five the primary judge found that there was no obligation on the Tribunal to send the appellant a copy of the audio recording of the hearing.  His Honour set out the history of the proceeding and noted that the appellant had had sufficient opportunity to obtain a copy of the recording of the hearing.  His Honour rejected ground five: DQJ16 at [18]-[19].

16. At the hearing the primary judge identified an additional issue, namely whether the Tribunal’s reasoning revealed an error of the type discussed in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 (SZLSP).  His Honour gave the parties an opportunity to file further submissions addressing that issue: DQJ16 at [20]. Only the Minister filed further submissions in response to that invitation.

17. Having considered the Minister’s submissions on the issue, the primary judge accepted that the Tribunal did not fall into the same error as that identified in SZLSP.  His Honour reached that conclusion having regard to the information set out in the Tribunal’s decision in relation to the beliefs and practices of the Eastern Lightning sect, the evidence given by the appellant to the Tribunal concerning his religious beliefs and the Tribunal’s finding about the appellant’s knowledge of the beliefs of the Eastern Lightning sect.  The primary judge found that there was a rational basis for the Tribunal’s findings in relation to whether the appellant was a follower of the Eastern Lightning sect and the assessment of his religious beliefs: DQJ16 at [22]-[29].

    THE APPEAL

18. By notice of appeal filed on 3 May 2018 the appellant raises the following grounds for appeal (as written):

    1.I provided relevant evidence in relation to my wife's death in China.  Immigration officer did not accept the evidence, did not verify the evidence and did not consider the evidence seriously.

    2.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 Almighty God church so she was under monitored more strictly.  Our neighbour was my wife's classmate and he was an associated policeman.  His brother-in­ law was the head of our local police station.  He would report my wife again if he sees any indication my wife was trying to leave China, because he hated my wife.

    3.Immigration officer did not believe the genuineness of my claim.  I explained 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.

    4.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.

    5.The AAT has not provided a CD recording of the hearing to me.

    6.I lodged an appeal application to the Federal Circuit Court.  However an order from the Federal Circuit Court was made on 13 April 2018 that my appeal be dismissed and I pay $5,600 to the first respondent.

    7.I do not believe the decision from the Federal Circuit Court is fair.  I do not want to be illegal in Australia.  am asking the Federal Court to review my case to wish a decision to be made in my favour.

19. The appellant did not file any written submissions in support of the grounds set out in his notice of appeal.  At the hearing he submitted that it was not fair that the court had considered all of his evidence to be fraudulent and that the materials he had provided were true.  He further submitted that he could not have joked about his wife’s death or made up the related documents, including the referral letters, incineration letter and doctor’s certificate.  He also submitted that he was hoping for a “fair outcome” and that he thought that the courts in this country were fair but they do not seem to be so to him.   

    CONSIDERATION

20. Grounds one to five in the notice of appeal replicate the grounds raised in the Court below.  They do not identify any appealable error in the reasons of the primary judge.  In any event, I accept the Minister’s submission that there is no error in the primary judge’s reasoning in relation to his consideration of grounds one to five:

    ·insofar as grounds one and three seek to challenge the delegate’s decision, the primary judge correctly found that, because of the operation of s 476(4) and s 476(2)(a) of the Act, the Federal Circuit Court had no jurisdiction in relation to that decision. I should add that the same position pertains to this Court. The appellant raised in oral submissions that the evidence and documents he submitted were rejected by, it seems, the delegate. To the extent that those submissions refer to grounds one and three, they are rejected for the same reason as articulated by the primary judge;

    ·in relation to ground two, as the primary judge identified, insofar as this ground sought to challenge the delegate’s decision for the same reason as set out in relation to grounds one and three, the Federal Circuit Court had no jurisdiction and the ground otherwise sought merits review;

    ·in relation to ground four, as the primary judge noted there was simply no evidence before him that corroborated the allegation that there had been an error in interpretation.  Despite then having notice of the need to put evidence before the court to support such a claim, the appellant did not seek leave to rely on any evidence before me to advance this claim; and

    ·there is no error in the approach of the primary judge to ground five.  As his Honour noted, there is no obligation on the Tribunal to provide a copy of the recording of the hearing to an appellant. 

21. Ground six of the notice of appeal does not advance any proper ground of appeal. 

22. By ground seven the appellant expresses his dissatisfaction with the decision in the court below.  He says that he does not think that the decision “is fair”.  Similarly, in his oral submissions the appellant said he was hoping for a fair outcome. 

23. Ground seven does not raise a proper ground of appeal.  But, to the extent that the appellant is suggesting that he was not afforded a fair hearing, that contention must be rejected.  The appellant was given ample opportunity to file any evidence and submissions prior to the hearing.  He attended a hearing before the primary judge with an interpreter and at that hearing the primary judge raised an issue which, had it been successful, may have resulted in the matter being remitted to the Tribunal.  In relation to that issue, both the Minister and the appellant were invited to provide further submissions but the appellant did not take up that invitation.  As the Minister submitted, the appellant was entitled to a fair hearing, which he got, not a “fair outcome” or, as seems to be suggested by ground seven, an outcome in his favour.  The primary judge considered the grounds raised by the appellant in his application as well as the additional ground raised by the court of its own motion and determined the matter having done so. 

24. For completeness I note that, in my opinion, there is no error disclosed in the primary judge’s reasoning in relation to the additional ground based on the decision in SZLSP. 

25. Neither the grounds of appeal nor the matters raised by the appellant in his submissions at the hearing identify any appealable error in the reasons of the primary judge.  I am also not able to discern any such error in his Honour’s reasons or in the procedure which his Honour followed in hearing the matter. 

    CONCLUSION

26. For those reasons the appeal should be dismissed and the appellant should be ordered to pay the Minister’s costs as agreed or taxed.  I will make orders accordingly.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate:

Dated:        29 August 2018