Eja19 v Minister for Immigration

[2020] FCCA 1192

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJA19 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1192

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 424, 424A

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14

DAO16 v Minister for Immigration (2018) 258 FCR 175; [2018] FCAFC 2

ECF19 v Minister for Immigration [2020] FCCA 1148
Minister for Immigrationv SZIAI [2009] HCA 39; (2009) 259 ALR 429

NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263

NAHI v Minister for Immigration [2004] FCAFC 10

SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26

First Applicant: EJA19

Second Applicant: EKP19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2869 of 2019

Judgment of: Judge Driver

Hearing date: 14 May 2020

Delivered at: Sydney

Delivered on: 14 May 2020

REPRESENTATION

Applicants appeared in person by telephone

Solicitors for the Respondents: Mr A. Gardner of Minter Ellison by telephone

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2869 of 2019

EJA19

First Applicant

EPK19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 15 October 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.  There are two applicants, who are a wife and her husband.  The material claims were made by the applicant wife, who I will refer to in these reasons as the applicant. 

2. Background facts relating to the applicant’s claims for protection and the Tribunal decision on them are set out in the Minister’s outline of submissions filed on 28 April 2020.  

3. The applicants are a wife (the applicant) and husband (the second applicant) and are citizens of the People's Republic of China. On 21 October 2015, the applicants arrived in Australia as holders of visitor (subclass 600) visas, valid until 21 January 2016, on false passports.[1]

   [1] CB 215, 222

4. On 13 January 2016, the applicants lodged an application for protection visas.[2] In that application, the applicants admitted to arriving in Australia on false passports and annexed a statutory declaration of the applicant dated 13 January 2016 which outlined protection claims on behalf of the applicants.[3]

   [2] CB 1–94

   [3] CB 65–70

5. On 14 September 2016, the applicants attended an interview with the delegate.[4]

   [4] CB 216–217

6. On 23 September 2016, the delegate made a decision to refuse to grant the applicants protection visas.[5]

   [5] CB 214–230

7. On 10 October 2016, the applicants applied to the Tribunal for review of the delegate's decision.[6]

   [6] CB 231–237

8. On 25 September 2019, the applicants attended a hearing before the Tribunal to give evidence and to present arguments.[7]

   [7] CB 317–319

9. On 15 October 2019, the Tribunal made a decision affirming the delegate's decision not to grant the applicants protection visas.[8]

   [8] CB 339–352

Applicant’s claims

1. In a statutory declaration annexed to the protection visa application,[9] the applicant claimed that she (and the second applicant) feared harm from the Chinese Public Security Bureau (PSB) as Christians and members of the Local Church (also known as 'Shouters').

   [9] CB 65–70

2. She claimed to have started attending the Local Church in October 2011 due to difficulties she was experiencing in having a baby. She was baptised in December 2011 and gave birth to twin boys in November 2012. She then became involved in providing religious training for Local Church members from a named village and, from 2014 to 2015, arranged for those attending training to stay at a house belonging to the second applicant's family.

3. She claimed that, in August 2015, the “brother” of the Local Church with whom she had been facilitating the religious training was arrested by the PSB. Fearing for her life, she then contacted a friend who worked in the import/export business to assist her and the second applicant in leaving China.

4. She claimed that, on 28 September 2015, the PSB had come to her house to arrest her but she was visiting her mother at the time. She and the second applicant subsequently stayed with a friend until arrangements were made for them to depart China on 18 October 2015. She claimed that she and the second applicant were able to leave China under their own names as their friend bribed an officer at the airport but that they arrived in Australia on false passports.

5. She claimed that she was now being chased by the PSB in China as a person who played an active role in the Local Church and that she had continued to attend Local Church services since arriving in Australia.

6. In his interview with the delegate, the second applicant claimed to have become a member of the Local Church in Australia and had been baptised.[10]

   [10] CB 217–218

Tribunal decision

1. The Tribunal recorded that it held concerns about the credibility of the applicants[11] and outlined those concerns in its decision[12] as follows:

   a)The Tribunal outlined the evidence that the applicant had put forward with respect to the religious training she claimed to have facilitated for Local Church members from the named village before the Tribunal[13] and to the delegate.[14] The Tribunal found that the applicant did not advance “important claims” that she made to the Tribunal on this issue to the delegate, such as the working relationship of the Local Church members to the “brother” of the Local Church with whom she facilitated the religious training.[15] The Tribunal recorded that it had listened to the recording of the delegate's interview and was satisfied the applicant was questioned in sufficient depth to be able to advance these claims. The Tribunal found that her failure to do so created “significant inconsistency” between her evidence to the delegate and to the Tribunal and reflected poorly on the applicants' credibility.[16]

   b)The Tribunal found the applicant's claim that a group of people would come from another province to her area for religious training for a period of a month but spend the majority of their time in the “brother's” shoe factory to be “highly improbable”. The Tribunal also had regard to the “vagueness” of the applicant's description of the training.[17]

   c)The Tribunal recorded that it had “difficulty accepting” the applicant's claim that she continued to attend secret church gatherings after the arrest of the other Local Church members in August 2015 and after she had taken steps to make arrangements for her to leave China.[18]

   d)The Tribunal found that it was “not persuaded” by the applicants' explanation as to why the second applicant became a very firm believer in Christianity after the applicants were able to evade police on 28 September 2015. The Tribunal further noted that the applicants' evidence on this issue to the Tribunal was inconsistent with that provided to the delegate.[19]

   [11] CB 341, [8]

   [12] CB 341–349, [9]–[56]

   [13] CB 341–342, [9]–[13]

   [14] CB 342–344, [14]–[22]

   [15] CB 344, [24]

   [16] CB 344, [25]–[26]

   [17] CB 344–346, [27]–[37]

   [18] CB 346–347, [38]–[44]

   [19] CB 349, [51]–[56]

2. The Tribunal had regard to these concerns cumulatively and found that neither of the applicants were witnesses of truth and that the account of events on which their protection claims were based was false.[20] The Tribunal accepted that the applicants “may well have” resorted to the use of an agent to leave China and enter Australia on false passports but found that there was no credible evidence as to why the applicants left China and came to Australia.[21]

   [20] CB 350, [57]–[59]

   [21] CB 350, [60]

3. The Tribunal accepted that the applicants had been attending the Local Church in Australia and that the second applicant had been baptised but found that this did not overcome the Tribunal's credibility concerns.[22] The Tribunal added that the applicant had displayed a rudimentary knowledge of Christianity and the Local Church to the delegate and the Tribunal.[23] Accordingly, the Tribunal disbelieved the applicants' claims that they became Christian in China and found that they were not genuine Christians who would seek to practise Christianity on return to China.[24]

   [22] CB 350–351, [62]

   [23] CB 351, [63]

   [24] CB 351, [65]

4. The Tribunal found that there was no credible evidence that the applicants suffered harm in China or that the Chinese authorities seek to harm the applicant, nor was there credible evidence as to why the applicant did not want to return to China. Accordingly, the Tribunal found there was not a real chance the applicants would suffer serious harm in China and that the applicants did not hold a well-founded fear of persecution.[25] For the same reasons, the Tribunal found there were not substantial grounds for believing that the applicants would suffer significant harm if returned to China.[26]

   [25] CB 351, [66]

   [26] CB 351, [67]

5. For the reasons given above, the Tribunal found that the applicants did not satisfy paragraphs 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Migration Act) and decided to affirm the decision not to grant the applicants’ protection visas.[27]

   [27] CB 352, [68]–[69]

6. These proceedings began with a show cause application filed on 5 November 2019.  The applicants continue to rely upon that application.  There are six handwritten grounds in it. I note in passing that the grounds appear to have been written by the same person who wrote the grounds of review in a matter I dealt with on Tuesday of this week.[28]  That applicant also claimed to fear harm as an underground Christian from the same part of China as these applicants. The grounds in this matter are:

   [28] ECF19 v Minister for Immigration [2020] FCCA 1148

   1. I firmly believe that the Administrative Appeals Tribunal (the tribunal) has, wrongly and unfairly, decided the application made by me, including my husband, for protection visas. I firmly believe that my husband and I are genuine refugees and hat we have a real chance of being subject to persecution owning to our Christian beliefs of the local church (a.k.Shouter). I firmly believe that my husband and I have been deprived of our rights to be protected by the Australian government due to legal errors of the tribunal.

   2. Firstly, the Tribunal erred in law because it did not consider important country information contained in the 2018 and onwards 2018 DFAT reports dated 3 october 2019. There is information in these reports that indicate that my husband … and I as devour Christians and active members of local church in Australia. Will have a real chance of suffering from significant harm if I return to china. Especially because in the recent years, president Xi Jinping and Chinese community party have placed heavier regards on tightening their clearly strict anti-religious policies. I believe the Tribunal should consider country information that direct relevant to my case. I believe a failure to do so means the Tribunal has not made a complete and valid judgement on the evidences in my case.

   3. Secondly, I believe the Tribunal did not place adequate consideration on my activities in my local church in Australia. The Tribunal failed to come to a confident conclusion as to whether my religious activities in Australia where genuinely motivated or motivated or motivated for the purposes of seeking protection visa. I believe the Tribunal should have investigate in much further detail and sought to reach a convincing conclusion on this matter before making their decision because my activities in Australia, if they are motivated by genuine religious purposes. have direct relevance and influence on whether I will experience harm upon returning to china. relevance and influence on whether I will experience harm upon returning to china.

   4. Thirdly, the Tribunal referred to some of evidences that I gave in my interview before the delegate. The Tribunal, with reference to these evidences then claimed I was being in consistent because I did not mention the same evidence in my hearing before the Tribunal. However the purpose of the hearing before the Tribunal, as written in my invitation to the hearing, was to provide additional comments and evidences to my case. There is no specific instruction for me to recount the evidences that I gave before the delegate. I was given the impression that the Tribunal had access to my evidences that I gave in my interview with the delegate and that there was no need for me to present the evidence to the Tribunal as exactly I had to the delegate. Also, if the Tribunal was concerned that I missed some of the information from the interview, then it seems to the that the Tribunal is at fault for not bringing them up at the hearing in order for me to have a chance at commencing or responding to them in not doing so. I feel the Tribunal already intended, from that point, to be convinced that I was not credible in my evidences. by extension, I feel the Tribunal’s argument that I am incredible because I did not bring up certain information as I did with the delegate to the be disingenuous and unfair.

   5. on the contrary to the Tribunal’s decision, my husband 2 are devout Christians and genuine members of the local church (a.k.a the shouters) and both of us are wholly committed to the faith, the teachings and the practices of the Local church, and we particularly evangelize to the people around us actively. Our commitment to my faith in the Local church take up the majority of our active life and it will continue to be the case if we return to china. Because of this if we are return to china, we will face significant harm including prosecution from the Chinese communist party even more so than ever before because of their recent tightening of antireligious policies.

   6. my husband and I have to sincerely request his honour to set aside the Tribunal’s decision and send our case back to the Tribunal and order the Tribunal to reassess our applications according to the law.

(errors in original)

1. I received as evidence the applicant’s affidavit filed with her application.  I also received the Court Book filed on 17 January 2020. 

2. Only the Minister filed pre-hearing written submissions in accordance with procedural orders made by a registrar.  I invited oral submissions from the applicant today.  Her oral submissions were quite extensive.  In part, these were a recapitulation of her claims for protection which go to the merits of the Tribunal decision.  She did, however, raise specific matters relating to the procedure before the Tribunal and its reasoning.  In particular, the applicant considers it unfair that the Tribunal did not explore further her practice of her religion in Australia.

3. She considers that her Australian practice was not properly considered and the Tribunal should have contacted the authors of letters of support which she had provided.  The Minister responds that the applicant’s Australian practice was considered and the Tribunal was under no duty to make further inquiries.  The Minister also notes that the applicants did not nominate any of the authors of the letters as witnesses. 

4. In my view, no purpose would have been served by the Tribunal contacting the authors of the letters of support.  There was no dispute that the applicant had attended Local Church activities in Australia.  There was also no dispute that the authors of the letters of support regarded the applicant as a genuine Christian.  If those authors had been contacted, that is probably what they would have told the Tribunal.  The applicant’s difficulty was that, notwithstanding those letters of support, the Tribunal was not persuaded that the applicant was a genuine Christian. In my view, that conclusion was open to the Tribunal on the material before it. 

5. The applicant is also concerned that the Tribunal hearing she attended was not a fair hearing opportunity.  Based upon the hearing invitation, she says she attended the hearing in order to expand upon her claims and to deal with any problems the Tribunal may have had.  She asserts, however, that she was, in effect, put on the defensive and interrogated about inconsistencies between what she told the delegate and what she had told the Tribunal.  She asserts this was unfair.

6. The Minister notes that the applicants were invited to comment on the asserted inconsistencies, purportedly under s.424A of the Migration Act, whether or not that section was in fact enlivened. The Minister notes that the applicant’s responses were considered by the Tribunal at [26], [44] and [53] of its reasons. I see no error in the Tribunal’s approach.

7. The applicant also asserts orally that the Tribunal was biased and that this was clear from the outset of the hearing.  The applicant asserts, in effect, that the Tribunal’s review was merely a rubber stamping of the decision of the delegate.  I disagree.  It is apparent from the Tribunal’s reasons that the Tribunal engaged in a detailed consideration of the applicant’s claims in addition to the decision of the delegate.  The Tribunal was entitled to explore those claims in the manner it did and no apprehension of bias is indicated from the decision. 

8. The applicant also claimed that there was a failure to consider country information in the form of a country report on China.  That was also raised in the applicant’s written grounds.  The Tribunal referred to the relevant country report and I see no error.  More generally, the mere fact that underground Christians in China may experience difficulties has no impact on the applicants, if they are not underground Christians.

9. The applicant also referred to a crackdown by the Chinese authorities against underground Christians in China. Again, however, that is not a concern for the applicants if they are not underground Christians. The Tribunal found that they were not and that their practice of the religion in Australia was not genuine. That practice was considered, rather than being disregarded under s.5J(6) of the Migration Act.[29]

   [29] See footnote 8 to the Tribunal decision.

10. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.   

Ground 1

1. The first ground makes a general assertion that the Tribunal acted “wrongly and unfairly” and is, in effect, an introduction to the grounds that follow and does not constitute a proper ground of review.

Ground 2

1. Ground 2 is a complaint that the Tribunal did not consider country information contained in the “2018 DFAT reports dated 3 October 2019” on China. The applicants assert that there is information in these reports that indicates they have a real chance of suffering significant harm on return to China but do not otherwise particularise the content of this information.

2. It is well-established that the choice and the assessment of the weight of country information is a matter for the Tribunal.[30]

   [30] NAHI v Minister for Immigration [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ

3. The Tribunal's decision record indicates that the Tribunal did have regard to the information in the DFAT reports on China but found that the information “[was] not relevant to the grounds on which the review [had] been determined”.[31]

   [31] CB 341, [7], footnote 2

1. The “grounds on which the review [had] been determined” is evidently a reference to the Tribunal's comprehensive adverse credibility findings, upon which it found neither of the applicants were witnesses of truth and rejected their claims.[32]

   [32] CB 350, [57]

2. These findings were based on the Tribunal's observations that, among other things, the applicants had provided inconsistent evidence to the delegate and the Tribunal[33]  and had made claims that were “highly improbable”.[34] These matters went to the core of the applicants' protection claims and, in turn, went to their credibility. These findings were open on the material, made in a procedurally fair manner, and had a logical and probative basis.[35]

   [33] CB 344, [9]–[26], CB 349, [51]–[56]

   [34] CB 346, [37]

   [35] DAO16 v Minister for Immigration (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [30] per Kenny, Kerr and Perry JJ

3. Having made these findings, it was open to the Tribunal to find that the applicants did not meet the refugee criterion without reference to any independent country information on the risk of harm to Local Church members in China.

Ground 3

1. Ground 3 is a complaint that the Tribunal “did not place adequate consideration” on the applicants' activities with the Local Church in Australia and “should have investigated in much further detail”.

2. The first aspect of this complaint essentially takes issue with the little weight the Tribunal gave to the applicants' activities with the Local Church in Australia in its consideration of whether the applicants were genuine adherents of Christianity.

3. The applicants claimed to have regularly attended Local Church services since arriving in Australia and submitted a number of photographs and letters of support from “brothers” of the Local Church and other church attendees in support of this claim. The Tribunal referred to this evidence in its decision[36] and accepted that the applicants had been attending the Local Church in Australia.[37]

   [36] CB 350, [61]

   [37] CB 350, [62]

4. Despite this, the Tribunal stated that it was “not persuaded” to overlook its concerns with the applicants' credibility and found that there was no credible evidence before it as to why the applicants had been attending church in Australia.[38] I accept that this finding was open to the Tribunal, noting that its credibility findings were free from error and that the weighing of various pieces of evidence is a matter for the Tribunal.[39] There was no obligation on the Tribunal to speculate as to the reasons for the applicants’ church attendance.

   [38] CB 350–351, [62] and [65]

   [39] Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197] per Gummow and Hayne JJ

5. To the extent that this complaint could be construed as an allegation that the Tribunal did not consider a sur place claim to fear harm on the basis of the applicants' activities in Australia, no such claim was expressly raised nor clearly arose from the materials before the Tribunal.[40] The evidence provided regarding the applicants' activities with the Local Church in Australia was clearly submitted in support of their claim to be genuine Christians and this claim was considered, and rejected, by the Tribunal.

   [40] NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 per Black CJ, French and Selway JJ

6. As for the second aspect of this complaint, the Tribunal is not under a general duty to make further inquiries although in some rare or exceptional circumstances may be under an obligation to make an “obvious inquiry about a critical fact, the existence of which is easily ascertained”.[41]

   [41] see Minister for Immigrationv SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

7. There is nothing apparent on the face of the record to indicate an obvious further inquiry that could have yielded a useful result. The applicants have also not provided any particulars as to the nature of the inquiry that they argue should have been undertaken by the Tribunal.

8. The Tribunal did consider the evidence submitted by the applicants in support of their involvement in Local Church activities in Australia and accepted that the applicants had engaged in those activities. However, due to its concerns regarding the applicant's credibility, the Tribunal found that there was no credible evidence before it as to the reason for the applicants' involvement in those activities.[42] As I have already found, this finding was open to the Tribunal and was not without a logical or probative basis.

   [42] CB 351, [65]

Ground 4

1. Ground 4 is a complaint that the Tribunal did not raise the inconsistencies between the applicants' evidence to the delegate and to the Tribunal at the hearing, which it relied upon in its decision to draw adverse credibility findings.

2. By letter dated 27 September 2019, two days after the Tribunal hearing, the Tribunal invited the applicants to comment on the inconsistencies in the evidence provided to the delegate and to the Tribunal with respect to the applicant's religious training and the adoption of Christianity of the second applicant. The Tribunal also invited the applicants to comment on the perceived implausibility of the applicant continuing to attend the Local Church after members had been arrested. The letter informed the applicants that these issues may cause the Tribunal to find the applicants are not witnesses of truth.[43]

   [43] CB 328–330

3. On 10 October 2019, the Tribunal was provided with the applicant's response to the Tribunal's letter,[44] which was considered by the Tribunal in its decision.[45]

   [44] CB 331–334

   [45] CB 344, [26], CB 347, [44] and CB 349, [53]

4. The Tribunal's procedure and reasoning do not reveal any breach of the Tribunal's obligations under s.424A of the Migration Act.

5. In this respect, it is arguable that no obligations arose under s.424A(1) of the Migration Act in the first place. That is because there was no information before the Tribunal which in its terms rejected, denied or undermined the applicant's claims to be a person to whom Australia owed protection obligations.[46]

   [46] SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ

6. Rather, what counted against the applicants was the inconsistency between various pieces of evidence given at different times. This is not “information” for the purposes of s.424A(1) of the Migration Act, because “information”' relates to “the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[47]

   [47] Ibid at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ

7. Secondly, and in any event, even if the Tribunal did have obligations under s.424A(1) of the Migration Act, it discharged them by sending the s.424A letter.

Grounds 5 and 6

1. Ground 5 is a mere restatement of the applicants' claim to be devout Christians and members of the Local Church who would face harm on return to China, while ground 6 is a request to the Court that the Tribunal's decision be remitted. Neither constitute proper grounds of review. 

2. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

3. I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  The applicant sought to engage in a debate over the merits of the Tribunal decision and the worth of today’s hearing.  She claims impecuniosity and also states that she paid $600 for today’s hearing.  She apparently considers that she has wasted her money.  Impecuniosity is not a reason for the court to refrain from making a costs order.  In my view, the costs sought have been reasonably and properly incurred when considered on a party and party basis. 

5. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 20 May 2020