Eqj19 v Minister for Immigration
[2020] FCCA 1208
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EQJ19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1208 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5J, 36 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth) |
| Cases cited: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SCAA v Minister for Immigration [2002] FCA 668 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | EQJ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3044 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2020 |
REPRESENTATION
The Applicant appeared by telephone
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley by telephone |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is 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 2 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 3044 of 2019
| EQJ19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 25 October 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
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.
The applicant is a male citizen of China who arrived in Australia on 28 December 2013.[1] The applicant arrived on a temporary work (subclass 457) visa that was cancelled on 31 March 2015.[2]
[1] Court Book (CB) 18, Q47; 38
[2] CB 80; 135, [2]
On 23 December 2015, the applicant lodged an application for a protection (Subclass 866) visa,[3] with the assistance of someone who was not a migration agent. The applicant confirmed that he wanted all written communications sent to him.[4]
[3] CB 1-34
[4] CB 8; 14
The applicant set out his written claims for protection in his protection visa application[5] and an accompanying statement dated 21 July 2015.[6] In summary, the applicant claimed his family had been Christians for generations and that he participated in secret worship at home. The government accused this house church of being a criminal cult.[7] The applicant was detained by the police on 4 June 2006 and 24 November 2013 after they raided church gatherings. The applicant was beaten in police custody on both occasions.[8] The applicant claimed he would be “persecuted mentally and physically” if returned to China.[9]
[5] CB 29-31
[6] CB 40-45
[7] CB 40
[8] CB 41-43
[9] CB 29, Q91
In support of his visa application, the applicant provided copies of his passport,[10] and two translated statements by the applicant’s brother-in-law[11] and elder sister.[12]
[10] CB 35-39
[11] CB 46-48
[12] CB 49-51; See: CB 136, [10]
On 28 January 2016, the Minister’s Department invited the applicant to attend a biometrics interview to be held on 10 February 2016,[13] which he attended.[14]
[13] CB 54
[14] CB 83
On 29 August 2016, the Minister’s Department wrote to the applicant and invited him to attend an interview scheduled for 12 September 2016.[15] The applicant did not attend that interview.[16]
[15] CB 64-75
[16] CB 81.9
On 12 September 2016, the delegate refused to grant the applicant a protection visa.[17] Given the applicant’s failure to attend the interview, the delegate determined his application on the basis of the information provided with his protection visa application. The delegate relied on independent country information that indicated the Chinese government permitted relative freedom of religious belief with limitations in religious practice to find the applicant did not face a real chance of serious harm in China for any s.5J(1)(a) reason.[18] For similar reasons, the delegate was also not satisfied that the applicant faced a real risk of significant harm or met the requirements of s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[19]
[17] CB 80-91
[18] CB 88-90
[19] CB 91
The Tribunal’s proceedings
On 13 October 2016, the applicant lodged an application with the Tribunal to review the delegate’s decision.[20]
[20] CB 93-99
On 8 January 2019, the Tribunal wrote to the applicant informing him that his matter was ready for a hearing and inviting him to provide any additional evidence.[21]
[21] CB 106-107
On 13 May 2019, the Tribunal wrote to the applicant inviting him to a hearing scheduled for 31 May 2019.[22] The applicant accepted the invitation[23] and attended the scheduled hearing,[24] which was conducted before an officer authorised by s.428 of the Migration Act to take evidence under oath or affirmation.[25] The applicant gave the Tribunal copies of pages from his passport at the hearing.[26]
[22] CB 108-114
[23] CB 115-116
[24] CB 117-119
[25] see: CB 138, [14]
[26] CB 120-123
On 4 September 2019, the Tribunal wrote to the applicant inviting him to a further hearing scheduled for 20 September 2019,[27] which he also attended.[28]
[27] CB 124-126
[28] CB 129-131
The Tribunal’s decision
On 29 May 2017, the Tribunal made a decision affirming the delegate’s decision to refuse to grant the applicant a protection (Subclass 866) visa.[29]
[29] CB 134-148
The Tribunal found the applicant was “not a credible witness” and that his oral evidence at hearing was “generally vague, unforthcoming and inconsistent with his written statement”.[30] It identified some significant examples of these deficiencies, namely:
a)concerning his oral evidence at the hearing about his religious practice in China, the Tribunal found the applicant did not refer to his claimed religious activities in a clear and direct manner and that “it took a considerable number of further direct questions to gradually elicit from the applicant that he attended a house church in Jiangxi province and religious gatherings every Sunday”. The Tribunal expected that the applicant “would not have required so much prompting” to disclose his religious practice;[31]
b)whilst noting the applicant’s oral evidence to the authorised officer about his religious practice in Australia, the Tribunal noted the applicant’s evidence to the Tribunal member was “vague and reticent and indicated he had engaged in little religious activity here”. In response to questioning about the frequency of his church attendance in Australia, the applicant said he “moved a lot so there was no regular place for him to go”. The Tribunal found the applicant was imprecise about how often he had attended church in Australia and his claim to have moved around a lot was inconsistent with his protection visa application where he indicated he had lived at one address in Sydney and his earlier oral evidence that he had only lived in Sydney, except for the first six months when he lived in Perth and one or two months in Melbourne in 2014 or 2015;[32]
c)the applicant did not answer directly the Tribunal’s question about what else he did to practise his religion in Australia and instead spoke about Christians in general. He confirmed that he did not pray, attend Bible study, preach to others, do charitable work with Christian groups, join a choir and sing hymns or volunteer at Sunday school and suggested these were activities missionaries would do. When the Tribunal disputed this, the applicant then said he visited “the family of some sisters” and joined their Bible study but was vague about how many times he did this. The Tribunal expected that the applicant would have mentioned this when he was first asked about his activities and found he was being “vague”, “resisted being precise” and was “intentionally evasive” about how often he attended Bible study;[33]
d)when asked why he did not attend church or Bible study more regularly given the religious freedom in Australia, the applicant said he prayed sincerely at his own home. The Tribunal found the applicant “invented that evidence to overcome a potentially adverse inference being drawn about his limited religious activity in Australia”, since he had not indicated previously that he prayed at home. Given his claims to have been a sincere Christian since the age of 7 or 8, the Tribunal expected that the applicant would have engaged in more regular religious practice in Australia where he was free to do so;[34]
e)the Tribunal found the applicant’s evidence about his religious beliefs was “extremely brief and hesitant”. It found that the applicant could not tell many Bible stories and only mentioned the crucifixion of Jesus when asked what Bible stories inspired him but he required prompting to explain the crucifixion narrative. At first he said Easter was when Jesus suffered, but then claimed it was Good Friday. The Tribunal put to the applicant that he seemed “unable to convey very much about Christian beliefs” which raised doubts about his Christianity, to which the applicant replied he was a Christian but was unable to answer each question;[35]
f)the Tribunal expected the applicant would have been able to provide more detailed and forthcoming evidence if he were a Christian who had practised Christianity since childhood. It noted the applicant’s evidence “seemed like short rote-learned phrases” rather than “spontaneous answers”, and that he should have been able to identify more than one bible story;[36]
g)whilst confirming at the hearing that he was picked up by the police twice while attending house gatherings in his hometown in China, the Tribunal found the applicant’s evidence was “generally unforthcoming”, “very brief or required clarification”, and that he “seemed to intentionally resist providing details”. For example, when asked to clarify his claim that he experienced more serious problems in China because he approached the police, his answer was non-responsive and he “failed to answer a simple and direct question about what he did and said” to the police. The Tribunal found it took considerable questioning to obtain an account of what the police did to the applicant;[37]
h)regarding his claimed second arrest in November 2013, the Tribunal asked the applicant why he attended a church gathering when the evidence in his statement was that he had returned home for his brother-in-law’s wedding. The Tribunal found the applicant did not answer the question and that it took “considerable further questioning” to elicit an answer from him. The Tribunal also found the applicant’s evidence about the claimed payment of a bribe to secure his release from detention changed. First, he said that his uncle found a person to bribe, then it was his wife, then it was his brother-in-law.[38]
[30] CB 138, [15]-[16]
[31] CB 138, [17]
[32] CB 139, [18]
[33] CB 139, [19]
[34] CB 139-140, [20]
[35] CB 140, [21]-[22]
[36] CB 140, [23]
[37] CB 140-141, [24]-[25]
[38] CB 141, [26]
The Tribunal at [30][39] found the applicant’s account of the two occasions he claimed to have been detained by the police were difficult to elicit and also contradicted the evidence in his written statement in five respects, namely:
a)first, the applicant said at the hearing that he was of particular interest to the police on the first occasion he was detained since he had spoken out, but there was no indication of this in his written statement;[40]
b)secondly, the applicant claimed in his written statement that he was beaten during his first detention to the extent that he blacked out and had blood all over his face, but at the hearing he said his injuries were superficial;[41]
c)thirdly, the applicant claimed in his written statement that he was released from detention on the first occasion after making a statement of remorse and paying a fine, but at the hearing he said he was released merely because it was his first offence;[42]
d)fourthly, the applicant emphasised at the hearing that on the second occasion he was detained the police recognised him and were particularly interested in him, but his statement indicated none of this;[43] and
e)fifthly, the applicant stated at hearing that his brother-in-law arranged the bribe to be paid to release him from his second occasion of detention, but in his written statement there was no mention of his brother-in-law. Further, the applicant gave conflicting accounts of the amount of the bribe, saying it was over 30,000 yuan at the hearing, but that it was 50,000 yuan in his statement.[44]
[39] CB 141
[40] CB 142, [31]
[41] CB 142, [32]
[42] CB 142, [33]
[43] CB 142, [34]
[44] CB 142-143, [35]
Given its concerns, the Tribunal found the applicant was not a credible witness.[45] It also identified concerns with the supporting statements of his sister and brother-in-law and found they were not reliable and gave them no weight.[46]
[45] CB 143, [36]
[46] CB 143-144, [37]-[40]
The Tribunal accepted that the applicant was a national of China, but relied on its credibility concerns and did not accept that he was a Christian and rejected all of his claims about his claimed religious activities and the harm he allegedly suffered in China on that basis.[47] Accordingly, the Tribunal was not satisfied that the applicant met the criteria in s.36(2)(a) of the Migration Act,[48] or that he faced a real risk of significant harm or met s.36(2)(aa) of the Migration Act.[49] The Tribunal accordingly affirmed the decision under review.[50]
[47] CB 144, [41]-[42]
[48] CB 144, [43]
[49] CB 144, [44]
[50] CB 145, [46]
The present proceedings
These proceedings began with a show cause application filed on 21 November 2019. The applicant continues to rely upon that application. The grounds in it are expressed in narrative form:
On 4 June 2006, while we had gathered at the lounge of my cousin’s home (…) to learn the bible, four policepersons suddenly forced their way in. The seized our Bible and [pictures] of [Jesus] and took us to their police station for questioning. There I suffered blackout and fell on the ground. I was orders to write a sincere statement of remorse and pay a fine of 2,000 yuan. They accused our Christianity of being criminal evil cult I had to leave for Australia to seek protection.
I think the member of AAT, … failed to take my whole reasons into account which caused his decision to be believed unfair to me. He also failed to comply with S91R Migration Act 1958 because of his bias against me, Giving arise to jurisdictional error. I hope the Federal [Circuit Court] uphold justice for me, quash and remit the decision of AAT to reconsideration according to the law.
(errors in original)
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book, filed on 22 January 2020, and a supplementary court book filed on 30 April 2020.
Only he Minister provided written submissions in advance of today’s hearing. I invited oral submissions from the applicant this afternoon. He noted, correctly, that he failed before the Tribunal because he was not believed. He told me that he wants a fair decision and a reconsideration of his case.
In his submissions in reply, the applicant told me that he had been truthful before the Tribunal. He submits that he should not be expected to be 100 per cent precise or consistent. In my view, the wide-ranging adverse credibility conclusions reached by the Tribunal in this case were open to it on the material before it. I am satisfied that the process followed by the Tribunal was a procedurally fair one.
The Tribunal was entitled to test the applicant’s claims about his religious practice in China, his religious practice in Australia, his religious beliefs more generally, and his claims of harm in China. The Tribunal was dissatisfied with the applicant’s evidence on all those matters.
In my view, the applicant has not advanced a viable legal argument in relation to the Tribunal’s decision. I otherwise agree with the Minister’s submissions concerning the applicant’s grounds.
Ground 1
In the first seven lines, the applicant simply recounts details of his claim to have been detained, but this does not identify any jurisdictional error on the part of the Tribunal and essentially constitutes impermissible merits review.[51]
[51] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272
Ground 2
The applicant then alleges that the Tribunal member “failed to take my whole reasons into account which caused his decision to be believed unfair to me” (sic), but the “reasons” the Tribunal allegedly overlooked are not even identified and the ground is not supported by any particulars to make it meaningful. A failure to particularise grounds of review is a sufficient basis for it to be dismissed.[52] Without any particulars, the allegation in Ground 2 is meaningless and fails to identify an arguable case of jurisdictional error on the part of the Tribunal.
[52] WZAVW v Minister for Immigration [2016] FCA 760 at [35]
As outlined above, the Tribunal comprehensively considered the applicant’s evidence. The Tribunal’s findings flowed logically from, and were reasonably open on, the material before it, and the Court cannot review the merits of the Tribunal’s decision.[53]
[53] Wu Shan Liang at 272
Ground 3
Finally, the applicant contends that the Tribunal “failed to comply with S91R Migration Act 1958 because of his bias against me” (sic), which constituted jurisdictional error.
Again, this complaint is not supported by any particulars to make it meaningful and the reference to s.91R is misplaced given this section was repealed and replaced by s.5J(4) on 18 April 2015.[54] In any event, s.91R was concerned with specifying requisite components of the concept of persecution, and the applicant has made no attempt to identify how the present Tribunal erred in its understanding of the applicant’s claims and evidence or its understanding and application of the relevant law. An allegation of bias is a serious one that must be firmly and distinctly made and clearly proven.[55] It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons, and no inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[56] Accordingly, the allegation of bias cannot succeed.
[54] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth)
[55] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531
[56] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
I conclude that the applicant is unable to demonstrate an arguable legal case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant’s response indicated a claim of impecuniosity, but that is not a reason for the Court to refrain from making a costs order.
The applicant is 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 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 May 2020
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