Fuh18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 217
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 217
File number(s): SYG 3097 of 2018 Judgment of: JUDGE LAING Date of judgment: 8 March 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal considered the claims and evidence before it in a manner that was open to it – whether the Tribunal afforded the applicant sufficient opportunity to present her case – allegation of bias – whether the Tribunal ignored or misunderstood the law – non-disclosure certificate – application dismissed Legislation: Migration Act 1958 (Cth) ss 428, 438 Cases cited: AAN17 v Minister for Immigration and Border Protection [2021] FCA 1541
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 1 March 2024 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms Q Ren of HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3097 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUH18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of the People’s Republic of China (China). On 12 October 2015, the applicant applied for a protection visa.
The Delegate refused the application on 23 March 2016.
The applicant sought review of the Delegate’s decision by the Tribunal on 20 April 2016. The applicant attended hearings before the Tribunal on 13 September 2018 and 15 October 2018.
On 16 October 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the criteria for the visa, the applicant’s claims and the evidence before it at [1]-[33] of its decision.
At [34]-[40], the Tribunal made the following findings:
34.The applicant has produced a People’s Republic of China passport which confirms her claimed identity and date of birth. She claims that she left China using a passport in the same name but entered Australia using a fake passport in another name. Based on the available evidence the Tribunal accepts that the applicant is [name redacted] as claimed for the purposes of this review. The Tribunal has therefore assessed her claims against China.
35.The Tribunal has concerns about the credibility of the applicant’s claims and does not accept she was or is a Catholic or that she suffered serious harm in China for reason of her religion. The reasons for this conclusion are outlined below:
36.The applicant’s written claims state that she is a Catholic and that she came to be a believer under the influence of her mother. She told the delegate that she was practicing her faith for about ten years prior to 2004. However, as noted above, she informed the Tribunal that she was introduced to Catholic Church gatherings just after she was married in about 2005. Further, she said her mother-in-law liked those gatherings but that she was introduced to them by “other” people. When the Tribunal noted these inconsistencies at hearing the applicant put it down to nervousness and memory loss. The Tribunal accepts that the applicant might have felt nervous appearing before the Tribunal and that stress and the passage of time can account for some error in respect of the timing of certain events. However, the Tribunal does not consider that her responses account for her differing account of who introduced her to the faith, particularly if it was her mother as originally claimed. The Tribunal does not accept that this simple fact is likely to be affected by nervousness or loss of memory.
37.Secondly, the applicant’s written claims state that she was subjected to weeks of torture in a detention facility after being caught attending an underground church gathering. This claim is significantly at odds with her oral evidence to the Tribunal that she was not hurt in China because of her religion. Again the applicant put this down to nervousness but the Tribunal is not persuaded that this sufficiently accounts for such a glaring and significant inconsistency.
38.Thirdly, despite claiming to have been a devout Catholic for many years, both in China and in Australia, she was unable to demonstrate any knowledge of even basic elements of her faith. The Tribunal notes that she claimed to have knowledge of some of the issues discussed at hearing but was unable to remember the specifics. Had she been able to provide some details about key aspects of the faith such as the Sacraments and the Ten Commandments for example, the Tribunal might have been able to accept that memory loss accounts for some of the gaps in her knowledge. However, the applicant was unable to provide any detail at all about these and other key aspects of her claimed religion. The Tribunal considers this reflects poorly on her credibility.
39.Fourthly, the applicant claims to be attending church in Sydney but she does not know the name of the church she attends and incorrectly said that the Chinese mass she attends takes place around 8am on a Sunday. The Tribunal notes that the Catholic Church which is nearest to [redacted]. As discussed with her at hearing, [the] website indicates that the Chinese (Mandarin) Mass is held at [redacted]. Other than her oral claims the applicant has produced no evidence of her attendance at [redacted] and given she claims to be attending a Chinese church service at a time when it does not take place the Tribunal is not persuaded she is in fact attending Catholic or any other church services in Australia.
40.In view of the above the Tribunal does not accept the applicant is a Catholic or that she was detained, tortured, forced to write guarantee letters, fined and monitored by the police in China for reason of her religion. The Tribunal does not accept she is attending Catholic or any other church services in Australia. The Tribunal finds the applicant departed China using a passport in her own name without encountering any difficulties at the time. The Tribunal finds the applicant was not a person of adverse interest to the Chinese authorities when she departed the country for reason of her religion or for any other reason. In light of the above findings, the Tribunal also finds she will not be of adverse interest to the authorities on her return to China for reason of her religion or for any other reason.
On the basis of the above, the Tribunal found that the applicant did not meet the criteria for the protection visa. Accordingly, the Tribunal affirmed the Delegate’s decision (at [41]-[44]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 6 November 2018. The applicant relied upon the following grounds contained in the application:
1. AAT did not find that I was a truthful or a genuine Catholic
AAT did not consider my practical situation. AAT did not accept that I am or ever a Catholic. I explained I went to church at [redacted] once or twice a week. Because of the language barrier, there is limit of church I can attend in Australia. In the refuse letter they said they did not believe. However, they could not provide any explanation.
2. I stated how harmful I suffered but being ignored.
AAT did not believe that if I return to China, the Chinese police will continue to monitor and arrest me. I claimed that I was tortured by the police very badly due to my religious activities in China, but I cannot remembered more details because it was long time ago, also because the incident I always feel nervous and scared now. The Tribunal not believe, thought I was not tell the truth. However, the Tribunal cannot give scientific evidence to prove this.
3. AAT staff's attitude is not kindly.
They did not give me enough time to explain the real situation, they said the laws I breached, and they made the final decision which means they made the decision before the hearing. If AAT are human-based management, they should understand my practical situation. They should not have such bad attitudes. I could not accept the decision they made to me.
4. AAT ignored the Law without further consideration.
They used the Law to refuse me, but the fact is they ignore the Law seriously. They thought I am not an Australian, so they trade me very unfriendly. Australia is a humane country, I am a refugee, and I should be protected.
Ground 1
Ground 1 contended that the Tribunal did not consider the applicant’s “practical situation”. This was by reference to the Tribunal’s disbelief that the applicant was attending Church in Australia, and that she was a genuine Catholic, in respect of which it was contended that the Tribunal “could not provide any explanation”.
I accept the Minister’s submissions regarding why this ground is unable to succeed. The Tribunal gave detailed reasons for not accepting that the applicant attended Church, or that she was a genuine Catholic, at [34]-[40] of its decision. Those reasons are set out above. I have not identified, on my own review of the materials, any claim or evidence that was not considered by the Tribunal in a manner capable of demonstrating jurisdictional error. No such claim or evidence has been identified by the applicant.
In relation to the applicant’s claimed attendance at Church in Australia, the Tribunal was concerned that the applicant had been unable to name the Church in question. The Church that matched the applicant’s description held mass at a different time than was claimed by the applicant and the applicant had provided no corroborative evidence that she was attending services. Having regard to these matters, the Tribunal was unwilling to accept the applicant’s claims regarding Church attendance. This reasoning was intelligible and logically capable of bearing upon the question that the Tribunal had to decide. It has not been demonstrated that it was relevantly closed to the Tribunal.
In relation to the applicant’s claims regarding Catholicism more broadly, the Tribunal was additionally concerned by inconsistencies in the applicant’s account and by her inability to provide “any detail at all” regarding “key aspects of her claimed religion”, such as regarding the Sacraments and the Ten Commandments.
It was open to the Tribunal to have considered that the applicant’s provision of inconsistent accounts of key aspects of her claims (such as how she came to the faith and whether she was harmed in China) bore adversely upon her credibility.
In relation to the applicant’s religious knowledge, I have considered whether the Tribunal may have erred by impermissibly assuming the role of arbiter of doctrine: see MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [46]-[57] and AAN17 v Minister for Immigration and Border Protection [2021] FCA 1541 at [37]-[38]. However, I am not satisfied that the Tribunal did so in the present case. The Tribunal does not appear to have expected a particularly high or arbitrary standard of knowledge in its assessment of the applicant. Instead, the Tribunal expressed at [38] a concern that the applicant had been unable to demonstrate any knowledge of basic elements of her claimed faith. This was despite the applicant “claim[ing] to have knowledge of some of the issues discussed”, in respect of which she had nonetheless been unable to provide details. It was in a context where the applicant had claimed to have been attending religious gatherings for decades and to have practised her faith through reading the Bible. It was also in circumstances where the applicant does not appear to have claimed that such concepts had not become known to her through her personal practice of religion, but instead appears to have blamed memory issues. I consider that it was open to the Tribunal not to have accepted this explanation. I am therefore not satisfied that it was closed to the Tribunal to have considered that the applicant’s evidence regarding her knowledge, together with the other matters it had identified, did not indicate that the applicant’s evidence was credible.
Having regard to the above, I am not persuaded that ground 1 is able to succeed.
Ground 2
Ground 2 suggested that the applicant’s claims to have suffered harm were “ignored”. It referred to the applicant’s claims that her evidence had been affected by memory issues and nervousness. The ground complained that the Tribunal disbelieved the applicant’s claims without “scientific evidence”.
As was submitted by the Minister, the Tribunal gave detailed reasons at [34]-[40] of its decision for not believing the applicant’s claims. These included inconsistencies in the applicant’s evidence, the applicant’s apparent lack of knowledge regarding her claimed religion, and evidence indicating that the time at which she claimed to have attended Church services did not appear to be consistent with the website of the Church that otherwise matched her description of where she had attended. I have found above that this reasoning was logically available to the Tribunal. The Tribunal did not need to have rebutting evidence before it (whether scientific or otherwise) in order not to have accepted the applicant’s claims: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at [7].
It was also open to the Tribunal not to have accepted that the difficulties it had identified with the applicant’s evidence were capable of being explained by memory issues and/or nervousness. The applicant placed no medical evidence before the Tribunal, or before the Court, in support of this contention. Whilst the Tribunal appears to have been prepared to accept that such matters may have accounted for some level of difficulty in the giving of evidence, it did not accept that they were capable of explaining the issues that it relied upon in declining to accept the applicant’s claims. It has not been demonstrated that this reasoning was relevantly closed to the Tribunal.
For these reasons, ground 2 is unable to succeed.
Ground 3
Ground 3 contended that the Tribunal did not give the applicant “enough time to explain the real situation”, had “bad attitudes” and “made the decision before the hearing”.
The applicant attended a hearing on 13 September 2018 before an authorised Tribunal officer where the hearing lasted over an hour: CB 121-122. This was permitted under s 428(1) of the Migration Act 1958 (Cth) (Act). The applicant attended a further hearing before the Tribunal Member on 15 October 2018, which was 47 minutes in duration: CB 139-141.
There is no suggestion that the applicant sought any additional opportunity or time within which to give further evidence. At the hearing before the Court, the applicant explained that she had not known that she could ask for additional time. Whilst this may be the case, I am not persuaded that this, in and of itself, is capable of demonstrating any relevant error on the part of the Tribunal.
To the extent that the ground alleged bias on the part of the Tribunal, as was discussed at the hearing before the Court, such grounds have high thresholds. Actual bias requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [72] per Gleeson CJ and Gummow J. Apprehended bias is similarly difficult to establish. It requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Serious allegations of this nature must be distinctly made and clearly proved: Jia Legeng at [69]. This has not occurred in the present case. There is nothing on the evidence before me that appears to support the applicant’s contention that the Tribunal made its decision prior to hearing from the applicant. The mere fact that the Tribunal made findings against the applicant does not, of itself, demonstrate bias or suggest the decision maker approached its task other than with a mind open to persuasion: SCAA v Minister for Immigrationand Multicultural and Indigenous Affairs [2002] FCA 668 at [37]-[38].
At the hearing before the Court, the applicant submitted that she felt that she was only there to answer questions before the Tribunal and that she had been very nervous and lacked knowledge. This submission is understandable. I accept that the applicant was nervous before the Tribunal, as I note was also accepted by the Tribunal (at [36]). I also accept that the applicant may have been conscious of the limitations in her knowledge, in circumstances where she was appearing before the Tribunal unrepresented. However, as was discussed during the hearing before the Court, there is no evidence before the Court capable of demonstrating that the applicant was incapable of participating in the hearing before the Tribunal. I did not understand the applicant’s contentions in this regard to go that far. Whilst I accept that the applicant may have been nervous before the Tribunal and possessed limited knowledge, this is unfortunately a situation that afflicts many who appear before the Tribunal unrepresented in migration matters. I am not persuaded that this, in and of itself, is capable of demonstrating relevant error on the part of the Tribunal.
Although there is no transcript of the Tribunal hearing that is in evidence, the Tribunal’s reasons do suggest that at least some open-ended questions may have been asked of the applicant. Paragraph 33 of the Tribunal’s decision indicates that the applicant confirmed at the hearing before the Tribunal that she had no other reason than those that she had previously stated for claiming to fear returning to China.
Whilst it can be difficult for an applicant to answer questions before the Tribunal, the asking of those questions often forms an important part of the Tribunal’s discharge of its procedural fairness obligations. This is usually indicative of a mind that is open, rather than closed, to persuasion.
For the above reasons, ground 3 is unable to succeed.
Ground 4
Ground 4 additionally contended that the Tribunal “ignored the Law”.
I am unable to accept this. The Tribunal correctly set out the legal criteria in issue at [3]-[7] of its decision. I have not found any legal error in the Tribunal’s application of those criteria at [34]-[44].
The applicant may well disagree with the Tribunal’s assessment. However, as I explained at the hearing before the Court, such disagreement does not provide a basis for setting aside the Tribunal’s decision. The role of this Court in proceedings such as the present is limited. This Court is unable to overturn the Tribunal’s decision based upon disagreement alone. This Court is only able to intervene when some material, legally relevant error has been identified in relation to the Tribunal’s decision. No such error has been demonstrated by the applicant. None is apparent on my own review of the materials.
In these circumstances, ground 4 is unable to succeed.
Further issue raised by the applicant – use of her own passport
At the hearing before the Court, the applicant took issue with what was said to be the Tribunal’s finding that she had come to Australia using her own passport. She informed the Court that she did not use her real passport to come into Australia.
In response, the Minister observed that the evidence before the Tribunal on this question had undertaken some evolution by the time of the Tribunal’s decision. The applicant did state on her visa application form that she had used a fake passport to depart her country (CB 19). However, she appears to have advised the Delegate that she left China using her own passport, before using a fraudulent passport (with a visa) to enter Australia (CB 81). Similar evidence appears to have been given to the Tribunal (CB 152 [28]). The Tribunal found that the applicant departed China using a passport in her own name and does not appear to have disputed her claim that she entered Australia on a fraudulent one (at [28], [34] and [40]). However, the applicant does not appear to have claimed to face harm on the basis of the manner of her entry to Australia, apart from her other claims which were not accepted by the Tribunal.
The applicant did not seek to be heard further after hearing the Minister’s submissions on this issue. I accept the Minister’s submission that the Tribunal’s reasoning at [40] was open to it on the evidence before it, as summarised above. I am not persuaded that it involved any impermissible misconstruction or failure to consider the evidence or claims that were before the Tribunal.
Further issue raised by the Minister – a non-disclosure certificate
The Minister observed that an invalid non-disclosure certificate, purportedly issued under s 438 of the Act, is located at CB 87 (Certificate).
I accept the Minister’s submission that the Tribunal in this case does not appear to have fallen afoul of the procedural fairness obligation considered in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [115] per Nettle and Gordon JJ. This was in circumstances where the Tribunal appears to have disclosed the existence of the Certificate to the applicant and discussed this with the applicant (at [9]). The Tribunal correctly considered that the Certificate was invalid (at [9]), as it provided no reason why disclosure was contrary to the public interest other than by reference to “an internal working document and business affairs”.
The underlying documents themselves are not before the Court. However, there does not appear to be any reason to doubt the Tribunal’s account of the documents as being irrelevant to its decision, in circumstances where they related “to the identification of the applicant which [was] not in dispute” for the purposes of the review. I therefore accept the Minister’s submission that even if the Tribunal fell into any error in dealing with the Certificate, it is not apparent that such error was material in a manner that might warrant the setting aside of the Tribunal’s decision: SZMTA at [38] per Bell J, Gageler J (as his Honour then was) and Keane J.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 8 March 2024
0
9
1