Efd19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 567
•24 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EFD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 567
File number(s): SYG 2778 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 24 March 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Visitor (Class FA) (Subclass 600) visa – whether the Tribunal’s assessment of the applicant’s knowledge of Christianity was unfairly and invalidly conducted – legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed. Legislation: Migration Act 1958 (Cth), s 426 Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424
Minister for Immigration and Citizenship v Le (2007) 164 FCR 151
Minister for Immigration and Citizenship v Li (2013) 297ALR 225
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115
Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 32 ALD 347
SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129
SGBB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2003) 199 ALR 364
SZBEL V Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Number of paragraphs: 51 Date of last submission/s: 9 March 2021 Date of hearing: 9 March 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Counsel for the Respondents: Mr Johnson of Counsel appeared on behalf of the First Respondent. ORDERS
SYG 2778 of 2019 BETWEEN: EFD19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
24 MARCH 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs, fixed in the amount of $5600.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of China. The applicant first arrived in Australia on 21 June 2015 as the holder of a Visitor (Class FA) (Subclass 600) visa.
On 17 September 2015, the applicant lodged an application for a protection visa. On 5 September 2016, a delegate of the Minister for Immigration (“the delegate”) made a decision to refuse to grant the applicant his visa.
The applicant sought merits review with the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 8 October 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is both lengthy and detailed, running to some 123 paragraphs. Paragraph 23 of the Tribunal’s decision, details how it is claimed that the applicant converted to the Christian faith. This included distributing pamphlets and spreading Christian teachings. The applicant claims that these activities were discovered by police and that a friend organised for him to leave China in June 2015.
At paragraph 31 through to 36 of its decision, the Tribunal deals with nondisclosure certificates that were present on the file. Some of the material was irrelevant to the applicant. At paragraph 36 of its decision, the Tribunal stated that there are other sections that were sensitive and that it would send them back to the Department of Home Affairs (“the Department”), for them to consider whether they would reissue the certificate in relation to sensitive areas. It is noted that the representative of the applicant did not make any submissions as to the validity of the certificates.
At paragraph 48 onwards of its decision, the Tribunal deals with some of the applicant’s history, together with his answers to questions that were put to him during the course of the hearing. At paragraph 59 of its decision, the Tribunal noted that it asked the applicant when his Visitor’s visa to Australia was granted to him. The applicant responded that he did not know, he applied for it early in June. The applicant later stated that he did not know how his friend obtained the visa for him. At paragraph 67 of its decision, the Tribunal notes that it asked the applicant why he did not go to Russia, a country which he had previously visited. The applicant’s response was that was not his choice and that he got a visa where ever he could get one.
At paragraphs 76 to 79 of its decision, the Tribunal questioned the applicant about claims that he was convicted of a crime after he left China. The Tribunal asked if the applicant had any proof of his conviction. The applicant responded that he has no proof.
Paragraphs 95 through to 101 of the Tribunal decision, deal with relevant country information, including the Department of Foreign Affairs and Trade (“DFAT”) reports of October 2019, with particular reference to Fujian Province.
At paragraph 104 of its decision, the Tribunal concluded that the applicant displayed some knowledge of Christianity, however, that knowledge was shallow and had the impression of being learnt without any depth of conviction. The applicant did not know what a sacrament was. When asked to provide detail about whether the applicant took communion, he indicated that he did. The applicant provided a response about communion and the juice being God’s blood. When the applicant was asked how the blood could cleanse sins, he could not respond and said it is God’s work. The applicant made no mention of Jesus being the son of God, nor could he give a persuasive answer in relation to the meaning of communion.
At paragraph 106 to 108 of its decision, the Tribunal considered letters that have been provided in support of the applicant’s attendance at the Padstow Chinese Congregational Church. One letter contained an inconsistency, in that it stated that the applicant had attended the church since May 2015, when the applicant only arrived in Australia in June 2015. The Tribunal concluded that this put doubt on how well the author knows the applicant and is able to comment on his commitment to the church.
At paragraph 109 of its decision, the Tribunal was not satisfied that the applicant was a committed underground Christian or that he would put himself or his family at risk by returning to China and preaching, proselytising or delivering pamphlets. At paragraph 115 of its decision, the Tribunal expressed concern that the applicant was unable to explain why it appeared that he had been organising for his visa to Australia before the events he complained about as causing him to leave, had unfolded.
Having considered all the applicants claims, the Tribunal was not satisfied that he would suffer serious harm for reason of being a member of a particular social group, religion or any other grounds under the Refugee Convention, if he were to return to China now and the reasonably foreseeable future. The Tribunal for the same reasons, was also not satisfied that the applicant met the complimentary protection criteria. In these circumstances, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
GROUNDS OF JUDICIAL REVIEW.
The grounds of judicial review are set out in an Initiating Application filed with the Court on 28 October 2019. The grounds of review are as follows verbatim (noting that they are handwritten and unclear in some respects):
Ground One
I believe the Tribunal made unreasonable arguments to support its decision in its review of my protection visa case. The arguments made by the Tribunal cannot be reasonably reached from the hearing and from the evidences in the case. The particulars are listed below.
Ground Two
The Tribunal’s assessment of my knowledge of Christianity was unfairly and invalidly conducted in such a way that it could not have conceivably determined the extent of my knowledge of Christianity. To provide context, the Tribunal gave me a couple of arbitrary and generic questions about Christianity. There was no structure of specificity to the questions and the Tribunal did not indicate what it wanted me to talk about. Consequently, I was unsure how to answer them and my answers came off as very general and vague. I do not believe the Tribunal could have extracted any reliable information based on this mini exam during the hearing because the questions were too short, too arbitrary and not structured properly.
Ground Three
The Tribunal unfairly claimed the letters from the church parishioners (the evidence for my “fervent belief that would be associated with a convert”) was not sufficient without going through the necessary legal procedures. The letters I provided a very critical to my legitimacy as a Christian because it is the best tangible evidence I can provide, my other claims were rejected by the Tribunal because the Tribunal claimed they were not credible, however, the Tribunal cannot treat the evidence of the church parishioners in the same manner without notifying them and asking them to comment, I believe the Tribunal’s failure to invite the evidence givers, (the church parishioners) to comment on the information before the Tribunal deemed them to be insufficient is an error in legal procedures.
Ground Four
The Tribunal has picked and chosen particular country information that supports its reasons while not giving regards to opposing country information, specifically, the Tribunal saying that “generally in Fujian the churches are tolerated”, however if the Tribunal considered the latest country information from 2018 and 2019 DFAT reports, the Tribunal would find information of Chinese Communist party tightening restrictions on restrictions on religion even more than before, areas in Fujian had become extremely dangerous for unregistered churches and its followers, I believe the Tribunal should consider the new country information because it will understand the reason why I fear returning to China so much.
Ground Five
I believe the Tribunal has erred in law on multiple occasions as outlined above and, thus, its decision was not made out of fairness. I believe it is only fair for the Tribunal to consider my case fairly.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter in the Mandarin language. Despite Court orders, no written submissions were provided to the Court to supplement the grounds of judicial review filed in the Initiating Application.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of the relevant Court Books, and that the first respondent’s submissions had been translated to him. The Court also provided the applicant with a pen and paper so that he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also carefully explained the process by which the hearing would be undertaken.
The applicant told the Court that he relied upon his grounds of judicial review. The questions asked, were very arbitrary. The Tribunal unfairly chose not to call relevant witnesses or believe the applicant’s evidence.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to say anything further in reply. The applicant said that he had nothing further to say.
THE FIRST RESPONDENT’S SUBMISSIONS
It was submitted on behalf of the first respondent that grounds one and five simply allege that the Tribunal’s findings were unreasonable and unfair. Further and better particulars are outlined under grounds two, three and four.
Ground two complains that the Tribunal unfairly assessed the applicant’s knowledge of Christianity by asking him arbitrary and generic questions with no structure or specificity.
It was submitted that the subject of the applicant’s knowledge of Christianity was also in issue before the delegate, whose decision was provided by the Tribunal to the applicant: (see SZBEL V Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]).The delegate had found that the applicant had mentioned correctly some aspects of Christianity, but that his responses were, in the main, fairly shallow and not indicative of a deep or personal understanding of the Christian religion. The delegate noted that the applicant had failed to mention Jesus Christ and did not mention the crucifixion of Jesus in saving sinners through the resurrection. The delegate considered the role of Jesus was a core and fundamental matter to Christian belief. The applicant’s failure to mention those events indicated he was not a genuine or committed Christian.
It was submitted on behalf of the first respondent that the Tribunal’s questions were of necessity inquisitorial in nature, in that the applicant was asked broadly what his religion meant to him, which allowed him to give unrestricted evidence and address on his own terms, the primary basis for his claim for protection. Further, the Tribunal then asked the applicant more specific questions regarding sacraments and communion, which flowed from his previous answers in the context of his claim that he had been a Christian for some time, attends a church and was baptised.
It was submitted that the applicant was given a real and meaningful opportunity to give evidence in relation to his knowledge of Christianity, such that it was not unreasonable for the Tribunal to not continue with further specific questions. Further, the Tribunal is also not obliged to expose its thought processes or provisional views for comment, before making its decision: (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (“SZGUR”) at [9]).
The Tribunal is entitled, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution based on religion, to explore the level of his or her knowledge and understanding of the religion; (see SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]).
It was submitted that the Tribunal’s reasons at paragraph 104 of its decision, must be read in the context of the applicant’s claims and the evidence before it. Further, the first respondent submited that the Tribunal assessed whether the level of knowledge actually displayed by the applicant, corresponded with the level of knowledge likely to be possessed by person in the circumstances of the applicant and not to an arbitrary standard: (see Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [65]). It was submitted that was reasonable for the Tribunal to expect the applicant to be able to provide more relevant and detailed information regarding Christianity including more relevant and detailed information regarding sacraments and Communion. The applicant ought to have mentioned Jesus Christ, given his emphasis on sin, when describing what Christianity meant to him. There is nothing unfair in the Tribunal’s reasoning, in relation to the applicant’s faith: (see Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115 (“SZLSP”) at [39]).
In ground three, the applicant contends that the Tribunal erred in failing to invite the authors of the two letters of support that he had submitted, to give oral evidence at the hearing. The first respondent notes that the applicant was expressly asked, when invited to attend the hearing, as to whether he would request the Tribunal to take evidence from a witness. The applicant did not answer: (see CB 236). In those circumstances, the Tribunal was not obliged to consider whether the authors should be called to give evidence as witnesses for the purposes of s 426 of the Migration Act 1958 (Cth) (“the Act”): (see AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424 at [63] (“AOO16”)).
While the first respondent notes that the Tribunal’s reasons do not disclose that the applicant made such a request at the hearing, the first respondent submits that the Tribunal did not act unreasonably in the conduct of the review by not considering whether to call the authors of the letters. First, the applicant made no specific request of the Tribunal either in writing or orally before it, to take all evidence from the authors of the letters.
Secondly, this was not a failure to make an inquiry about a critical factor, the existence of which is easily ascertained: (see Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at 36). It was submitted that the Tribunal ultimately accepted the gist of the evidence given by the authors that being that the applicant may have attended church in Australia and therefore there was no critical fact to inquire of them.
Thirdly, the Tribunal noted that the Chairman of a church stated that the applicant started attending the church from a month before the applicant was even in Australia and so put into doubt how well he knew the applicant. In these circumstances, it is understandable that the Tribunal may have formed the view that any further evidence from the authors was not of significance: (see AOO16 at [56]-[60]).
Ground four alleges that the Tribunal erred in the country information it relied upon, when considering the risk of harm to the applicant when practising religion in China. At paragraphs 95 to 100 of its decision record, the Tribunal set out country information before it, which included 2016 and 2019 DFAT reports. The Tribunal noted at paragraph 110 of its reasons that country information was generally, that in Fujian, churches were tolerated. The Tribunal noted that the applicant could only claim that state sanctioned churches were run by humans but that underground churches were run by God. The Tribunal was not satisfied that this showed a true understanding or conviction in relation to why the applicant could not attend a state sanctioned church in China. Further, at paragraph 109 of its decision, the Tribunal was not satisfied that the applicant was a committed underground Christian or that he would put himself and his family at risk by returning to China and preaching, proselytising or delivering pamphlets.
It was submitted that it was well-established that the choice of and assessment of the weight of country information, is a matter for the Tribunal: (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [13)]. There was nothing unreasonable illogical or irrational in the reliance on country information. The findings of the Tribunal were open to it, on the information that was before it.
As a matter of fairness, the first respondent noted that there were non-disclosure certificates issued. It was submitted that the Tribunal complied with its procedural fairness requirements by disclosing the existence of the first certificate to the applicant.
In relation to the second certificate, it was also disclosed. Further, the Tribunal did not take the material into account in making its findings and no jurisdictional error arises. Counsel for the first respondent tendered an Affidavit of his instructing solicitor and the material that was the subject of the non-disclosure certificate. The Court inspected that material and noted that the issues covered in the material did not form any part of the Tribunal’s consideration of the applicant’s matter.
CONSIDERATION
It is for the applicant to satisfy the Tribunal that they meet the requirements for being a refugee: (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). It is well established that the Tribunal is not required to accept uncritically, any and all claims made by an applicant: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out: (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 32 ALD 347 at [348]).
Credit findings are not subject to jurisdictional error if they were open to the Tribunal on the materials and evidence before it and were reached on a logical and probative basis. Findings on credit are open to a Tribunal, provided that they are not tainted by unreasonableness and or subject to any failure to afford procedural fairness: (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]).
A Tribunal is entitled to ask questions about an applicant’s knowledge of a religion when that is the basis for seeking protection. In SZLSP the following was said at [38]-[39]:
[38] …As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
[39] If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims…
Care however, must be exercised if the answers differ in matters of expression, emphasis or detail in regards to the expected knowledge.
Grounds one and five of the application for judicial review are not proper grounds of review and merely take issue with the Tribunal’s decision, suggesting that it was unreasonable. No particulars are provided. No error arises.
Ground two complains that the Tribunal unfairly assessed the applicant’s knowledge of Christianity by asking arbitrary and generic questions with no structure or specificity.
The Tribunal’s questioning of the applicant’s knowledge of Christianity is set out at paragraphs 74 and later at paragraphs 83 through to 85 of its decision. The Court accepts the submission of the first respondent that the applicant’s knowledge of the Christian faith was squarely an issue, as the delegate’s decision had been provided to the applicant. A review of the questions asked by the Tribunal and the answers given by the applicant to the Tribunal, form a rational basis for the conclusion that the knowledge of the applicant of Christian principles was vague and shallow. The Tribunal noted that the applicant made no mention of Jesus being the son of God, nor was the applicant able to give a persuasive answer in relation to the meaning of communion. The Tribunal did not adopt an inappropriate or unfair method of testing the applicant’s knowledge of Christianity.
As is set out above, it is legitimate for the Tribunal to explore what a person knows about the religion, in this case Christianity, to assess the genuineness of the claim. The Tribunal is entitled to evaluate the applicant’s answers against probative material, in evincing the doctrines of the religion in question. The weight to be given to that evaluation will generally be a matter for the Tribunal: (See SZLSP at [38]). It is unsurprising that the Tribunal did not indicate to the applicant, as he complains, what it wanted him to talk about. It was for the applicant to take an opportunity, in the Tribunal hearing to provide as much information as he was able to, about his knowledge of the Christian doctrine. The Court is satisfied that the applicant had a real and meaningful opportunity to give evidence in relation to his knowledge of Christianity. Further, the Tribunal was not required to expose its thought processes or provide commentary before making the decision: (see SZGUR at [9]).
The Court is not satisfied that the Tribunal applied an arbitrary standard in relation to what it expected the applicant’s knowledge of Christianity to be, rather, it gave him an opportunity to indicate his knowledge, which it then found to be vague and shallow.
The Court is not satisfied that this conclusion of the Tribunal was illogical, irrational or subject to legal unreasonableness. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that a Court disagrees with the consideration of the matters or the evaluative judgements made by the decision-maker: (see Minister for Immigration and Citizenship v Li (2013) 297ALR 225 at [30] and [113]). Ground 2 reveals no jurisdictional error.
Ground 3 complains that the Tribunal fell into error in not inviting the authors of the two letters of support to give oral evidence. The first respondent notes that the applicant was asked whether he would request the Tribunal to take oral evidence, but he did not answer. In these circumstances, the Court is satisfied that the Tribunal was not obliged to consider whether the authors should be called to give evidence. Further, the Court is satisfied that the decision not to call the authors of the letters of support was not unreasonable, given the concerns that the Tribunal had regarding the applicant’s genuine conversion to Christianity, based on the shallow and vague answers he gave to questions from the Tribunal. Additionally, the Tribunal had significant concerns as to the weight it could place on those letters, given that one of the letters indicated that the applicant had been attending the church at a time when he was not in Australia.
The Court is satisfied that the Tribunal did accept the “gist” of the letters that the applicant had attended churches in Australia and accordingly, it was not unreasonable for the Tribunal not to seek oral evidence from the authors in the circumstances of this particular case.
Ground 4 alleges that the Tribunal erred in the country information relied upon, when considering the risk of harm to the applicant in practising his religion in China. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information, is a matter for the Tribunal: (see NAHI at [405] and SGBB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2003) 199 ALR 364 at [17]). The Court is satisfied that the findings of the Tribunal, particularly in relation to the fact that DFAT assesses that individuals in Fujian have historically practiced religion more freely within state-sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party, provided a logical and probative basis for the Tribunal to find that the applicant would not face significant harm if he were returned to China. The Tribunal also found that it was unlikely that the applicant would undertake practices if he were returned that would put him at risk by proselytising or engaging in other activity that might bring him to the notice of Chinese authorities. In coming to this conclusion, the Tribunal was not satisfied that the applicant was a committed underground Christian. Ground four reveals no jurisdictional error.
As a matter of fairness, the Court notes that there were two nondisclosure certificates. The first was discussed with the applicant during the course of the hearing. The applicant’s representative declined the opportunity to make any submissions in regards to the validity of the certificate.
In relation to the second nondisclosure certificate, the applicant accepted the validity of the certificate. The Tribunal did not make any dispositive findings on the basis of the information contained within that certificate. In these circumstances, the Court is satisfied that there was no procedural irregularity in the manner that the Tribunal dealt with the material covered by the certificates and no jurisdictional error arises as a result.
As the applicant was unrepresented, the Court perused the decision of the Tribunal but was unable to detect any jurisdictional error that was not articulated by the applicant.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 24 March 2021
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