ECF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FCA 96
•16 February 2023
FEDERAL COURT OF AUSTRALIA
ECF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 96
Appeal from: ECF19 v Minister for Immigration [2020] FCCA 1148 File number: NSD 569 of 2020 Judgment of: YATES J Date of judgment: 16 February 2023 Catchwords: MIGRATION – application for leave to appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – where Tribunal affirmed decision of a delegate of the first respondent not to grant protection visa – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Federal Circuit Court Rules 2001 (Cth) r 44.12
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 28 Date of hearing: 3 February 2023 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
NSD 569 of 2020 BETWEEN: ECF19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
16 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
This is an application for leave to appeal from a judgment of the Federal Circuit Court of Australia which dismissed, with costs, the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision affirmed a decision of the delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to grant the applicant a protection visa.
Leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the dismissal was under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and, by dint of r 44.12(2), an interlocutory judgment.
In his application for leave to appeal filed on 22 May 2020, the applicant expressed his “firm” belief that the primary judge did not make a genuine attempt to consider his application; that the primary judge “stood on the side” of the Tribunal; that the primary judge was strongly prejudiced against the applicant; and that, “just like the Tribunal”, the primary judge had already arrived at his decision before hearing from the applicant.
I should say, immediately, that, whilst these allegations might represent the applicant’s belief, they are not established as matters of fact on the evidence before the Court. Indeed, the primary judge’s published reasons indicate, on their face, that his Honour gave careful consideration to the application that was before him, including, in particular, the applicant’s oral submissions advanced at the hearing. Those reasons do not manifest bias or prejudgement.
In this regard, after setting out, in full, the applicant’s grounds of review, the primary judge said, at J[36] – [42]:
36.Only the Minister filed submissions for today’s hearing. I invited oral submissions this morning from the applicant. Those submissions proved to be quite extensive. He spoke with apparent sincerity about his religious beliefs and his fear of harm. He is adamant that in rejecting his claims, the Tribunal demonstrated bias or prejudgement.
37.[The] applicant’s problem, however, is that his focus is upon the outcome and the Tribunal’s reasoning process, rather than any procedural issues. While noting that the Tribunal went to the trouble of organising a second hearing in his case because of interpretation problems, the applicant maintains that that hearing was a mere formality. I disagree. In my view, the Tribunal went to considerable lengths to attempt to ensure that the applicant was given a fair hearing opportunity.
38.The applicant in his submissions sought to deconstruct elements of the Tribunal’s reasoning which he takes issue with. Those submissions, however, go to the merits of the Tribunal decision, which are beyond the scope of this hearing. He also referred to his religious activities in Australia. Those activities were disregarded by the Tribunal in relation to the protection criterion, but they were considered for the purposes of the complimentary protection at [95] of the Tribunal’s reasons. I see no arguable case of error in relation to the Tribunal’s approach.
39.The applicant also referred to a crackdown on religious cults by President Xi of China. The applicant had also made that submission to the Tribunal which took the view, as I understand it, that it was a matter of little moment given that it did not accept that the applicant was a member of a group the subject of the crackdown.
40. In his submissions today, the applicant referred to some very recent arrests. That is, obviously, not something the Tribunal could have considered. It is something the Minister could consider if he was so minded.
41. In other respects, I agree with the Minister’s submissions concerning the grounds of review advanced.
42. Whilst the application for judicial review contains eight purported grounds of judicial review, in substance, the applicant simply asserts (in Grounds 1 and 8) that the Tribunal was biased and then sets out (in Grounds 2, 3, 4, 5 and 6) particulars or examples of the alleged bias by the Tribunal.
The primary judge then gave consideration to each of the grounds of review at J[43] – [57]. The primary judge concluded, at J[58], that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
THE APPLICANT’S CLAIMS
The applicant claimed protection on the ground that he feared persecution in China as a Christian and as a member of the Local Church. While the Minister’s delegate accepted that the applicant was a genuine Local Church adherent, the delegate did not accept that the Chinese authorities had any adverse interest in the applicant. The primary judge summarised the delegate’s decision in these terms:
18.On 21 September 2016, the delegate made a decision refusing to grant the applicant a protection visa. The delegate accepted that the applicant was a genuine Local Church adherent, but did not accept that the Chinese authorities had any adverse interest in him. The delegate found the fact that the applicant was not the subject of a warrant or summons and that he had been released by the police, indicated the issue of him copying Bibles had been “dealt with” by the police and that he would not face further repercussions. The delegate also found that being a member of the Local Church group would not of itself lead the police to take an adverse interest in someone. The delegate found further that it was contradictory that the applicant claimed he hid from his reporting obligations but the police did not issue any summons, warrants or other punishments to the applicant or his family. The delegate also found it contradictory that the applicant was able to depart China legally from an international airport on his own passport. The delegate found the supporting letters from the Local Church did not mention that the applicant belonged to a banned or persecuted religious group in China and did not indicate that they supported his application for protection from the Chinese authorities.
(Footnotes omitted.)
The Tribunal, on the other hand, rejected the applicant’s protection claims in their entirety, based on the Tribunal’s concerns about the applicant’s credibility. At T[84], the Tribunal said:
84. Considered cumulatively, the Tribunal’s concerns about the applicant’s credibility cause the Tribunal to find that the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s claims that he became a Christian and practised Christianity in China. The Tribunal therefore disbelieves his claims that he became a member of the Local Church in his native area through his dealings with an individual X; that he attended secret gatherings in that area or in any other location in China; that both he and X were arrested and detained by Chinese authorities on any occasion; that Chinese authorities required the applicant to report to them and that Chinese authorities were investigating him for the purpose of bringing a case against him.
At T[86], the Tribunal said:
86. There is no credible evidence that the applicant suffered harm in China and that Chinese authorities or anyone else in China seek to harm him. There is no credible evidence before the Tribunal as to why the applicant left China, at any time, and why he came to Australia. There is no credible evidence before the Tribunal as to why the applicant does not want to return to China. In reaching these findings, the Tribunal has taken into consideration evidence before it that purportedly supports his claim to belong to the Local Church and, therefore, his account of the events that he claims occurred before and after he came to Australia and on which his protection claims are based.
These findings were made after a detailed review and analysis by the Tribunal of the evidence before it: see T[9] – [82].
The Tribunal also considered the applicant’s religious activities in Australia. The Tribunal accepted that the applicant may have attended the Local Church in Australia regularly since his arrival in Australia and that he may have conveyed the impression to members of that community that he is a committed Christian and committed member of that church. The Tribunal reasoned, however, that this did not demonstrate that the account of events advanced by the applicant, on which his protection claims were based, was true. At T[89] – [90], the Tribunal said:
89. Whatever impression members of the Local Church may have of the applicant, the Tribunal has had the opportunity to question him closely about his protection claims and, for the reasons given above, finds that he is not a witness of truth and that the account of events on which his protection claims are based is false. Similarly, the applicant’s knowledge of the Local Church and Christianity does not persuade the Tribunal to overlook its concerns about his credibility. In view of those concerns about his credibility, the Tribunal finds that it has no credible evidence as to why the applicant has acquired that knowledge and why he has participated in gatherings of the Local Church in Australia.
90. The Tribunal remains of the view that the applicant is not a witness of truth, that his account of becoming a Christian and practising Christianity in China is false and that he is not a genuine Christian. Accordingly, he will not seek to practice Christianity on return to China. In addition, pursuant to s.5J(6) of the Act, the Tribunal is to disregard conduct engaged in by the applicant in Australia undertaken for the sole purpose of strengthening his claim to be a refugee. According to the evidence before the Tribunal, the applicant began attending the Local church in July 2015, before he applied for protection in October 2015.
Further, at T[93], the Tribunal found:
93. While the applicant makes these claims, the Tribunal finds that he is not a witness of truth and the account of events on which his protection claims are based is false. The applicant has made it clear that when he left China it was his intention to apply for protection or, at the very least, find a means of staying here based on the harm he claims to fear in China. For all of these reasons, the Tribunal finds that the applicant’s church attendance and activities in Australia have been undertaken for the sole purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal disregards the evidence before it about that.
At T[94] – [95], The Tribunal said:
94. For all of these reasons, the Tribunal finds that there is not a real chance the applicant will suffer serious harm in China. He does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act. With respect to the complimentary protection criterion, the Tribunal repeats its findings that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. There is no credible evidence before the Tribunal as to why the applicant came to Australia and why he does not want to return to China. There is no credible evidence before the Tribunal that the applicant suffered harm in China and that anyone in China seeks to harm him.
95. While, as discussed above there is evidence before the Tribunal about the applicant’s church attendance in Australia, the Tribunal repeats its finding that it has no credible evidence before it as to why the applicant has undertaken these activities in Australia. There is no credible evidence before the Tribunal as to why the applicant holds the knowledge he displayed at the Tribunal hearing and to the delegate about the Local Church and Christianity more generally. The Tribunal finds that the applicant will not seek (or want to) practice Christianity on return to China because he is not a Christian. Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, China, there is a real risk that the applicant will suffer significant harm.
THE PROPOSED GROUNDS OF APPEAL
The proposed grounds of appeal, as expressed in the applicant’s draft notice of appeal, are as follows:
1.I firmly believe that His Honour at the Federal Circuit Court (“His Honour”) has never ever taken any genuine attempts to consider my application. I firmly believe that His Honour completely stood on the side of the Administrative Appeals Tribunal (“the Tribunal”). I firmly believe that His Honour, just like the Tribunal, has already made his decision before His Honour spoke to me over the phone with a show cause application on 12 May 2020. I firmly believe that His Honour has strong prejudice against me.
Particulars
-At the start of the show cause over the phone, His Honour clearly told me that he would make decision today even without listening to any of my evidence. In other words, His Honour had already decided not to give me any further chances, such as a formal court hearing, or allow me to provide any further evidence in support of my application;
-At the show case over the phone, His Honour apparently stood on the side of the Tribunal. According to His Honour's statement, I was deeply impressed that the Tribunal seemed to be with a special power of doing anything even if it was obviously incorrect.
2.I never ever accept that my focus is upon the outcome and the Tribunal’s reasoning process. As a matter of fact, my focus is absolutely upon the procedural issues of the Tribunal. In other words, I firmly believe that the Tribunal was under significant bias when reviewing my protection visa case, and that bias influenced his decision making process including the final decision that was made. Thus, I do not think I was given a fair opportunity at having my case reviewed and I think the Tribunal was inclined to make his decision since the very start.
Particulars
- I accept that the Tribunal has spent several hours to speak to me at two hearings, and particularly, I accept that the Tribunal organized the second hearing owing to interpretation problems. However, it is NOT evidence that the Tribunal have ever given me a fair opportunity, and it is NOT means that the hearing was NOT a mere formality, and it is NOT means that the Tribunal was NOT inclined to make his decision since the very start. The finding of His Honour is completely incorrect;
- It can be the case that the Tribunal needed more time to blow upon the hair in order to discover as the Tribunal was extremely critical. And, it can also be the case that the Tribunal needed a more capable interpreter to assist him to dig out more to refuse my application.
3.I accept that the Tribunal's main concern was my credibility. However, His Honour failed to consider that the Tribunal's concern was completely based on completely based on his subjective assumptions, illogical judgement or unreasonable assessment.
Particulars
-This is may be the case that “the requirements of procedural fairness will often mean that an applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question” (Paragraph 48 of the judgement). However, such requirements should not become an excuse for the Tribunal to put his questions or make his findings completely based on his subjective assumptions, illogical judgement or unreasonable assessment. Particularly, such requirements have never ever means that the Tribunal has a special power of always being critical and particularly blowing upon the hair in order to discover a mote. Apparently, His Honour has strong prejudice against owing to such requirement;
- I believe that, no matter how powerful the Tribunal would be, the Tribunal must perform based on the justice. His Honour also has to do so. At least, neither the Tribunal nor His Honour should have strong prejudices against me. Unfortunately, either Tribunal or His Honour failed to act according to the justice while they looked at my case.
4. His Honour failed to consider significant legal error of the Tribunal.
Particulars
-The Tribunal failed to consider that I am a member of the Local Church (a.k.a. “Shouters”), which is regarded as “Evil Cult” by the Chinese government;
-The Tribunal failed to consider that I have played an important role in the Local Church in Australia; and
-The Tribunal failed to consider significant changes of the religious situation in China since I left China.
It will be apparent that proposed Ground 1 of the appeal encapsulates the matters expressed in the applicant’s application for leave to appeal to which I have already referred. As I have found, the applicant’s allegations that the primary judge did not take genuine attempts to consider the application before him; that he “completely stood on the side of the Administrative Appeals Tribunal”; that he had already made his decision before hearing the applicant; and that he was strongly prejudiced against the applicant, are not established on the evidence, and are not supported by the primary judge’s reasons for judgment.
Proposed Ground 2 directs attention more particularly to J[37] of the primary judge’s reasons, quoted above, in which the primary judge observed that the applicant’s focus was upon the outcome of the Tribunal’s reasoning process, rather than with procedural issues.
In respect of this proposed ground, the applicant contends, contrary to the primary judge’s finding, that he was not given a fair hearing opportunity by the Tribunal. The substance of this proposed ground appears to be that the Tribunal embarked upon a deliberate course to find reasons to refuse the applicant’s application for a protection visa.
There is nothing in the Tribunal’s reasons which indicates this to be the case. The Tribunal gave a detailed survey of the applicant’s evidence and provided detailed reasons as to why it did not accept the applicant’s evidence as truthful and reliable. Those reasons do not manifest prejudgement of the applicant’s application by the Tribunal, still less actual bias by the Tribunal against the applicant. Moreover, those reasons provide a rational and sustainable basis for the findings to which the Tribunal came.
In the end, proposed Ground 2 is really no more than the applicant’s expression of a strong disagreement with the Tribunal’s adverse credibility findings, and with the primary judge’s rejection of the applicant’s contention that he was not provided with a fair hearing opportunity before the Tribunal. This proposed ground of appeal does not identify error on the part of the primary judge beyond the assertion that the primary judge’s finding was “completely incorrect”. I am unable to see appealable error in the primary judge’s finding.
Proposed Ground 3 directs attention to J[48] of the primary judge’s reasons. At J[47] – [49], the primary judge considered the applicant’s third ground of judicial review which concerned the Tribunal’s rejection of his claim that he went to work in Zhejiang province with X (the person who the applicant said converted him to Christianity and was a member of the Local Church), in part to undertake covert religious activities. At T[42] – [45], the Tribunal said:
42. The Tribunal then returned to the applicant’s evidence about going to join X in Zhejiang in January 2014. The applicant confirmed that he went there at that time not only to work with X in the shop that X was operating, but also to undertake covert religious activities. The Tribunal put to the applicant that it had difficulty accepting that he would take the risk of doing this in the light of what he knew about the circumstances of X at that time, the secrecy of religious activities being undertaken, the consequent risk to his safety if those activities were uncovered by the authorities, what he knew of the way Christians were treated in that province by the authorities and, finally, his evidence that he was too afraid to even attend Local Church gatherings in his local area which had caused him to seek a way of leaving China.
43. In response, the applicant said that in the area where X had established his church, activities were done in secret. Further, he said that he could not find work in his native area beyond casual work. His ‘brothers’ had just established the church ‘gathering point’ where X was living. When asked why that would make him willing to go there when, at the same time, he was aware that these activities had to be carried out in secret, the applicant said that it was impossible to hold gatherings in his native area and he just thought that if a gathering point had been set up where X was living, it was a chance to continue to practice his religion and spread the gospel to others.
44. The Tribunal finds the applicant’s responses on this concern to be unconvincing. The Tribunal can appreciate that if the applicant was a committed Christian and committed to this particular denomination he would take up the chance to go to another area where he could, in effect, practice his religion in accordance with that particular denomination. However, in his own native area, the applicant had refrained from attending church gatherings for his safety and he was going to practice his religion with someone who had been of significant interest to the authorities and was, again, going to practice his religion in secret. In those circumstances, the Tribunal does not accept that the applicant would take that risk.
45. He also claimed that he could not find work in his local area, but, he also said that the work he obtained was casual. He was not denied employment as such and, at any rate, the applicant made it clear that his decision to go to this other part of China was, primarily, related to religion not employment. Finally, the applicant made it clear that he was aware that the authorities in that part of China where he was going to live had launched a crackdown on Christians and clearly had a negative attitude towards them. In all of these circumstances, the Tribunal does not accept that the applicant would go and join X in this particular part of China and undertake covert religious activities.
At J[47] – [49], the primary judge said:
47.In Ground 3, the applicant contends the Tribunal continuously asserted that it was improbable for him to continue practising his faith in Zhejiang. He also contends that he was a devout Christian and it was important that he consistently practised his faith, even if it meant facing risks. He also asserts that the actual risk of him practising Christianity in Zhejiang was “overstated” by the Tribunal because it is a large area and the authorities did not monitor every area, and that it did not consider this and instead sought to use any reason to undermine his claims.
48.The applicant’s complaints about the Tribunal’s questioning of him at the hearing again lack any evidentiary basis. Where credibility is in issue (as in the present case), the Tribunal will necessarily have to test the evidence presented, often vigorously. The requirements of procedural fairness will often mean that an applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question.
49.The balance of the applicant’s complaints in this ground essentially restate his factual claims for protection and attempt to engage in impermissible merits review. There is nothing to suggest that the applicant ever claimed before the Tribunal that the authorities did not monitor “every area” of Zhejiang, despite evidently being afforded the opportunity to make such a claim when the Tribunal indicated that it had difficulty accepting he would move there because of the “consequent risk to his safety if those activities were uncovered by the police”. Further, the Tribunal’s decision record demonstrates that the applicant meaningfully engaged with the Tribunal about his time and conduct whilst in Zhejiang, which undermines his complaint of bias.
(Footnotes omitted.)
In this part of the reasons, the primary judge found that the applicant’s third ground of judicial review was essentially an attempt to engage in impermissible merits review. In essence, proposed Ground 3 of the appeal asserts error on the part of the primary judge for failing to find that the Tribunal’s credibility concerns involved assumptions and illogical and unreasonable reasoning. In other words, this proposed ground appears to contend that the Tribunal’s decision was tainted by aspects of legal unreasonableness. However, this is not how the third ground of judicial review was couched, or advanced, in the proceeding below. Further, the particulars to proposed Ground 3 continue the theme—which I have rejected—that both the Tribunal and the primary judge were prejudiced against the applicant and arrived at their respective decisions accordingly.
Strictly speaking, the error attributed to the primary judge does not arise because the question of legal unreasonableness was not advanced by the applicant for his Honour’s consideration and determination. Even so, there is nothing illogical or unreasonable in the Tribunal’s consideration of this aspect of the applicant’s claim. Once again, the Tribunal’s reasons do not manifest prejudgement of the applicant’s application, still less actual bias by the Tribunal against the applicant. Further, the Tribunal’s reasons provide a rational and sustainable basis for the findings to which the Tribunal came in respect of this part of the applicant’s evidence.
Proposed Ground 4 asserts that the primary judge failed to consider “significant legal error” on the part of the Tribunal. However, as the particulars to this ground demonstrate, proposed Ground 4 seeks, erroneously, to attribute error on the part of the primary judge for failing to come to factual findings that differed from the Tribunal’s findings and, in substance, invites the Court to engage in its own review of the merits of the Tribunal’s decision with respect to the particularised topics. This is not permissible.
CONCLUSION
As the Minister submitted, the present application turns on whether the applicant can demonstrate that: (a) there is sufficient doubt as to the correctness of the decision below such as to warrant its reconsideration on appeal; and that (b) assuming the decision to be wrong, substantial injustice will be suffered by the applicant if leave to appeal were to be refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 – 399. These requirements are cumulative. Each limb must be satisfied: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [5].
The present application fails at the first hurdle. The applicant has not demonstrated that there is sufficient doubt as to the correctness of the decision below to warrant its reconsideration on appeal. Indeed, for the reasons given above, the appeal which the applicant wishes to bring is devoid of merit and has no realistic prospects of success.
Therefore, the application will be dismissed. The applicant must pay the Minister’s costs.
DISPOSITION
Orders will be made accordingly.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. Associate:
Dated: 16 February 2023
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