Epp17 v Minister for Immigration
[2018] FCCA 591
•14 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EPP17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 591 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – applicant asserting illness and lack of sleep at the time of appearance before the Tribunal – illness and lack of sleep alleged to have resulted in inconsistencies in applicant’s evidence – whether impermissible merits review sought – whether Tribunal erred in determining that there was not a real chance of harm – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 474, 476 |
| Cases cited: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 |
| Applicant: | EPP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 554 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 14 March 2018 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made 8 March 2018)
The application be dismissed.
Written reasons for judgment be published from Chambers at a later date.
The applicant pay the first respondent’s costs in the amount of $5,500 by 8 April 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 554 of 2017
| EPP17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 16 October 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 20 September 2017 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The Tribunal Decision appears in the Court Book (“CB”) at CB 100-114.
At the hearing on 8 March 2018 the applicant failed to appear at the listed time. The matter was called outside three times and there was still no appearance by the applicant. The Court indicated to Counsel for the Minister that it had read the originating application, the Tribunal Decision and the Minister’s outline of submissions (there being no outline of submissions filed by the applicant). The Court further indicated that having read those documents it was prepared to dismiss the application and to provide written Reasons for Judgment at a later date. The Minister also sought costs. The following orders were then made:
1. The application be dismissed.
2. Written reasons for judgment be published from Chambers at a later date.
3. The applicant pay the first respondent’s costs in the amount of $5,500 by 8 April 2018.
What follows are the Court’s written Reasons for Judgment referred to in order 2 of the above orders.
Background to Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant, a Chinese citizen, arrived in Australia on 16 August 2014 on a Business Visitor visa (Subclass 600) (“Business Visitor Visa”): CB 59;
b)prior to the expiry of the Business Visitor Visa, on 22 October 2014, the applicant lodged her Protection Visa application claiming the following:
i)she travelled to Japan in 2004 and gradually became a “pious Christian” who reads the Bible every day, prays in church with her brothers and sisters every week, listens to bible lectures and attends church activities: CB 28;
ii)when she returned to China in 2007 she wanted to devote herself to serve God and met another person who shared her belief and joined the Church: CB 28;
iii)in China, “God” is considered a “heresy” and she was required to be very cautious and would often have to watch for police and distribute religious brochures at night: CB 29;
iv)on 13 July 2014 a group of police raided her Church and took the applicant and 15 others to the police station, but as this was the applicant’s first offence she was released although she had to sign a “declaration letter against ‘Almighty God”’ and report to the police station weekly: CB 29;
v)she did not like having her freedom and beliefs restricted and organised for a friend to help her apply for the Business Visitor Visa so she could escape to Australia: CB 29; and
vi)she fears persecution by being victimised and discriminated against, including possible arrest and detainment, for practising the Christian faith: CB 62;
c)on 1 December 2014 the applicant failed to attend a Protection Visa interview with the Delegate, and was given an opportunity to attend a rescheduled interview on 17 March 2015 which she did attend: CB 52.
d)on 21 April 2015 the Delegate’s Decision was to refuse the applicant a Protection Visa: CB 56-57;
e)on 7 May 2015 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 73;
f)on 21 July 2016 the applicant attended a hearing before the Tribunal (“Tribunal Hearing”) and was given an opportunity to provide further information, comments or response in writing by 28 July 2016: CB 93-95; and
g)on 20 September 2017 the Tribunal Decision was to affirm the Delegate’s Decision to refuse the applicant a Protection Visa: CB 98.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)identified and explained the refugee criterion in s.36(2)(a) of the Migration Act and the complementary protection criterion in s.36(2)(aa) of the Migration Act, including the relevant legal principles and tests to be applied when assessing the applicants Protection Visa claims: CB 101-102 at [4]-[15];
b)transcribed verbatim the applicant’s statement that accompanied her Protection Visa Application and detailed the claims she made regarding her Christianity and fear of persecution: CB 103-104 at [21];
c)noted the evidence the applicant presented at the Tribunal Hearing including:
i)she has a daughter studying in China and her mother, father and sister remain living there, she is also divorced, has no family in Australia and she moved to Japan between 2004 and 2007 as she had a poor relationship with her ex-husband and could make more money. She decided to come to Australia as she liked it here and had a friend who was based in Sydney and subsequently relocated to Western Australia and she chose to come with her : CB 105 at [29]-[31] and [34];
ii)in China in 1993, there was an incident involving religion and a person was killed, after that the government started tightening its grip on religious beliefs and if people attend gatherings, they are nervous: CB 105 at [35];
iii)she liked bible stories, but in China one cannot study the Bible at ease and in 2013 (initially she stated 2003) police frequently visited her parents' home and warned them not to allow the applicant to believe in any religion. She only attended the gatherings on a Sunday and did not participate in any other religious activities or have any other church commitments, nevertheless Christianity is important to her because as she is divorced it helps her in life with its love and kindness, she thinks if she follows the Bible it will help her and the Bible has changed her a lot and she relies on and trusts the Bible: CB 105 at [35] and CB 106 at [39]-[40];
iv)in 2012, she started attending family church gatherings with her friend and neighbour that occurred on Sundays at her neighbours home, and she said that 15-16 people would generally meet and they all believed in the love and spirit as contained in the Bible, would sing and talk about Jesus and the Bible and when asked if there was a leader, after some hesitation, the applicant replied that there was a leader but he was not a priest: CB 105 at [37];
v)when prompted on the incident she claims occurred on 13 July 2014, during a gathering she replied that one of the evil church organisations killed a woman, but the religion she believes in is not one of the evil religions in China and she said that she could not quite remember what had happened: CB 106 at [45];
vi)the police would go to places to stop people gathering, she had been arrested, though there was some hesitation in saying so, and when the Tribunal prompted the applicant for more information the applicant said that five or six police officers entered her neighbour's house and people tried to get out but she did not go fast enough so the police took her back to the local police station with one other person where she was warned not to participate in the gatherings again. She said, after some hesitation, that she was detained for three days and during this time she was questioned: CB 107 at [46]; and
vii)she had heard the Chinese Government is not persecuting Christians anymore so she would return to her home and continue to attend church, though she did not yet know the name of the church she would attend if she returned and she did not know if she was still fearful of returning but she was “not fearful here”: CB 107 at [49];
d)put to the applicant:
i)country information suggesting Christians can practise their religion without fear of harm; and
ii)concerns it had as to her credibility given the inconsistencies in her written statement of claims and what she had stated at the Tribunal Hearing, and her explanation for the delay in applying for a Protection Visa which was because she discovered the church and the country system are “better here”;
e)explained to the applicant the information put to her regarding the inconsistencies in her statements, subject to any further comments she may wish to make in explanation, would be the reason, or part of the reason, it would affirm the Delegate’s Decision and adjourned, and also allowed the applicant seven days after the Tribunal Hearing to make any written comments, and to allow the applicant time to consider her response though she responded she could not remember what she said in her statement: CB 107 at [50] and CB 108-109 at [55]-[60];
f)formed the view the applicant had exaggerated her claimed fear of harm at the hands of the Chinese authorities because of her religious activities, but accepted she was a Christian, albeit that it not satisfied she was introduced to the faith in China, and attended church in China and in Australia. It found aspects of her claims including that her parents were harassed by police and that she was arrested because of her religious activities to be vague and contrived and subsequently concluded that the applicant would not face a real risk of serious or significant harm in China: CB 110 at [68]-[69];
g)did not consider the applicant took a leadership role in the church, and noted it was not a requirement for her to introduce others to her church and rejected her claim she distributed religious brochures at night, therefore considering her ‘preaching’ activity to be of a limited nature and was satisfied the applicant will not engage in any other form of witnessing or preaching in China: CB 110-111 at [70]-[73];
h)noted the inconsistencies in the applicant’s claims, including:
i)that in her Protection Visa application she said that 15 people were arrested by a group of police, including herself, and that as it was her first offence she was released after signing a declaration letter and that she was required to report weekly to the police station. In her oral evidence to the Tribunal, however, she described being arrested by five to six police officers and being taken back to the local police station with one other person from her congregation, and that she was warned by police not to participate in any gatherings again, and was detained for three days during which time she was questioned about the gathering and again warned not to participate in future gatherings: CB 111 at [74]; and
ii)that having made no mention of her parents being harassed by the authorities in her Protection Visa application, she raised this claim during the Tribunal Hearing, initially telling the Tribunal that in 2013 the police had “frequently” visited her parents’ home and warned them not to allow their daughter to believe in any religion, and later in the Tribunal Hearing saying that while the police had visited her parents once in 2015 to ask about her whereabouts (notably after she had left the country) her religious beliefs had not had any impact on her family: CB 111 at [74];
i)stated it was not satisfied her explanations of her memory being “vague”, and that she just wants to forget the past were sufficient, noting that the Tribunal had to prompt her about the incidents and harm she claimed she was subjected to, and finally that the lack of specific details or context for any of the claims resulted in heightened concerns as to her credibility and the legitimacy of her claims: CB 111-112 at [74]-[75];
j)noted that during the Tribunal Hearing, the applicant had told the Tribunal that she had become aware that the Chinese Government is not persecuting Christians anymore and, although she wanted to stay in Australia, if she was to return to her home country she would go back to her home area and continue to go to church, she commented that she was “happy to hear” the independent country information put to her by the Tribunal, in relation to China generally as well as in her home area and she made it clear to the Tribunal that the religion in which she believes is not one of the evil religions in China: CB 112 at [79];
k)did not accept that the applicant faces a real chance of serious harm at the hands of the Chinese Government because of her religious practice, is not satisfied that there is a real chance that the applicant will be subjected to persecution in China in the reasonably foreseeable future for reasons of religion, or for any other Convention reason, and found that the applicant does not have a well-founded fear of persecution for a Convention reason: CB 113 at [80];
l)did not accept the applicant faces a real risk of “significant harm” as a necessary and foreseeable consequence of being removed to China, therefore finding that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, that there is a real risk she will suffer significant harm: CB 113 at [82]-[84]; and
m)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 114 at [88].
Judicial Review Application
On 16 October 2017 the applicant lodged her Judicial Review Application in this Court seeking that the Tribunal Decision be quashed on the following grounds (copied verbatim):
1. The Tribunal does not accept my claims because my claims at the Tribunal hearing were different to my written claims. This is because I was in bad condition in the Tribunal hearing day. I didn’t sleep well on the day before the interview and I was physically sick on that day. So. I hope I could have another opportunity to detailed explain my experience.
2. The Tribunal does not accept that I face a real chance of serious harm at the hands of the Chinese government because of my religious practice. However, it is unfair that the Tribunal refused me based on their understanding, regardless about my situation. They did not consider my real situation in China. Chines government persecuted the fellow of Christianity in my hometown.
3. If I return to China, I will continue be persecuted by the Chinese local government, and I am very scared. I hope Australia government could protect me and give me another chance to detailed describe my experience and provide more evidences.
Supporting the Judicial Review Application was an affidavit sworn 16 October 2017 by the applicant (“Applicant’s Affidavit”) where in two paragraphs she stated her Protection Visa application was refused by the Delegate and the Tribunal respectively, and annexed a copy of the Tribunal Decision. Pursuant to an order made by a Registrar of this Court on 6 December 2017 (“Registrar’s Orders”), the applicant was provided an opportunity prior to the hearing listed for 8 March 2018 to file and serve:
a)any amended application;
b)any further supporting affidavits and evidence; and
c)a written outline of submissions.
Prior to the hearing the applicant did not avail herself of the opportunity to file any further papers. Before the Court was the applicant’s Judicial Review Application and Applicant’s Affidavit, the Court Book (which also included the Tribunal Decision), and a written outline of submissions filed by the Minister. When the matter was called for hearing the applicant was not in attendance. The Court had the matter called outside of the courtroom three times and the applicant did not appear. No correspondence has been forwarded to the Court to explain the non-attendance, and upon the Court noting the applicant’s non-appearance, the Court noted that it had read the relevant materials provided to the Court in the matter, and that it was prepared to dismiss the Judicial Review Application. The Minister did not demur, and the orders set out at [2] above were made.
Consideration
Jurisdictional error required
The Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error will only constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”). In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for a Protection Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J (“Quin”); CLR at 35-36 per Brennan J.
The Court will individually address each ground of the applicant’s Judicial Review Application, but the Court generally notes that the Tribunal has:
a)set out, considered and made findings in relation to each of the applicant’s claims to fear harm as a result of her religious beliefs and her written and oral evidence in a very detailed manner: CB 102 at [21] and CB 102-106 at [26]-[54];
b)alerted the applicant to inconsistencies which might be a determinative issue, prompted the applicant on her claims, and invited the applicant to expand upon her responses in a manner that meets the procedural fairness obligations established in SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ: CB 108 at [55]-[60];
c)set out and referred to relevant country information throughout the Tribunal Decision, and put to the applicant the substance of the country information, and that it would be a reason for affirming the Delegate’s Decision, and invited the applicant to respond to the information orally at the Tribunal Hearing, and subsequently in writing in accordance with s.424AA of the Migration Act and SZBEL: CB 95, CB 107-108 at [50]-[52] and CB 108 at [55]-[60];
d)correctly identified the relevant law and explained the Tribunal’s understanding of the law such that the Court considers the law was not wrongly applied or the wrong question was asked: CB 101-102 at [3]-[15];
e)made some minor typographical errors whereby at CB106 at [43] it stated “The applicant asked about the applicant’s religious activity in Australia”, and at [47] “the applicant told the applicant that she cannot remember clearly”. Mere typographical errors do not constitute jurisdictional error: CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 at [29] per Marshall J; and see Bhangu v Minister for Immigration & Border Protection [2017] FCA 108 at [31] per Moshinksy J;
f)drawn conclusions that were reasonably open to it on the evidence and materials before it, for the reasons it gave such that no illogical or unreasonable findings are identified: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ; and
g)albeit no allegation was distinctly made and clearly proven, displayed no real or apprehended bias in the Tribunal Decision: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
In light of the above findings, the Court is satisfied that, in general terms, there is no issue in addition to the grounds relied upon by the applicant which needs to be dealt with by the Court having regard to the fact that the applicant (although she did not appear) is a litigant in person: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J, so that, the grounds aside, no jurisdictional error appears on the face of the Tribunal Decision. It remains to consider the applicant’s grounds of review.
Grounds 1 and 3
Grounds 1 and 3 of the applicants Judicial Review Application appear to seek relief this Court cannot grant, as both grounds would require the Court to exceed the jurisdiction conferred by s.476 of the Migration Act by engaging in merits review of the Tribunal Decision. This Court must review the legality of the Tribunal Decision, and assess if a jurisdictional error has been made: Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J, and not consider the merits of the application for review before the Tribunal: Wu Shan Liang; Quin.
In relation to ground 1 (and to the extent it arises in ground 3) the applicant, based on the evidence before the Court, at no time raised with the Tribunal that she felt “physically sick” or unwell, or sleep-deprived or tired. There was no reason therefore for the Tribunal to consider granting an adjournment, and nor would it appear that a request for an adjournment was agitated by the applicant.
The Court notes that when the applicant was placed on notice of the determinative issues the Tribunal adjourned to allow her time for consideration, and also allowed her an opportunity to provide information in writing in relation to the issues raised: CB 109 at [57] and [60]. Had the applicant been suffering from any sickness or disability at the time of the Tribunal Hearing, she had an additional seven days to explain this to the Tribunal in writing, and to address any inconsistencies in her evidence, and in relation to what had been revealed by the country information, albeit that there was no obligation for the Tribunal to do so in relation to the country information: SZTRU v Minister for Immigration & Border Protection [2015] FCA 170 at [51] per Katzmann J. The Tribunal, on the evidence before the Court, had no apparent reason to believe the applicant was sick or tired or otherwise disabled to the extent she did not understand what was being put to her or was otherwise unable to put her case. There was nothing to suggest the applicant was unable to meaningfully participate in the Tribunal Hearing: SZVCN v Minister for Immigration & Anor [2016] FCCA 431 (“SZVCN”) at [41] per Judge Manousaridis. Even if it be possible to raise that issue now before this Court, there is no medical evidence to support the specific assertions made by the applicant in relation to the day of the Tribunal Hearing, or indeed of any illness or injury which might more permanently affect the applicant’s capacity to have meaningfully participated in the Tribunal Hearing: see SZVCN at [42] per Judge Manousaridis, noting a similar absence of medical evidence. The Tribunal could fairly assume the applicant chose not to expand upon or explain her inconsistent claims at the Tribunal Hearing, and in writing after the Tribunal Hearing, because she simply had nothing more to say: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [111] per Tracey and Foster JJ.
In ground 3 the applicant specifically asked the Court to engage in impermissible merits review of the Tribunal’s finding that she will not suffer harm or be subject to persecution by the Chinese Government: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. That the applicant is dissatisfied with the outcome and wishes to have another opportunity to present her claims and evidence does not raise any issue as to jurisdictional error in the Tribunal Decision. Judicial review in this Court is not an opportunity to take a second bite of the merits review cherry: Wu Shan Liang; Quin.
Grounds 1 and 3 of the Judicial Review Application are not made out and do not establish any jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 again asks the Court, to some extent, to engage in impermissible merits review with regard to the Tribunal’s acceptance, or finding, that the applicant did not have a “real chance” of harm at the hands of the Chinese Government because of her Christian religious beliefs: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant further asserts it was unfair the Tribunal refused her a Protection Visa on the basis of the Tribunal’s understanding of the situation, that is “regardless … [of] my situation” because the Tribunal “did not consider my real situation” in relation to persecution of Christians in her home town.
In Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”); CLR at 429 per McHugh J it was stated:
The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance the applicant will be persecuted, his or her fear should be characterised as “well-founded” for the purposes of the Convention and Protocol.
The importance of Chan was recognised in Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where the High Court said that:
… A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. …
In SZGTS v Minister for Immigration & Citizenship [2009] FCA 1353; (2009) 112 ALD 443 (“SZGTS”) the Federal Court dealt with an appeal from a decision of then Federal Magistrates Court which alleged that the Federal Magistrates Court had misconstrued the criterion for the grant of a protection visa in s.36(2)(a) of the Migration Act and thereby constructively failed to exercise its discretion: SZGTS at [14] per Tracey J. The Federal Court noted in SZGTS at [18] per Tracey J that:
The Tribunal directed itself that:
… an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
At CB 102 at [11] the Tribunal repeated much of what was said in the above extract from SZGTS (and any number of other cases in the Federal Court and this Court) when it said:
…an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of being persecuted for a Convention stipulated reason. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
The Tribunal correctly identified the criterion the applicant must satisfy to enable the grant of a Protection Visa under s.36(2)(a) of the Migration Act. The Tribunal, notwithstanding the findings that the applicant was not a person who engaged in “preaching” activities, and that the applicant had “exaggerated” her claims for the purpose of obtaining a Protection Visa, went on to consider country information regarding the situation in China for those who believe and practise Christianity: CB 107-108 at [50] and [52]. Included in that consideration was specific information regarding her home area:
52. The Tribunal also referred to the country information set out in the delegate's decision record, which was provided by the applicant to the Tribunal, indicating that if the applicant was to return to her home area of Pingdu City, she would be able to live, work and worship in relative safety. In particular, the delegate referred to a 2015 Baptist News Global report about Christianity in Pingdu City, which indicates: “A vibrant congregation founded in 1893 by Protestant Missionaries, congregants of the Meng En Christian Church have moved out of the crumbling temple they used as a meeting place to a new building funded by the Mountain Brook Baptist Church of Birmingham Alabama. The original Pingdu building was made to hold 150 people, but services often included more than 500 people. The old building was assigned by the government after Christians resumed public worship there in 1987 and hundreds crowded into nearby alleys during services at the historic temple. Now, the new building for Meng En Christian Baptist Church officially seats 1,500 though nearly 2,500 people regularly attend services.”
Finally, it was noted at CB 112-113 at [78]-[79]:
78. In considering whether the applicant faces a real chance of serious harm, the Tribunal has considered the applicant's claim that she would be persecuted if she returns to China by being threatened by the authorities and not encouraged to hold her religious beliefs. In this assessment, the Tribunal has taken into account the oral evidence of the applicant, the finding above concerning the applicant's religious practice, the finding that the applicant has not been subjected to any harm in China for her religious beliefs, and independent country information put to the applicant at hearing.
79. During the hearing, the applicant told the Tribunal that she had become aware that the Chinese Government is not persecuting Christians anymore and, although she wanted to stay in Australia, if she was to return to her home country she would go back to her home area and continue to go to church. The applicant also conceded that she did not know if she was still fearful of returning to China. She commented that she was "happy to hear' the independent country information put to her by the Tribunal, in relation to China generally as well as in her home area. Further, she made it clear to the Tribunal that the religion in which she believes is not one of the evil religions in China. On this evidence, and in the light of the findings above regarding the applicant's religious practice, the Tribunal considers that the applicant will be able to continue her participation in a Sunday worship service, in a manner similar to her current practice, in Pingdu City without any adverse consequences. The Tribunal has also considered the nature of the applicant's 'preaching practice', which is limited to the applicant's social and church network. The Tribunal finds that the applicant will not change her practice on return and will not 'preach' beyond what she does now, a practice where there is not a real chance that she will attract any adverse attention of the Chinese authorities. The Tribunal does not accept that the applicant faces a real chance of serious harm at the hands of the Chinese government because of her religious practice.
In the Court’s view, the Tribunal has clearly taken into account the applicant’s situation when determining there was not a “real chance” of harm. The applicant herself provided some of the evidence which enabled the Tribunal to conclude there is not a real chance of harm to the applicant if she returns to China, particularly where the applicant:
a)admitted she was aware that the Chinese Government were no longer persecuting Christians, contrary to what she has stated in the Judicial Review Application; and
b)did not know if she was still fearful of returning to China,
and in that regard see [5(j)] above – citing CB 112 at [79] (which is set out at [27] above), and CB 108 at [52] set out at [26] above. It is difficult for the Court to see how the Tribunal could have made an error in deciding that the applicant did not have a real chance of harm giving rise to a well-founded fear of persecution, when the applicant herself does not appear to have a genuine fear that a real chance of harm awaits her if she returns to China, and where country information provided to the Delegate by the applicant, and specific to the applicant’s home community, suggests the existence of a thriving Christian community therein.
The Tribunal also did not accept the applicant’s claims to have suffered harm because of her Christian beliefs because those claims were not, in its view, credible: CB 111 at [73]. The Tribunal had regard to the fact that:
a)the applicant’s claims as presented at the Tribunal Hearing were “considerably different to her written claims”, and those “significant discrepancies” led the Tribunal to have “significant concerns” about the credibility of the applicant’s claims to have suffered harm from the Chinese authorities because of her religious beliefs: CB 111 at [74]; and
b)because:
i)the applicant’s evidence at the Tribunal Hearing was “lacking in detail and unpersuasive”;
ii)the applicant had to be prompted by the Tribunal to raise issues of harm;
iii)the applicant indicated that she did not wish to talk about matters or that she could not remember what had happened on certain occasions, and
iv)of the applicant’s “inability to provide detailed information about her arrest and detention”,
the Tribunal’s concerns as to whether or she had suffered harm in China because of her religious beliefs were heightened: CB 111-112 at [75].
It is well established findings of credibility are findings of fact “par excellence”: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J. It is also well settled that the Tribunal is entitled to accept, reject and give weight to the evidence as it thinks apt, and that that assessment is not generally for this Court to question: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J; Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is, on the face of the Tribunal Decision, no issue as to the Tribunal’s findings on the credibility of the applicant such that an error of the kind established in CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ might arise.
In the circumstances, there was no error by the Tribunal in its assessment of the applicant’s credibility as it related to the question of whether or not there was a real chance of harm to the applicant on the basis of her religious beliefs and practice if she returned to China.
In all of the above circumstances, the Tribunal’s finding that the applicant would not be exposed to a real chance of serious harm if she returned to China was open on the facts and unaffected by any form of legal error, let alone jurisdictional error.
Insofar as ground 2 asserts a degree of unfairness in relation to the Tribunal’s understanding of the applicant’s situation, the unfairness asserted is plainly not procedural fairness, but a disagreement by the applicant with the Tribunal’s assessment of her claims, and a claim that that assessment is unfair. Once again, that amounts to no more than an application to have this Court engage in impermissible merits review contrary to long-standing principles: see Wu Shan Liang and Quin.
The applicant has failed to point to, or provide, any evidence to establish the Tribunal did not consider the applicant’s situation, and the Court is satisfied the Tribunal has not fallen into error in failing to consider the applicant’s “real situation”, nor come to its findings erroneously or based on no evidence.
Ground 2 is not made out and establishes no jurisdictional error in the Tribunal Decision.
Conclusion and Orders
The Court finds that none of the three grounds in the Judicial Review Application have been made out, and that the there is no jurisdictional error established in the Tribunal Decision, and therefore the Judicial Review Application must be dismissed.
It was for the above reasons that on 8 March 2018 the Court made the orders set out at [2] above.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 14 March 2018