SZTDM v Minister for Immigration & Anor (No.2)
[2013] FCCA 2060
•5 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTDM v MINISTER FOR IMMIGRATION & ANOR (NO.2) | [2013] FCCA 2060 |
| Catchwords: MIGRATION – Application for an extension of time and for review of a decision of the Refugee Review Tribunal – where the Tribunal disregarded conduct under s.91R(3) of the Migration Act 1958 for the purposes of assessing the applicant’s claims to protection under the Refugees Convention and failed to have regard to such conduct in considering the complementary protection criterion. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48B, 91R, 417, 477 Federal Circuit Court Rules, rr.1.06, 44.05 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 WZASC v Minister for Immigration & Anor [2013] FCCA 1452 |
| Applicant: | SZTDM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1777 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 24 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Clingan |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The time for seeking review of the decision of the Refugee Review Tribunal of 14 June 2012 be extended up to and including 31 July 2013.
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 14 June 2012 in Tribunal case number 1109529.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 16 August 2011.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1777 of 2013
| SZTDM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This Application
This is an application for review of a decision of the Refugee Review Tribunal dated 14 June 2012 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The application to this Court was filed on 31 July 2013, some 12 months outside the 35 day limit prescribed in s.477(1) of the Migration Act 1958 (Cth) (the Act). Accordingly the Applicant seeks an order extending the time for making the application in accordance with s.477(2) of the Act.
Under s.477(2) of the Act an extension of time in which to institute proceedings in this Court may only be granted if an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court considers that it is necessary in the interests of the administration of justice to make such an order. The First Respondent opposes any extension of time on the basis that it is not necessary in the interests of the administration of justice. The hearing proceeded on the basis that the grounds relied on by the Applicant were argued in full so that if an extension of time was granted, the question of final relief could be addressed.
In his initial application to this court filed on 31 July 2013 the Applicant marked the box marked “yes” in response to the question as to whether he sought an order that the time for making the application be extended. As discussed below, he provided three “grounds” for an extension of time. He did not file an affidavit explaining the reasons for the delay as required by r.44.05(2)(c) of the Federal Circuit Court Rules. In the amended application filed on 6 September 2013 and the further amended application filed on 25 October 2013 the Applicant relied only on an assertion that the further amended application had “merit” in support of the contention that it was necessary in the interests of the administration of justice to extend the time. Reference was made to the decision of Judge Cameron dated 7 August 2013 (see SZTDM v Minister for Immigration & Anor [2013] FCCA 1130 in which Judge Cameron granted an interlocutory injunction restraining the Applicant’s removal from Australia).
The Applicant’s written submissions, prepared by Mr Ower of counsel, addressed the merits of the grounds for review of the Tribunal decision but did not otherwise address factors relevant to the application for an extension of time. However in oral submissions Ms Clingan, who appeared for the Applicant at the hearing, indicated that although only one ground for an extension of time was relied upon in the further amended application, reliance was also placed on the matters referred to in the original application.
It is not in dispute that the Applicant has satisfied the first requirement for an extension of time under s.477(2) of the Act by making an application for an order in writing specifying why he considered it necessary in the interests of the administration of justice to make the order.
In considering whether it is necessary in the interests of the administration of justice to make an order extending time, regard should be had to all of the circumstances of the particular case. A number of factors are usually of relevance in this context, including the extent of the delay in commencing proceedings and whether there is a satisfactory explanation for the delay, whether there is merit in the substantive application, whether there is any prejudice to the respondent, the effect on the applicant if an extension is not granted and the interests of the public at large. This is not an exhaustive list (see for example Li v Minister for Immigration& Anor [2011] FMCA 12 at [35]; SZMFJ v Minister for Immigration& Anor [2009] FMCA 771 at [44]; SZNZU v Minister for Immigration& Anor [2010] FMCA 197 at [52] – [55]; and SZQUQ v Minister for Immigration& Anor [2012] FMCA 672 at [6]).
In the original application the Applicant’s grounds for an extension of time were as follows:
1. Firstly, my previous migration agent initially agreed to lodge the application for judicial review for me without charging additional fee, but she went back to her words and demanded me to make additional payment to her. However, at that time, my family members including my brother, my mother and myself were in extreme financial hardship. I had no choice to postpone the appeal.
2. On top of that, I was trying to approach the Legal Aid for free legal service but my application for the grant was not successful.
3. Lastly, when RRT actually made its decision in June, 2012, I was in a de facto relationship with an Australian citizen for a period of three months and planning to take out an application for a spouse visa once we had lived for 12 months. Unfortunately, our relationship did not work out due to her infidelity.
There is no sworn evidence from the Applicant in support of such claims. The substance of these grounds was not addressed in oral or written submissions for the Applicant. Contrary to the requirement of r.44.05 of the Rules, the application seeking an extension of time was not supported by an affidavit explaining the delay and showing why it was in the interests of the administration of justice for the Court to grant an extension of time. The affidavit material filed by the Applicant in support of his substantive application and in support of his application for an interlocutory injunction restraining his removal from Australia pending determination of the proceedings did not deal with this issue.
Counsel for the First Respondent pointed out that in WZASC v Minister for Immigration& Anor [2013] FCCA 1452 Judge Lucev had regard to the absence of any explanation for delay in considering an application for an extension of time under s.477(2) of the Act. In that context his Honour referred (at [9]) to the fact that there was no affidavit explaining the reasons for the delay and suggested that as r.44.05 stated that an application “must” be supported by an affidavit including an explanation for the delay and showing why it was necessary in the interests of the administration of justice for the court to grant an extension, such a requirement was mandatory. Judge Lucev expressed the view that in the absence of such an affidavit and explanation, the extension of time application must fail on that basis alone. However his Honour went on to have regard more generally to the ground for an extension of time in the application in concluding that there was no satisfactory explanation for the delay.
Under r.1.06(1) of the Federal Circuit Court Rules the Court may dispense with compliance with the requirements of the Rules. Insofar as it is necessary to do so, in the particular circumstances of this case where a jurisdictional error on the part of the Tribunal has been established, I would dispense with compliance with the requirements of r.44.05(2)(c) of the Rules. There is no requirement for an affidavit containing an explanation for delay in the Migration Act. I am of the view that it is open to the Court to grant an extension of time under s.477(2) of the Act notwithstanding non-compliance with r.44.05(2)(c) of the Federal Circuit Court Rules if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
Nonetheless, delay and whether there is a satisfactory explanation for the delay are matters that are relevant as part of all the circumstances in considering whether it is necessary in the interests of the administration of justice to grant an extension of time. In this case there is no evidence to substantiate the assertions about delay in the initial application notwithstanding that the Applicant is now legally represented. The delay in commencing these proceedings is significant, particularly when regard is had to the 35 day time limit. The assertions by the Applicant in explanation for the delay do not constitute an adequate explanation for the period of the delay in commencing these proceedings. There is no suggestion from the Applicant that he was not notified of the Tribunal decision or of his review rights in a timely manner. He had the assistance of a migration agent/lawyer throughout the course of the review by the Tribunal.
Insofar as the original application contains an implied assertion that the Applicant required legal representation or a significant amount of money to commence judicial review proceedings, his conduct in ultimately commencing the proceedings at a time he was self-represented (although he subsequently obtained legal representation) suggests the contrary. As the First Respondent submitted, the Applicant has not explained what steps, if any, he took to obtain funds to obtain legal advice or to commence proceedings after being informed of the Tribunal’s decision, or exactly how his claimed lack of funds and/or legal assistance prevented him from at least filing an application for judicial review within the prescribed time limit or shortly thereafter.
Further, the unsworn claim that the Applicant did not seek judicial review because he thought he would obtain a spouse visa but the relationship did not work out is not of itself a satisfactory explanation for the delay.
The First Respondent relied on an affidavit of Bernadette Marie Rayment sworn on 14 October 2013 to which was annexed a copy of a transcript of the evidence given by the Applicant at the hearing of his application for an interlocutory injunction on 7 August 2013 before Judge Cameron. Relevantly, when asked (transcript p.14) if it was true to say that if he had not been detained he would never have made the application to the Court, the Applicant agreed (transcript p.15). The Applicant’s oral evidence before Judge Cameron was to the effect that he was content to remain unlawfully in Australia in circumstances where his plan to obtain a spouse visa did not eventuate as he did not obtain Ministerial intervention.
Judge Cameron found in SZTDM at [11]:
A conscious decision to not pursue rights of judicial review must lead to a conclusion that there is no satisfactory explanation for the delay. This is particularly so when the applicant admitted in evidence that if it had not been for the fact that he was placed in detention that he would not have commenced these proceedings.
The Applicant does not rely on the s.48B or s.417 Ministerial requests made after the Tribunal decision in explanation for the delay, although I note that such requests were not finalised until 29 July 2013, two days before the present application was filed.
In all the circumstances I am not satisfied that the Applicant has provided a satisfactory explanation for the substantial delay in commencing these proceedings. I have borne in mind that it has been said that the longer the delay without reasonable explanation, the stronger the argument on the substantive merits would have to be (see Nguyen & Anor v Minister for Immigration& Anor [2013] FCCA 1441 at [20] referring to VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 at [23] albeit that case related to the exercise of the discretion to refuse relief). Nonetheless, there may be cases in which the merits of the grounds relied upon are such that the Court is satisfied in all the circumstances that it is necessary in the interests of the administration of justice to grant an extension of time notwithstanding the absence of a satisfactory explanation for the delay. For the reasons that follow, this is such a case.
Grounds of Review
There is one ground in the further amended application. It is as follows:
The Second Respondent made a jurisdictional error in failing to address the applicant’s claims for complementary protection under s36(2)(aa) of the Act.
Failing to apply the correct test by allowing its finding under s91R(3) to dictate that no consideration was given to the applicant’s Christian activities in Australia, contrary to the expressed submission of his representative.
Failing to consider the clearly articulated claim that, as a perceived Christian who has sought asylum in Australia, the Applicant faces a real risk of significant harm within the meaning of the section.
The Applicant contended that the Tribunal made a jurisdictional error on either or both bases set out in paragraphs (a) and (b). To consider these grounds it is necessary to have regard in some detail to the claims made by the Applicant and the Tribunal decision.
Background and claims
The Applicant, a citizen of the People’s Republic of China, arrived in Australia in 2006 as the holder of a student visa. He applied for a protection visa in July 2011. In his protection visa application he claimed that he would be imprisoned in China because his parents had been subject to persecution as his mother had been involved in underground Catholic Church activities in China. In a statement accompanying his protection visa application the Applicant also claimed that he was a member of the underground Roman Catholic Church in China and that he had suffered persecution by the Chinese government because he had taken part in underground church activities.
He claimed that his parents came from Catholic families, that the home of his maternal grandmother became a secret gathering place for the local church and that he became “one of them”. The Applicant also claimed that while at school he participated in secret church activities and regular gatherings organised by a teacher who was a member of the underground Roman Catholic Church and an activist in a youth group. He claimed he encouraged friends and other students to join the group and assisted the teacher. In particular, he claimed that after Pope John Paul II died in April 2005, he organised a candlelit vigil at the school and that the school political department became aware of this. He claimed the teacher was subsequently detained and dismissed from the school and that the students were given a written warning.
The Applicant claimed his parents prepared to send him overseas when they became aware of this incident, but that before that occurred he had assisted sisters to run a religious theory study group at his maternal grandmother’s home. He claimed that although he obtained an Australian visa by the end of January 2006, he decided he would like to complete the religious theory study sessions before leaving China. He claimed that on 26 February 2006 people from the Public Security Bureau (PSB) came to a gathering at his grandmother’s home and that he was taken to the PSB. He claimed he was released on bail. He arrived in Australia on 5 March 2006.
The Applicant also claimed that his mother was detained and arrested in China, but that in 2008 she and his younger brother had managed to leave China and come to Australia. He also claimed that in February 2011 his father had been detained and summoned by the Chinese police for his continuing participation in underground church activities and that he had subsequently gone into hiding.
The Applicant claimed that in March 2007 he had discovered the Western Sydney Chinese Catholic Church in Flemington. He told the Tribunal he first attended church in Australia in 2007 and that after his mother came to Australia he took her to that church.
The Applicant’s application was refused by a delegate of the first respondent. He sought review by the Tribunal. In a pre-hearing written submission of 14 October 2011 his representative claimed that the Applicant feared persecution on the basis of his religion as a Roman Catholic and his imputed political opinion of support for underground Roman Catholic churches, that is, his opposition to state-sponsored churches within China. It was claimed that he would be “perceived to oppose the Chinese authorities as a result of his Christian faith and his application for asylum in Australia”. The submission drew the Tribunal’s attention to the fact that the Applicant’s brother had been found by a (differently constituted) Tribunal to have a well-founded fear of persecution due to his religion. It was claimed that “following his arrival in Australia [the Applicant] continues to actively practise his Roman Catholic faith” and that his conduct to date suggested he would continue to practice his Christian faith in the event he was returned to China. In the context of addressing the reasonableness of relocation the advisor also submitted that the Applicant was a Christian who would practice his faith in China and that he “will be perceived as a Christian by virtue of his activities outside China”.
The Applicant appeared before the Tribunal on 15 November 2011, 31 January 2012 and 24 April 2012 to give evidence and present arguments. At the first hearing he gave evidence about matters such as events in China, the significance of baptism, his knowledge of the Bible and his attendance at church and bible study classes in Australia and why he had not yet been baptised. The Tribunal recorded that it raised s.91R(3) of the Act with the Applicant.
Between the first and second hearings the Applicant’s representative provided a further written submission on 24 November 2011 together with supporting letters about the Applicant’s religious activities in Australia from Fr Paul McGee and the President of the Western Sydney Catholic Chinese Community.
In addition, the advisor submitted:
It is our submission that the RRT member focused too heavily upon the depth of our client’s knowledge of Christianity, at the expense of considering our client’s risk profile as a person perceived to have converted to Christianity. We also submit that the strength or otherwise of our client’s faith is not relevant to whether or not it is likely that our client will be harmed because of his perceived belief. Notably, the independent information in our submission dated 14 October 2011 demonstrates that the Chinese government engages in the systemic abuse and suppression (including unauthorised detention, physical abuse etc) of religious minorities, including Christians. In light of the high risk profile associated with Christianity in China, the risk of persecution that our client faces if he is perceived to be a Christian upon his return to China must be given due weight.
At the hearing on 31 January 2012 the Applicant gave further evidence, including about his participation in church activities in Australia. The Tribunal raised issues of concern about matters such as his lack of knowledge of the Pope’s visit to Australia, Mary McKillop and the name of St Mary’s Cathedral as well as about his claims about events in China. It again raised s.91R(3) of the Act.
Following the second hearing, the Applicant’s advisor made a further written submission addressing the Applicant’s level of knowledge of Catholic icons and other matters. Included in that submission was a contention that:
…regardless of the extent of [the Applicant’s] religious knowledge, his self-professed identity as a Catholic will expose him to significant risks of persecution. Even if this is not accepted, we submit that our client will be imputed with support for the Catholic Church due to his activities in Australia as well as his familial connection to his maternal grandmother, father, mother and brother (all committed Catholics known to the Chinese authorities), suffering intense persecution as a result regardless of his knowledge of intricate details of Catholic doctrine.
On 24 March 2012 the complementary protection criterion was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth). The Tribunal invited the Applicant to a further hearing on 24 April 2013. The Tribunal recorded that at the hearing it told the Applicant it “well understood the claims he had made and that had been discussed at the two previous hearings”. It gave him the opportunity to provide additional information and to address the complementary protection criterion. The Applicant provided further evidence in relation to his attendance at church and participation in Church activities in Australia, why he was not yet baptised and his proposed attendance at Bible study classes at Ashfield and on other matters. Two supporting witnesses attended and gave evidence about the Applicant’s religious activities in Australia.
The Tribunal recorded that at this hearing it read out s.91R(3) “explained its consequences, and said that it considered it appropriate to consider [the Applicant’s] evidence in light of that provision”.
The Applicant’s advisor made a further submission on 14 May 2012 addressing various issues, including the complementary protection criterion. It was submitted that as “a Christian and a person who has sought asylum in Australia” the Applicant faced a significant risk of exposure to torture, cruel, inhuman and/or degrading treatment upon return to China. The advisor also sought to clarify the Applicant’s evidence about his involvement in church activities in Australia. The submission addressed s.91R(3) of the Act, noted that it was inapplicable to the complementary protection criterion and contended that the Applicant’s conduct in Australia could not be disregarded for the purposes of that criterion.
The Tribunal Decision
In its reasons for decision the Tribunal set out in detail the claims made by and for the Applicant at various times, including at the three Tribunal hearings. It summarised the Applicant’s claims about his involvement and that of his family in the activities of the underground Catholic Church in China. The Tribunal also summarised the Applicant’s claims about his attendance at a Chinese Catholic Church and participation in church activities in Sydney from March 2007.
In describing the Applicant’s claims the Tribunal acknowledged that the Applicant also made a claim of imputed political opinion as “a supporter of the underground Roman Catholic Church, that is, he opposed state-sponsored churches in China, and he was perceived to oppose the Chinese authorities as a result of his Christian faith and his application for asylum in Australia”.
However the Tribunal found that the Applicant was not a credible witness and on that basis that his claimed fear of persecution because he was a follower of the underground Roman Catholic Church was not genuine, well-founded or for the reason claimed.
The Tribunal’s credibility finding was based on the fact that it found several matters inconsistent with the extent of the Applicant’s claimed regular attendance at church in Australia since 2007, including attendance at Mass and Bible study classes. It referred to his lack of knowledge about World Youth Day celebrations involving the Pope in 2008 in Sydney and the fact that he did not know the name of St Mary’s Cathedral (which he claimed he had visited twice but only entered on one occasion) despite it being the principal Roman Catholic Church in New South Wales. The Tribunal was of the view that this lack of knowledge was not consistent with his claim to be a long-term follower of the Roman Catholic church. It found that photographs of the Applicant inside and outside St Mary’s Cathedral did not support his claims to be a follower of the Roman Catholic Church in circumstances where the Tribunal found that neither of his visits was for the purpose of attending to any religious practice.
The Tribunal was of the view that these findings were reinforced by the fact that the Applicant did not know who John the Baptist was, although he claimed to have been studying for baptism since before leaving China in 2006 and regularly while he was in Australia, and by the fact that the Applicant had not been baptised, despite claiming to have had that objective since at least early 2006.
The Tribunal found that the evidence from the two witnesses for the Applicant was generally consistent with and supported the Applicant’s evidence about his attendance at the Flemington church, albeit they could not identify precisely when he attended. It also found that the letter from Fr McGee was consistent with the Applicant attending Chinese Catholic Mass and a Rite of Christian Initiation class from the beginning of 2008. It observed that Fr McGee did not specify how often the Applicant attended.
The Tribunal took into account the evidence that the Applicant’s brother had been granted a protection visa on the basis of his Catholic faith, but observed that neither the Applicant’s brother or his mother had given evidence in the Applicant’s case and that no evidence had been provided in relation to the Applicant’s brother apart from a copy of his visa. The Tribunal pointed out that it was not bound by findings of fact made by another Tribunal member on the evidence presented in another case. While it accepted that the Applicant’s brother had been granted a protection visa, it gave little weight to the evidence that that visa was granted on the basis of the brother’s Catholic faith.
The Tribunal found further that its “concerns about the Applicant’s credibility are reinforced by information in some of the documents claimed to have originated in China”. It found that a letter dated 30 August 2011 said to be from a church pastor in China seemed to confuse the underground Roman Catholic Church and the Local Church in China. This confusion caused it to doubt the authenticity of that letter. The Tribunal gave February 2011 summonses said to relate to the Applicant’s parents little weight having regard to the fact that they contained no address for the PSB and specified no location or date of the alleged offences and the Applicant’s acknowledgment that he could not be sure that such summonses (sent to him by relatives) were genuine. The Tribunal also expressed concern about the fact that the summons issued to the Applicant’s mother was issued around the same time as the summons issued in respect of his father at a time when she had been in Australia since 2008. This concern was not allayed by the Applicant’s claim that his mother had been arrested by the PSB in 2007 and his lack of knowledge about the circumstances. In addition, the Tribunal had regard to country information as to the ease of obtaining fraudulent documents in China and the Applicant’s agreement that this was his experience “at that time anyway”.
The Tribunal was not satisfied the supporting documentation was genuine. It found that the fact “the applicant would provide documents to the Tribunal that he said he [could] not be sure [were] genuine, reinforced its concern that he [was] not a credible witness”.
Based on such adverse credibility findings the Tribunal did not accept that the Applicant, his mother or his father were persecuted in China as followers of the underground Roman Catholic church; that he organised a candlelit vigil on the night Pope John Paul II died and was discovered and warned; or that he was present at a religious theory study session on 26 February 2006, detained and questioned by the PSB and released on bail on payment of money. Nor did the Tribunal accept that the Applicant’s mother was detained and arrested in 2007 or that his father was detained in February 2011 and had gone into hiding in China. The Tribunal did not accept that the Applicant was subject to questioning at the airport before leaving China. It did not accept he left China to avoid the risk of being detained, arrested, killed or seriously harmed or that he feared he would be at risk of any of those things happening to him if he returned to China.
Interestingly, despite its earlier reference to a claim based on imputed political opinion, the Tribunal found that the Applicant “does not claim harm for any reason other than his religion”.
The Tribunal reiterated that it was not satisfied that the Applicant, his mother or father were followers of the underground Roman Catholic church. It was not satisfied that he was a follower of the Roman Catholic Church.
The Tribunal accepted that the Applicant had demonstrated knowledge about the Christian religion and the Roman Catholic church. It also accepted that he had attended the Flemington church and participated in some activities there, but was not satisfied he did so otherwise than for the purpose of strengthening his claim to be a refugee. It therefore disregarded such conduct pursuant to s.91R(3) of the Act.
The Tribunal concluded that “[f]or those reasons [it was] not satisfied that the applicant ha[d] a well-founded fear of being persecuted because of being a follower of the underground Roman Catholic church or for any other Convention related reason now or in the foreseeable future if he return[ed] to China”.
The Tribunal then addressed the issue of complementary protection. In light of the grounds relied on in these proceedings it is appropriate to set out its findings in that respect in full. The Tribunal found (at paragraphs 206 to 208):
Having found that the applicant does not meet the refugee criterion, it is necessary to consider whether he meets the complementary protection criterion which came into effect on 24 March 2012.
For the reasons set out above, the Tribunal does accept that the applicant is a citizen of China and that he is in Australia. The Tribunal is also satisfied that China is the receiving country as defined in s5(1) of the Act. However, the Tribunal does not accept the applicant’s claims for the reasons already given.
The Tribunal finds that the applicant will not suffer any harm if he is returned to China. It is not satisfied that he would practise as an underground Roman Catholic if he returned to China. The Tribunal is therefore not satisfied that it has substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer any harm, and therefore will not suffer significant harm as defined in s36(2A).
The Tribunal concluded that it was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention or under the complementary protection criterion in s.36(2)(aa) of the Act. It affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed on 31 July 2013. He now relies on a further amended application filed on 25 October 2013. As indicated, there is one ground in the further amended application. It is that the Tribunal made a jurisdictional error in failing to address the Applicant’s claims for complementary protection under s.36(2)(aa) of the Act. There are two bases for this assertion.
The Applicant’s Christian activities in Australia
The first ground (ground 1(a)) is that the Tribunal failed to apply the correct test “by allowing its finding under s.91R(3) to dictate that no consideration was given to the applicant’s Christian activities in Australia, contrary to the express submission of his representative”.
Counsel for the Applicant pointed out that the third hearing on 24 April 2012 was convened for the specific purpose of affording the Applicant an opportunity to address the complementary protection criterion. According to the Tribunal, the evidence was largely concerned with Applicant’s religious activities in Australia and included oral testimony from two witnesses.
It is not in dispute that s.91R(3) of the Act does not apply to the complementary protection criterion. However the Tribunal recorded that at the third hearing held to address the complementary protection criterion, it read out s.91R(3) and told the Applicant that it considered it appropriate to consider his evidence in light of that provision.
In its reasons for decision the Tribunal accepted that the Applicant attended the Flemington Catholic Church and participated in some activities there. However the Tribunal disregarded the Applicant’s religious activities in Australia pursuant to s.91R(3) of the Act in addressing the Applicant’s Refugee Convention claims. The Applicant submitted that in its findings in relation to complementary protection there was no indication that the Tribunal had considered the evidence of his religious activities in Australia when determining whether he was entitled to complementary protection. Rather, the Tribunal stated that it did not accept the Applicant’s claims “[f]or the reasons set out above” and found (without further explanation) that he would not suffer any harm if returned to China and that it was not satisfied he would practise as an underground Roman Catholic if he returned to China.
It was acknowledged that it was open to the Tribunal to disregard the evidence of the Applicant’s religious activities in Australia under s.91R(3) for the purpose of determining whether he had a well-founded fear of being persecuted for a Convention reason, but submitted that such conduct could not be disregarded for the purposes of the assessment of the complementary protection criterion. It was pointed out that while in its description of the evidence the Tribunal referred to the advisor’s submission of 14 May 2012 which made this point, it did not address the content of such submission in its findings and reasons.
The Applicant placed reliance on the remarks of Judge Driver in SZSFK v Minister for Immigration [2013] FCCA 7 at [92]. In that case a reviewer made findings in relation to the complementary protection criterion based on evidence and findings considered in the context of the Refugees Convention claim, but made no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa) of the Act. Judge Driver stated (at [92]):
Given the manner in which the Reviewer approached his task (ie to accept the claimed apprehensions and beatings, but to reject the claim under s36(2)(a) for reasons specific to Convention claims), it was not open for the Reviewer to simply say, as he did, that the complementary protection claim was rejected for the same reasons. It was incumbent on him to engage with the language of s36(2)(aa) to consider the evidence relevant to that provision.
Similarly in this case it was contended that given that the Tribunal accepted that the Applicant attended a Catholic church and engaged in religious activities in Australia, it was not open to it to simply say that it did not accept the Applicant’s claims “for the reasons set out above” and that it was incumbent on it to consider such activities in the context of s.36(2)(aa).
The First Respondent submitted that there could be no doubt that the Tribunal was aware of the advisor’s post-hearing submission and of how s.91R(3) of the Act applied, having regard to the fact that it referred to the advisor’s submission in its decision and to its reasons in relation to complementary protection. In particular it was contended that the Court could be satisfied that the Tribunal was aware that the Applicant’s conduct in Australia could only be disregarded for the purposes of the Applicant’s Refugee Convention claims and that the Tribunal did not disregard the Applicant’s conduct in Australia when considering his complementary protection claims. This was said to be apparent from the Tribunal’s finding that “the applicant will not suffer any harm if he is returned to China”. It was submitted that this finding must be taken to be a response to each factual matter that formed the basis of the Applicant’s claim that he was at risk of suffering “significant harm” upon return to China.
Reliance was also placed on the principle that the Tribunal is not obliged to refer in its reasons to every item of evidence before it and that an omission to refer to a piece of evidence does not necessarily lead to a conclusion that it has been overlooked (see SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [58]). This principle was said to have “particular resonance” in this case as the Applicant was said to have provided no evidence as to how the authorities in China would come to be aware of his conduct in Australia. It was contended that it followed from the fact the Applicant gave no evidence in relation to this issue, that this aspect of his claims was “subsidiary at best”. The First Respondent submitted that it was plain from the manner in which he presented his claims that the thrust of the Applicant’s claim was that he was at risk of significant harm owing to his past Christian activities in China, coupled with the fact that he and his family had previously come to the adverse attention of the Chinese authorities. It was contended that it was apparent that the Applicant was only relying upon his conduct in Australia to corroborate his claim that he was a practising Christian and that he did not contend that his conduct in Australia created or magnified a risk of being subject to significant harm.
Counsel for the First Respondent pointed out that in considering the Applicant’s claims the Tribunal found that he was not a credible witness, that certain documents he provided to support his claim to have practised Catholicism in China were not genuine and concluded that neither he, nor his parents, were followers of the underground Roman Catholic church and that his parents had not at any stage been detained by the Chinese authorities.
It was submitted that given the way the Applicant framed his complementary protection claims (which were said not to focus upon his conduct in Australia) and given the Tribunal’s broad finding that the Applicant would not suffer any harm if he returned to China, the Tribunal did not err in failing to refer expressly to the Applicant’s conduct in Australia when considering his complementary protection claims.
In my view this ground not only has reasonable prospects of success, it is also made out. First, insofar as the First Respondent referred to the manner in which the Applicant presented his claims in relation to complementary protection, this has to be seen in light of the fact that the complementary protection provision came into effect during the processing of his application before the Tribunal. In any event, while there was undoubtedly an initial focus by the Applicant on the consequences of his claimed activities in China and those of his family in relation to his Refugees Convention claims, he also referred in his initial statement in support of his protection visa application to his attendance at the Western Sydney Chinese Catholic Church.
It is the case that in his statutory declaration of 11 October 2011 the Applicant did not refer to his Christian activities in Australia in support of his claim. However he also stated that that statutory declaration was not an exhaustive statement of the reason or reasons he could not return to China and that he would provide further information in relation to his claims during the Tribunal hearing.
Moreover, in his advisor’s pre-hearing submission to the Tribunal of 14 October 2011, the Applicant made claims on the basis of his religion as a Roman Catholic and his imputed political opinion of support for the underground Roman Catholic church. It was claimed that he would be perceived to oppose the Chinese authorities as a result of his Christian faith and his application for asylum in Australia. The advisor also claimed that, apart from his activities in China, following his arrival in Australia the Applicant had continued to actively practice his Roman Catholic faith and that his conduct to date suggested he would continue to practice his Christian faith in the event that he was returned to China. It is clear that these claims were not based only on his claimed activities in China. Moreover in discussing the reasonableness of relocation and the essentially political nature of dissent in China, the advisor claimed that the Applicant would be “perceived” as a Christian “by virtue of his activities outside China”. This was clearly a reference to the Applicant’s claimed activities in Australia.
No issue is taken with the Tribunal’s account of the Applicant’s evidence at the first hearing on 15 November 2011. According to the Tribunal, the Applicant (who arrived in Australia in March 2006), said that he first attended a Catholic Church in Flemington in early 2007. He explained why he had not attended before that time. When asked about the practice of his faith since he found the church in Flemington, the Applicant told the Tribunal that as he had not been baptised he had to attend some Bible study classes, but because he was doing casual work he could not attend those classes on a regular basis. He also explained that he now understood something that he had not understood in China, which was that he could not be involved in the Mass (in the sense of taking communion) until he was baptised. He claimed he had started to attend classes in Australia. The Applicant gave evidence to the Tribunal about the extent to which he had been attending such classes and the fact that he had not finished his study because of the need to work. He claimed that this was why he was not yet eligible to be baptised.
After that hearing the Applicant’s representative submitted that the Tribunal had focused too heavily upon the depth of the Applicant’s knowledge of Christianity at the expense of considering his risk profile as a person “perceived” to have converted to Christianity. Independent information was referred to in support of this contention. In addition, the advisor provided the Tribunal with a supporting letter from Fr Paul McGee dated 17 November 2011, attesting to the Applicant’s attendance at Chinese Catholic Mass at Flemington since 2008 and his 2008 and 2011 participation in Chinese language Rite of Christian Initiation Courses and also a letter from the President of the Western Sydney Catholic Chinese Community attesting that the Applicant was an active member within the church community who had been attending youth Bible study group and Mass in Mandarin every Sunday at Flemington since March 2007.
Such documents were said to provide further evidence of the applicant’s adherence to Christianity. They clearly related to his claimed activities in Australia. The Tribunal did not find that these letters (or the later oral evidence from two witnesses about the Applicant’s religious activities in Australia) were not genuine. Indeed it accepted that this evidence was consistent with or supported aspects of the Applicant’s claims about his conduct in Australia.
At the second hearing the Applicant elaborated on his claims to attend Church and Bible study classes in Australia. After the hearing his advisor claimed that the Applicant would be imputed with support for the Catholic church due to his activities in Australia as well as his familial connections. Contrary to the First Respondent’s submission, the Applicant did not simply rely on his conduct in Australia to corroborate his claim that he was a practising Christian.
As the Tribunal indicated, the third hearing was an opportunity for the Applicant to provide “additional” information in light of the introduction of the complementary protection criterion. The Tribunal advised him that it understood the claims already discussed. Moreover the Tribunal recorded that at the hearing on 24 April 2012 it told the Applicant that if it was not satisfied he was a refugee, it would consider all the evidence in relation to the complementary protection criterion. This clearly encompassed the evidence already given by the Applicant. The Applicant elaborated further on his attendance at church and involvement in church activities in Australia at the third hearing, including providing evidence from two witnesses, one of whom was the former President of the Western Sydney Chinese Catholic Community. The other witness was the godmother of the Applicants’ mother. The post-hearing submission addressed issues and possible inconsistencies in the Applicant’s claims about his activities in Australia.
Having regard to all the claims made by the Applicant, bearing in mind that the third Tribunal hearing was specifically convened for the purposes of addressing the complementary protection claims and the fact that the Applicant’s evidence and that of his supporting witnesses at that hearing, focused on his conduct in Australia, I am satisfied that he did not simply rely on his conduct in Australia to corroborate his claim that he was a practising Christian in China. A claim clearly arose on the material before the Tribunal that the Applicant’s conduct in Australia created or magnified a risk of being subject to significant harm (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263). The fact that this was only one aspect of his claim and may not be seen, in the words of Counsel for the First Respondent as “front and centre of his claims” because the initial and primary basis for the Applicant’s claims related to his and his family’s claimed activities in China, is not such as to establish that the Tribunal did not have to give express consideration to the Applicant’s conduct in Australia in the context of the complementary protection criterion.
On the material before the Court it cannot be inferred that in its decision the Tribunal had regard to the Applicant’s conduct in Australia when considering his complementary protection claims. First, as set out above, the Applicant made specific claims about his activities in Australia, including at the third hearing. His advisor made it abundantly clear that he sought to rely on such activities in connection with his complementary protection claim. This occurred in circumstances where at the hearing convened to address the complementary protection criterion, the Tribunal had read out the provisions of s.91R(3) and said it considered it appropriate to consider his evidence in light of that provision.
This was clearly a mistake on the part of the Tribunal. It could have corrected this mistake in its reasons for decision. However it did not do so, notwithstanding that the Applicant’s advisor submitted not only that the Applicant’s engagement with the Christian community in Australia was a natural continuation of his prior religious activities, that it would be inappropriate to disregard such conduct under s.91R(3) but also that even if it was disregarded in the context of the Refugees Contention criterion, it was still relevant for the purpose of assessing Australia’s complementary protection obligations in relation to the Applicant.
While (in describing the evidence) the Tribunal acknowledged the advisor’s submission of 14 May 2012 and stated that the submission addressed s.91R(3), it did not refer to the fact that s.91R(3) does not apply to the complementary protection criterion.
I am not satisfied that the Tribunal’s general finding that the Applicant would not suffer any harm if he was returned to China is such as to lead to an inference that the Tribunal did consider his conduct in Australia in the context of complementary protection, notwithstanding that it had already disregarded it under s.91R(3) of the Act in the context of considering the Refugees Convention claims. In addressing the Refugee Convention claims the Tribunal considered whether the Applicant was a follower of the Roman Catholic Church. The Tribunal had accepted that the Applicant had attended church and engaged in some related activities in Australia. However it disregarded his conduct in Australia under s.91R(3) of the Act. In the next paragraph it stated that “[f]or those reasons” it was not satisfied the Applicant had a well-founded fear of persecution as a follower of the underground Roman Catholic Church or for any other Convention reason. It then considered complementary protection and in paragraph 207 stated that it did not accept the Applicant’s claims “for the reasons already given”. The subsequent general finding that the Applicant will not suffer any harm in China was clearly based on the findings made by the Tribunal in considering the Applicant’s Refugee Convention claims, as was the finding that the Tribunal was not satisfied that the Applicant would practise as an underground Roman Catholic. There are no other reasons given for these findings.
The First Respondent contended that it was relevant that the Applicant had provided no evidence as to how the authorities in China would come to be aware of his conduct in Australia. This may be a matter that the Tribunal might have taken into account if it had considered the Applicant’s activities in Australia in the context of the complementary protection criterion. However it is not such as to establish that the Tribunal did not have to address such activities expressly in considering the complementary protection criterion.
In my view it can be inferred that the Tribunal disregarded the Applicant’s conduct in Australia pursuant to s.91R(3) of the Act for all purposes. However, given the Tribunal’s acceptance of some of the Applicant’s claims about his activities in Australia, it was incumbent on it to engage with the test for complementary protection and to consider the evidence about the Applicant’s activities in Australia in the context of that provision. It did not do so. It failed to apply the correct test and fell into error in the manner contended for in ground 1(a) in the further amended application.
The “perceived Christian who has sought asylum” issue
The second ground in the further amended application is that the Tribunal made a jurisdictional error in failing to address the Applicant’s claims for complementary protection under s.36(2)(aa) of the Act, in that it failed to consider the clearly articulated claim that as “a perceived Christian who has sought asylum in Australia, the Applicant fac[ed] a real risk of significant harm within the meaning of the section”.
In submissions Counsel for the Applicant referred to the fact that in the submission of 14 May 2012, the Applicant’s advisor had, as indicated, made a submission that:
In the event that you are not satisfied that [the Applicant] is a refugee, we continue to rely on the independent country information appended to our earlier submissions (dated 14 October 2012) as providing strong support for a finding that as a Christian and a person who has sought asylum in Australia, [the Applicant] faces significant risks of exposure to torture, cruel, inhuman and/or degrading treatment upon his return to China. It is therefore our alternate submission that [the Applicant’s] particular circumstances also engage Australia’s protection obligations under domestic complementary protection legislation.
It was submitted that the Applicant’s “particular circumstances” included the applicant’s religious activities in Australia, particularly bearing in mind that the earlier submission of 14 October 2011 specifically asserted that the Applicant would be “perceived as a Christian by virtue of his activities outside China”. Hence it was contended that for the purpose of assessing the Applicant’s right to complementary protection, the Tribunal was obliged to address a claim that arose on the material before it that the Applicant’s religious observances in Australia placed him at risk of significant harm as a perceived Christian who had sought asylum in Australia.
It was pointed out that the Tribunal was obliged to deal not only with the complementary protection claims expressly made by the Applicant, but also with those that “clearly” arose from the circumstances presented (see NABE, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184, Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802) and submitted that its failure to do so constituted jurisdictional error (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26, Goodwin v Commissioner of Police [2010] NSWCA 239).
The First Respondent submitted that the suggested claim was not made expressly and did not arise clearly on the material before the Tribunal. As counsel for the First Respondent submitted, the complementary protection claim expressly articulated in the submission of 14 May 2012 was that the Applicant was at risk of significant harm “as a Christian and a person who has sought asylum in Australia”. This claim was said to have been considered by the Tribunal. That is so insofar as it rejected the Applicant’s claim to be a follower of the Roman Catholic Church albeit the Tribunal erred in failing to have regard to the Applicant’s religious activities in Australia in the context of complementary protection. There was no express claim that the Applicant faced a real risk of significant harm within s.36(2A) of the Act as a “perceived” Christian who had sought asylum in Australia.
As the Full Court stated in NABE at [55] “[w]here the Tribunal fails to make a finding on ‘...a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction” in the sense considered in Dranichnikov at [24] per Gummow and Callinan JJ. Their Honours expressed the view that this may also be seen as “a failure to carry out the review required by the Act”.
However the Full Court went on to point out (NABE at [58]) that “[t]he Tribunal is required to deal with the case raised by the material or evidence before it”. Their Honours referred to authority to the effect that “the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated” where such unarticulated claim is raised “squarely” on the material available to the Tribunal (at [58]). While it was acknowledged that the adverb “squarely” indicated “that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal”, their Honours also stated at [58] that “[s]uch a claim will not depend for its exposure on constructive or creative activity by the Tribunal”. The Tribunal is “not required to consider a case that is not expressly made or does not arise clearly on the materials before it” (at [61]). Moreover, as their Honours pointed out at [68]:
A judgment that the Tribunal has failed to consider a claim not expressly advanced is...not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
I accept that if a claim to fear harm as a “perceived Christian who had sought asylum in Australia” arose clearly on the evidence and materials before the Tribunal (even if that evidence and material had been presented in support of the Applicant’s Refugee Convention claims) it would have been necessary for the Tribunal to consider such claim in the context of the complementary protection criterion (particularly given the Tribunal’s assurances to the Applicant at the third hearing that regard would be had to all the evidence).
However it has not been established on the basis contended for by the Applicant that the material and the evidence before the Tribunal “clearly” (NABE at [59] – [61]) and/or “sufficiently” (Dranichnikov at [49]) raised such a claim so that it had to be considered by the Tribunal in addressing the Applicant’s claims for complementary protection.
The express complementary protection claim was put on the basis of the Applicant’s actual Christianity. The suggestion that the Applicant would be “perceived as a Christian by virtue of his activities outside China” was not raised in the submission of 14 October 2011 as a discrete basis on which the Applicant claimed to fear harm in China. Nor was any reference made in that context to the fact that he had applied for asylum in Australia. Rather, this was one of the factors referred to in support of the proposition that relocation would be unreasonable in the sense that it was not practicable in the Applicant’s circumstances. The assertion that the Applicant would be perceived as a Christian was part of (not separate from) the claim that the Applicant was in fact a Christian who would practise Christianity in China.
Moreover the submission of 14 October 2011 commenced by summarising the Applicant’s claims as including a claim that he would be perceived to oppose the Chinese authorities (which is not the same as being a perceived Christian) “as a result of his Christian faith and his application for asylum in Australia.” In other words, even at that stage the Applicant’s claim to fear harm was put in terms of the Applicant’s actual Christian faith, not in terms of a fear on the basis that he would be a perceived to be a Christian. This material did not squarely or clearly raise a claim that the mere fact of being a perceived Christian who had sought asylum in Australia would of itself give rise to a fear (let alone a real risk) of harm.
I note that the Applicant did not rely on the advisor’s claim in the submission of 24 November 2011 set out at [28] above to the effect that the Applicant would be at risk as a person perceived to have converted to Christianity, but in any event such submission did not clearly raise a claim that the Applicant feared harm as a “perceived Christian who has sought asylum in Australia”. I have borne in the mind the threshold referred to in NABE at [68] for a judgment that the Tribunal failed to consider an unexpressed claim. The Applicant has not established that in circumstances where the basis for his complementary protection claim was expressly described as a claim that he faced significant harm “as a Christian and a person who has sought asylum in Australia”, an unexpressed claim to fear significant harm as a “perceived Christian who has sought asylum in Australia” emerged clearly or squarely from the material before the Tribunal such that the Tribunal erred in failing to consider such a claim in the context of the complementary protection criterion.
While such a ground was arguable, no jurisdictional error has been established on the basis contended for in ground 1(b) of the further amended application.
Conclusion
While a satisfactory explanation for the delay in commencing these proceedings has not been provided, there is strong merit in one of the grounds relied on such as to establish jurisdictional error. There is no suggestion of any prejudice to the First Respondent in granting an extension of time. There would clearly be a significant effect on the Applicant if the extension of time were not to be granted (and see s.476A(3)(a) of the Act). I have had regard to the interests of the public at large, not only in the proper resolution of these matters, but also in the Tribunal carrying out its function without falling into jurisdictional error. I am satisfied that in the particular and unusual circumstances of this case that an extension of time is necessary in the interests of the administration of justice, notwithstanding the absence of a satisfactory explanation for the delay in commencing these proceedings.
The grounds relied on in these proceedings were argued fully so that the Court was in a position to consider whether if the extension of time was granted and jurisdictional error was made out, the relief sought should be granted. Jurisdictional error has been established on one of the bases contended for by the Applicant. The First Respondent contended that if jurisdictional error were to be found, relief should be withheld because of the delay between the time of the Tribunal decision and the commencement of judicial review proceedings in this Court. I am satisfied that it is in the interests of the administration of justice to grant an extension of time primarily because of the strength of one of the Applicant’s grounds of review, notwithstanding the absence of a satisfactory explanation for the delay. I am not persuaded that in the particular circumstances of this case and bearing in mind the nature of the jurisdictional error in question, the delay in commencing these proceedings is a basis on which relief should be refused as a matter of discretion.
The time for commencing proceedings should be extended pursuant to s.477(2) of the Act. As jurisdictional error has been established the matter should be remitted to the Tribunal for reconsideration according to law.
The interlocutory injunction granted by Judge Cameron was extended until the date of judgment in these proceedings. I will give the parties the opportunity to make submissions in relation to any need for a further extension of the interlocutory injunction.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Associate:
Date: 5 December 2013
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