Geq18 v Minister for Home Affairs & Anor (No.2)

[2019] FCCA 3662

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEQ18 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2019] FCCA 3662

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Home Affairs not to grant to the applicant a Protection (Class XA) (Subclass 866) visa – applicant asserted that the Administrative Appeals Tribunal erred in law and that the decision is vitiated by legal unreasonableness – Decision Record of Administrative Appeals Tribunal is lengthy, comprehensive and detailed and appears to evidence a careful and meaningful consideration and evaluation of the applicant’s claims – no jurisdictional error established by the applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 476

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
GEQ18 v Minister for Home Affairs [2019] FCCA 3338

Applicant: GEQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3306 of 2018

Judgment of: Judge Dowdy

Hearing date: 3 December 2019

Delivered at: Sydney

Delivered on: 3 December 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent: Mr S. Valliappan

Solicitors for the First Respondent: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 28 November 2018 is dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding in the sum of $6,000.

3. The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

4. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 31 January 2020 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3306 of 2018

GEQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a female citizen of China aged 25 years, having been born on 19 April 1994.

2. By Application filed in this Court on 28 November 2018 she seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 31 October 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 29 November 2016 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).

3. I note that at the hearing in this Court, when Mr Valliappan appeared for the Minister and the Applicant appeared in person, the Applicant again sought an adjournment of the hearing on the basis that she might get or had a better chance of getting a lawyer from Victoria Legal Aid than if the matter were to remain in Sydney. She had already sought both that the matter be transferred to Melbourne from Sydney and an adjournment, which applications are the subject of my earlier judgment dated 11 November 2019 bearing medium neutral citation [2019] FCCA 3338, which forms the background to and part of my present refusal to grant an adjournment of the hearing.

4. As I said in my earlier judgment, the Applicant has had ample time to obtain the services of a lawyer. She chose to move from Sydney to Melbourne and she asserts that she wants to get legal aid in Victoria, but there is no plausible or persuasive evidence, or in fact any evidence at all, to the effect that she would be able to get the services of a lawyer in Victoria. 

5. No correspondence from Victoria Legal Aid has been tendered and there is no evidence of any previous attempts by the Applicant to obtain the services of a lawyer. Other than her mere assertion from the Bar Table that she might get legal aid in Victoria, there is no evidence which would, in my view, make it in the interests of justice for, at this very late stage, the matter to be adjourned. I impliedly also take her as asking for the matter to be transferred to Melbourne, where from my knowledge of the Court lists in Melbourne, her Application would be unlikely to come on for hearing until some four years later.

6. In all the circumstances, I do not consider it in the interests of justice to either transfer the matter to Melbourne or to adjourn the hearing.

Background

1. The Applicant arrived in Australia on 10 June 2016 on a Tourist (Subclass 600) visa which was valid until 10 September 2016, and on 6 September 2016 she made her application for the Protection visa.

Relevant Law and Criteria Applicable to the Grant of a Protection visa

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Claims for Protection

1. In short, as made in her Protection visa application form, the Applicant’s claims were as follows:

   The applicant claims that her family began to believe in the Church of Almighty God in 2007 and that people in the community began to isolate her family after becoming aware of their religious beliefs. The applicant joined the church in 2013 and started college at this time. The applicant claims that she was monitored at college and that the teacher would frequently open her locker to search for evidence of her religion and that her cell phone was bugged. In January 2014 the applicant’s grandmother was arrested and the applicant’s family used all their money to ensure she was released from gaol. Since this time the applicant’s family were monitored closely by the police and the applicant’s grandmother’s pension was stopped.

   In February 2014 the applicant’s aunty was arrested and detained for 15 days and the applicant became so scared she quit college and moved to another city to continue her contribution to the church. The applicant claims that she moved from her village to Zhang Ye and then to Chong Qing. The applicant claims that she had no choice but to leave China and with the help of the church she reached Australia.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 19 November 2016.

2. In his Decision Record the Delegate recited the Applicant’s claims, but found:

   a)that there were several aspects of her claims that were not credible;

   b)that she was unable to substantiate the new claims she made at the interview with the Delegate;

   c)that she only demonstrated rudimentary knowledge of tenets of the Church of Almighty God religion (CAG); and

   d)that he was not satisfied that the Applicant was a genuine adherent to the CAG or that she had left China for the reasons that she had claimed. 

3. Accordingly, the Delegate found that the Applicant was not a refugee as defined by s.5H(1) of the Migration Act 1958 (Cth) (the Act) and that she did not satisfy the Refugees Convention criterion or the complementary protection criterion. Accordingly, he refused to grant the Protection visa to the Applicant.

Decision of Tribunal

1. On 9 December 2016 the Applicant lodged a merits review application of the Delegate’s decision with the Tribunal. On 12 February 2017 she sent a lengthy statement critiquing the Decision Record of the Delegate to the Tribunal. She then retained a solicitor and registered migration agent (solicitor), who on 28 February 2018 submitted a substantial body of information and material to the Tribunal in support of the review application, including:

   a)a lengthy submission dated 28 February 2018 which summarised the Applicant’s claims as being:

   The applicant states that she is a member of the Church of Almighty God, which is commonly known to those outside the church as “Eastern Lightning”, among other names. She claims that, because of her membership of the Church of Almighty God, and her participation in church activities such as meeting with other church members, and producing videos for the church, she is likely to detained and mistreated by the Chinese authorities. She was forced to conduct her activities for and with the church in secret because of the authority’s persecution of believers. She states that her family, who were also church members, were monitored by police and that her grandmother and aunt were arrested because of their membership with the Church.

   The applicant fears being detained and mistreated by the Chinese authorities, with the likelihood of facing severe punishment amounting to persecution if she were to return to China. In our submission the applicant will be persecuted because she is a member of the Church of Almighty God.

   b)a number of statutory declarations from the Applicant and others and letters from members of the CAG in Australia; and

   c)country information.

2. The Tribunal then held three hearings on 7 March 2018, 15 March 2018 and 1 August 2018 at which the Applicant appeared to give evidence and present arguments with her solicitor and at which witnesses also gave evidence. After the third hearing on 1 August 2018, the solicitor sent a further written submission dated 22 August 2018 to the Tribunal and forwarded a further statutory declaration of the Applicant dated 21 August 2018.

3. At [13] – [15] of its Decision Record the Tribunal first summarised the Applicant’s claims and then country information concerning the CAG in the following terms:

   [13] According to DFAT, the CAG, which is also known as Eastern Lightning and Real God Church, was founded in Hunan province in the early 1990s by a man called Zhao Weishan. Adherents believe Jesus returned to earth as a Chinese woman known as ‘lightning Deng’ (Yang Xiangbin, the wife of Zhao Weishan). Members believe they are in a constant mortal struggle against the ‘Great Red Dragon’ (a possible reference to the Chinese Communist Party), and that membership of the group will save them from impending apocalypse. The CAG was declared a cult and banned in 1995.

   [14] Precise details on the membership and activities of the CAG inside China are difficult to obtain. The group claims more than a million followers arranged in a seven-level membership hierarchy. Some reports suggest that most members inside China are middle aged rural women, often already practising Christians. Chinese media reports detail kidnapping, extortion, acts of violence and aggressive proselytising as part of the group's practice of recruiting new members and punishing non-believers. Some reports suggest that at least some of these accusations may be true, but others suggest that this is not the case. Whatever the truth about the group’s strength and activities inside China, it now has a significant online presence including discussion forums, professionally produced videos a sophisticated website with Chinese, English and Korean content and a presence on YouTube, and the CAG depicts itself as attracting upper-middle class, urban members.

   [15] Reports indicate that members of the CAG may be at risk of serious harm in China if their involvement becomes known. DFAT understands the government’s efforts to crackdown on Christian ‘cult’ organisations aim to identify and punish the leaders, with disciples viewed as victims. However, other reports, including those provided by the applicant, state that ordinary followers are also likely to face detention and other forms of serious harm.

4. At [19] of its Decision Record the Tribunal foreshadowed its conclusion that it did not find the Applicant to be a truthful or credible witness for the reasons that were to follow in its Decision Record. Then from [20] – [117] the Tribunal considered the Applicant’s claims of participation in the CAG in China under the headings of:

   a)Failure to provide claims in a timely fashion; 

   b)The applicant’s involvement in the CAG prior to her departure for Australia; 

   c)Involvement in the CAG prior to commencing college;

   d)Exposure of the applicant’s membership of the CAG while at college; 

   e)Threats from village leader in 2015; 

   f)The applicant’s residence in Zhangye from 2015 to 2016; 

   g)Departure from Zhangye and residence in Lanzhou; 

   h)The Applicant’s visitor visa application; and

   i)Failure to seek a visa to leave China in a timely fashion.

5. With respect to her claims as later made the Tribunal did not accept that a number of them were omitted from the Applicant’s initial statement and claims because her earlier migration agent had failed to include them: see [25] – [29] of its Decision Record. It further found that the Applicant’s evidence regarding her decision to join the CAG and her earlier involvement with the CAG was confused and unpersuasive: see [44] of its Decision Record.

6. The Tribunal did not accept that the Applicant’s membership of the CAG was exposed in mid-2014 after staff at her college found religious material on her MP5 player: see [55] – [58] of its Decision Record. It also did not accept that the Applicant’s claimed membership of the CAG became known to teachers and students at her college in June 2014, but rather that she had concocted this claim to support her Protection visa application: see [59] of its Decision Record.

7. The Tribunal did not accept that the Applicant sent a religious message to a friend over a chat site in June 2015: see [60] – [62] of the Decision Record. 

8. Finally, the Tribunal considered that the Applicant had failed to provide a credible reason for her failure to obtain a form of visa that would enable her to leave China until some eight months after she had obtained a passport and about seven months after she had claimed to flee her village and gone into hiding. The Tribunal found this delay in applying for a visa, after obtaining a passport, to be a strong indication that she was not fearful of serious or significant harm in China prior to her departure: see [117] of its Decision Record. 

9. Then from [118] – [125] of its Decision Record the Tribunal recorded its findings on the statutory declarations and oral evidence of witnesses.

10. At [126] – [127] of its Decision Record the Tribunal recorded its core findings in relation to her claim to be involved with the CAG, as follows:

    [126] After considering all of the relevant evidence, I find that the applicant is not a truthful or a credible witness. As discussed above, she failed to provide all of her claims in a timely fashion. More significantly, I found a number of her claims to be far-fetched and implausible, there are some discrepancies in her evidence and some of her evidence is odds with evidence provided by one of her witnesses. In addition, I found significant parts of her evidence, including her explanations for the problems noted above, confused and unconvincing. While some of these problems are relatively minor and, if considered in isolation, would not have caused me to reject her claims in their entirety, others are more serious and the overall pattern of her evidence caused me to conclude that she was not credible.

    [127] I do not accept that the applicant joined the CAG in 2013 or that she participated in CAG activities at any time in China or that she fled China in 2016 because she feared she would face serious harm because of her participation in the CAG. I find that these claims were concocted in order to support her application for protection.

11. The Tribunal then from [128] – [159] of its Decision Record turned to consider further matters impacting on the Applicant’s credibility under the headings of:

    a)The applicant’s travel to Australia;

    b)The applicant’s involvement with the CAG in Australia; and

    c)The applicant’s knowledge of the CAG.

12. The Tribunal concluded at [160] of its Decision Record, as follows:

    [160] After considering all of the relevant evidence, I find that the applicant is not a credible or a truthful witness. I do not accept that she is or has ever been a member of the CAG. I find that this claim was concocted for the purpose of obtaining protection in Australia.

13. I further note that at [152] – [154] of its Decision Record the Tribunal recorded its conclusion that the Applicant’s evidence regarding her participation in CAG activities in Australia was confused, vague and unconvincing and found at [155] that the Applicant had not been involved in CAG activities while living in Australia.

14. Accordingly, the Tribunal found that the Applicant was not a refugee and there was not a real chance that she would face serious harm if she returned to China within the reasonably foreseeable future for the purposes of the Refugees Convention criterion or a real risk that she would face significant harm on return to China for the purposes of the complementary protection criterion.

15. In the result the Tribunal affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. The Applicant relied on the following Grounds:

   1. The Second Respondent and the Delegate of the First Respondent erred in law in making their decision.

   2. The decision of the Second Respondent is vitiated by legal unreasonableness.

Consideration

Ground 1

1. First, I note that I am not empowered to review the decision of the Delegate, and insofar as this Ground appears to attack the decision of the Delegate, such decision is a primary decision which this Court has no jurisdiction to review by force of s.476(2)(a) of the Act. Otherwise, this Ground attacks the decision of the Tribunal as having made an error or errors in law in an entirely generalised and unparticularised way. The simple fact of the matter is that the Applicant had, at virtually all stages of her review application before the Tribunal, the services of the well-known immigration specialist law firm of Craddock Murray Neumann. A solicitor at that firm handled her review application and on the face of the Court Book, prepared it well, made a number of written submissions and attended the three hearings before the Tribunal with the Applicant, to assist her.

1. The Minister, as a model litigant, has submitted that no error of law is apparent on the part of the Tribunal, and I for myself have been unable to discern any error of law. The Decision Record of the Tribunal is lengthy, comprehensive and detailed and appears to evidence a careful and meaningful consideration and evaluation of the Applicant’s claims.  It does not bear any indicia of irrationality or of being arbitrary or capricious, and it does not seem to me to lack an intelligible justification in either its reasoning process or in its conclusions. 

2. In my view, the Applicant has failed to establish that the decision of the Tribunal is affected or vitiated by legal error and Ground 1 is not made out.

Ground 2

1. In my view, for the reasons already given with respect to Ground 1, I do not consider that the decision of the Tribunal is vitiated by legal unreasonableness. At the hearing, the only submissions made by the Applicant from the Bar Table went to a merits review of the decision of the Tribunal which is not available in this Court and to a simple reiteration of her claims as made to the Tribunal. She made no meaningful submissions in support of Ground 2 of legal unreasonableness, and Ground 2 comprises but a mere bare assertion of the same. 

2. Accordingly, Ground 2 is not made out.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date: 13 December 2019