SZVVF v Minister for Immigration
[2016] FCCA 1465
•24 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVVF v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1465 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 424A, 425 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510; (1999) HCA 14 |
| Applicant: | SZVVF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3462 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 5 August 2015 |
| Date for Last Submission: | 2 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2016 |
REPRESENTATION
| The Applicant: | Appeared in person (via telephone) |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3462 of 2014
| SZVVF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 12 November 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of the People’s Republic of China, first applied for a protection visa on 14 January 2011. That application was refused by a delegate of the First Respondent. The Tribunal affirmed the delegate’s decision on 18 November 2011. The Applicant unsuccessfully sought Ministerial intervention.
On 4 March 2014 the Applicant lodged a second application for a protection visa. It was accepted by the delegate as valid on the basis of the reasoning in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 to the effect that s.48A of the Migration Act 1958 (Cth) (the Act) does not prevent a person from making a second protection visa application on complementary protection grounds where the first application was made and refused before the complementary protection provisions came into effect on 24 March 2012.
The second protection visa application was refused on 16 July 2014. The Applicant sought review by the Tribunal. He attended Tribunal hearings on 22 September 2014 and 8 October 2014. The Tribunal also took evidence from the Applicant’s daughter and, by telephone, from the Applicant’s wife who was in Azerbaijan. The only evidence of what occurred in the Tribunal hearings is the Tribunal’s account in its reasons for decision. On 12 November 2014 the Tribunal affirmed the delegate’s decision. It is that decision that is the subject of these proceedings.
The Applicant included his adult daughter in the application as a member of his family. She was included in the Tribunal review and was initially a party to the proceedings in this court. However she was removed as a party by orders made by consent on 22 April 2015.
In essence, the Applicant claimed to fear harm in China at the hands of the authorities because he was a member of the Shouters Church or Group. He also claimed that his personal details had been inadvertently divulged on the Department’s website thus revealing to the Chinese authorities the fact that he had applied for a protection visa.
The Tribunal Decision
In its reasons for the decision the Tribunal referred to SZGIZ in finding that s.48A of the Act did not prevent the second protection visa application, but also that as the Applicant had previously had his claim for protection assessed under s.36(2)(a) of the Act prior to the commencement of the provisions introducing the complementary protection criterion, the Tribunal must confine its consideration to the criteria upon which he had not previously made an application (the complementary protection criterion), notwithstanding that in the decision of 16 July 2014 the delegate had considered the claims under both the Refugees’ Convention criterion and the complementary protection criterion.
The Tribunal summarised the claims made by the Applicant, including in his initial protection visa application and supporting statutory declaration; in a submission from his adviser dated 16 February 2011; in an interview with the delegate of 17 February 2011; in further submissions from the adviser of 22 February 2011 to the first delegate; in submissions to the Tribunal conducting the first Tribunal review on 23 August 2011 and 27 October 2011; as well as in oral evidence to the first Tribunal on 29 August 2011 and 20 October 2011. The Tribunal also referred to the further details of the Applicant’s claims provided in his second protection visa application and his supporting personal statement as well as at his second protection visa interview of 20 June 2014 and in a submission to the second Tribunal of 18 September 2014. In addition the Tribunal set out in some detail the Applicant’s evidence (and that of his daughter and wife) at the Tribunal hearings of 22 September 2014 and 8 October 2014 and also outlined the subsequent written submission from the Applicant’s adviser of 23 October 2014. The Tribunal also identified various documents submitted in support of the Applicant’s claims.
In its findings and reasons the Tribunal recorded the Applicant’s claim to fear harm in China at the hands of the authorities because he was a member of the Shouters Church which was banned as an illegal cult and because he was regarded as being against the government as a member of an underground cult which refused to register with the authorities. It recorded that he also claimed to fear that he would be harmed by the Chinese authorities because his personal details had been inadvertently divulged on the Department’s website revealing that he had applied for a protection visa.
In relation to the Applicant’s claimed involvement with the Shouters Church in China, the Tribunal gave a number of reasons for its concerns about the credibility of this claim before concluding that, taking such considerations together, it did not accept that the Applicant was a member of or had any involvement with the Local or Shouters Church in China.
First, as the Tribunal recorded it had put to the Applicant at the 8 October 2014 hearing, it found that his evidence before the previous Tribunal (outlined earlier in its reasons) when asked questions about the Bible and the Shouter faith did not appear consistent with responses which the Tribunal felt might reasonably be expected of a person with the extensive history of involvement with the Shouters since 2001 as claimed by the Applicant. The Tribunal had regard to the fact that the Applicant had depicted himself not simply as a passive member of the church but rather as an activist who had, among other things, proselytised; founded his own branch of the church by recruiting as many as 30 members from among fellow businessmen; made his house available for Shouter gatherings; arranged for other Shouter leaders to attend the gatherings and read the Bible every day. The Tribunal stated that it had considered, but did not find convincing, the various explanations the Applicant had offered for this inconsistency (as detailed earlier in its reasons for decision). Nor did the Tribunal accept the Applicant’s claim that his responses were not as described by the previous Tribunal in its reasons for decision, as the Tribunal had reviewed the audio recording of the two 2011 hearings and was satisfied that the account of those exchanges set out in the first Tribunal’s decision record of 18 November 2011 was “fully accurate”.
Secondly, the Tribunal was not satisfied as to the credibility of the Applicant’s claim that, despite having been arrested by the police at two illegal religious gatherings and narrowly escaping from them a third time when they raided another meeting in July 2009, he was able to find safety by going to live for a year with his brother in Guangzhou. It found that his explanation at the hearing (to the effect that he was not on a wanted list) was at variance with the claim he had made in his second protection visa application that in July 2009 he had been placed on a “wanted for arrest” list after police became aware he was one of the main organisers of a particular church congregation. Insofar as the Applicant explained more generally that at that time he had been wanted only by the local police because the offence of membership of the Shouters Church was not very serious (although subsequently there had been a crackdown on the Shouters), the Tribunal found that the information before it indicated that the Chinese authorities had treated the Shouters Church as an illegal organisation for many years. It was not satisfied that it was plausible that the Applicant’s alleged active involvement with the Shouters Church as one of the main organisers in his area would be seen as a matter of only local significance or that he could have known he would be safe staying with his brother, who, even if he was not a member of the Shouters Church, was a business partner of the Applicant who would have offered an obvious pathway to him for the authorities. The Tribunal was not satisfied that the Applicant’s further explanation that he was on good terms with the relevant local police was any more than an improvisation adopted by him to address an inconsistency in his claims.
Thirdly, having regard to country information, the Tribunal was not satisfied that it was plausible that the Applicant would have been able to obtain a passport in his own name and use it to leave China without difficulty if he had been arrested twice, was on a wanted list as a main organiser of the Shouters Church in his area and was a missionary who preached the gospel. The Tribunal found that the Applicant’s explanation that he had used connections involved a reversal of his earlier evidence that he obtained his passport in the ordinary way. The Tribunal did not find this explanation convincing.
The Tribunal addressed the adviser’s submission that the Applicant was able to leave China because he was not a political enemy of the government, but simply an ordinary Shouter who was not a high-level activist. However it found that this was not the thrust of the Applicant’s own account of his Shouter involvement, which included a claim that he was regarded as a main organiser of the Shouter faith in his area.
The Tribunal also found that the information before it concerning the Applicant’s wife undermined his claim that she joined him in the Shouter faith and was baptised with him in 2001. It recorded that, as it had put to him at the hearing, information before the Tribunal indicated that his wife was able to obtain a passport in her own name and use it to travel to and from Australia on four occasions between 2005 and 2008 (apparently passing through China’s airports without any difficulty) and also to travel to Azerbaijan in May 2014 without any claimed difficulty. The Tribunal was not satisfied that if, as the Applicant claimed, his wife had been present at a 2006 Shouter gathering which was allegedly raided by the police, her involvement in the faith could have been unknown to the authorities. It found that the wife’s ability to travel without any apparent difficulty cast doubt on the claims that she had been a practising member of the Shouters Church since 2000 or 2001 and that she was arrested in March 2012 after Shouter Bibles were discovered in the internet café she was running. The Tribunal also had regard to clear inconsistencies in the Applicant’s evidence regarding the nature and quantity of the Bibles that were discovered (or leaflets, as the Applicant later described them) and the contrast with the evidence given by his wife at the hearing.
The Tribunal accepted that the Applicant’s wife (who had given evidence by telephone) was living in Azerbaijan, but was not satisfied that this was because she was forced to leave China for any reason. It found that she had been unable to provide a coherent explanation as to why, having visited Australia on four previous occasions, she would not have attempted to obtain a visa for Australia. It had regard to colour photographs the Applicant had provided of a female who appeared to have a swollen eye, but was not satisfied that any weight could be attached to these photographs as evidence that his wife was assaulted by police following her arrest for involvement with the Shouters Church.
The Tribunal found that taking these considerations together, it was not satisfied that the Applicant’s wife was a member of the Shouters Church in China; that she was arrested after Shouter’s Bibles or leaflets were discovered at the internet café she was operating in 2012; or that she was forced to flee China and live in Azerbaijan as a result. It found that this cast further doubt over the credibility of the Applicant’s claim to have been a member of the Shouters Church in China to the extent that it was connected with and supported by the claim that his wife was also a member.
Further, the Tribunal recorded that it had put to the Applicant at the hearing the fact that he had delayed leaving China for almost three months after his Australia tourist visa was issued to him in July 2010. The Tribunal was not satisfied that such a delay was consistent with the Applicant’s claim to have feared serious harm and to have been living in hiding in Guangzhou. It considered his explanation to the effect that his older brother had taken care of the details of his departure and had told him to wait until everything was settled, that he was safe in his brother’s house and that he was not wanted nationally. However the Tribunal was not satisfied that this explained why the Applicant would not have taken the first opportunity available to him to escape. The Tribunal was of the view that the Applicant’s delayed departure using a passport issued in his own name was an indication of orderly and unhurried conduct and did not reflect the actions of a person who feared for his safety.
Finally, the Tribunal found that it was difficult to understand why the Applicant would have delayed at least 19 months after arrival in Australia before having any contact with a branch of the Shouter or Local church if he had spent some eight or nine years in China as a member of the Shouters Church and had played an active part in recruiting members at great personal risk. It found implausible his explanation that this delay occurred because he was unable to work out how to travel on public transport from Dee Why to Lidcombe. The Tribunal found that this delay also cast strong doubt on the credibility of the Applicant’s claim that he was a member of the church in China.
The Tribunal stated that in this context it had considered the adviser’s submission that the Applicant had also attended the Merrylands Chinese Christian Church in Guildford (referred to as the Guildford Church) which, although not a Shouters Church, was said by the adviser to be a small independent establishment that had welcomed a number of people from a Shouter background) and the adviser’s claim was that there appeared to be little conflict between the beliefs and practices of the Local Church and the Guildford Church. The Tribunal was not persuaded that this submission was consistent with available information regarding the beliefs and practices of the Local Church which pointed to an organisation which held strongly different views from those of other Christian churches. The Tribunal also noted that while the Applicant had at first maintained that the Guildford Church was the same as the Shouters Church in China, he had subsequently agreed that the two churches were not the same. In any event, the Tribunal found that even if (contrary to its view) there was a substantial degree of overlap between the practices of the Shouters Church and the Guildford Church, this would still not adequately explain why the Applicant would not choose to attend a branch of the Shouters Church in which he had been an active member in China. It noted that while there was a statutory declaration in evidence from a member of the Local Church in Lidcombe which suggested that there were many members of the Shouters faith in the Guildford church who did not wish to leave it, he did not claim that there was any equivalence between the two faiths.
The Tribunal concluded that taking these considerations together, it was not satisfied that the Applicant was in fact a member of the Local or Shouters Church when he lived in China, or that he had any involvement with it when he lived there, or that his wife was a member of the Shouters Church. It followed that the Tribunal did not accept that the Applicant had been harmed by the Chinese authorities in any way because of a Shouter connection or that for this reason he was forced to flee China. The Tribunal found that these conclusions cast “strong doubt” over the reliability of the Applicant’s claims in general. It was unable to be satisfied that he was a witness of truth.
The Tribunal went on to consider the Applicant’s claims about his involvement with the Local Church in Australia. It recorded that he claimed he attended a branch of the Local or Shouters Church in Lidcombe. He had submitted a supporting statutory declaration from a member of that church to the effect that the deponent had introduced the Applicant to that church at the end of May 2012, and that thereafter the Applicant attended at least twice a month until March 2014 when he began attending Sunday services every week and sometimes attended a Bible study group in two other suburbs. However, it also had regard to a pro forma letter signed by two named elders of the Local Church stating that the Applicant had been “meeting regularly with the church since 03.2014”.
The Tribunal observed that the only other documents provided in support of this claim consisted of letters from the pastor of the Guildford Church stating that the Applicant had been attending Sunday services, but had begun to appear less frequently about two years earlier “as he also worships in other Chinese church”. The Tribunal acknowledged that the pastor stated that he understood that the Applicant had been a Christian in China with the Shouters Group prior to coming to Australia, but observed that the pastor did not claim to have any firsthand knowledge on this point and was apparently repeating what the Applicant had told him.
The Tribunal had regard to its lack of satisfaction that the Applicant was a member of the Shouters or Local Church in China or that he had any connection with the Shouter faith in China. It also had regard to the fact that the Applicant’s first claimed contact with the Local Church in Australia was in May 2012, some 19 months after he arrived and also the fact that the evidence of the certificate from the elders suggested that he began meeting regularly with the church only in March 2014, some three and a half years after his arrival. The Tribunal found it difficult to understand why this date would have been quoted by the elders if, as stated by the witness who attested to introducing the Applicant to that church, the Applicant had in fact been attending the church at least twice a month from May 2012 on. It recorded that when asked about the certificate from the elders, the Applicant appeared at first not to recognise the names of the elders and had then explained that he had sought a certificate only because the delegate had asked him to provide evidence of his churchgoing.
The Tribunal considered the reasons the Applicant offered for the anomaly in the dates (to the effect that it was the policy of the church to refuse to provide supporting evidence for those who were making a second application for a protection visa). It was not satisfied that this alleged policy adequately explained why, if the Applicant had been attending twice a month since 2012, the elders would not have known and recorded this fact.
Taking these considerations together, the Tribunal was not satisfied that the Applicant did in fact have any contact with the Local Church in Australia earlier than March 2014, which it noted was the same month in which he lodged his second protection visa application and some three and a half years after his arrival in Australia. Given this, and the fact that the Tribunal did not accept that the Applicant had had any involvement with the church in China or that he was a witness of truth, the Tribunal considered that there were good reasons to believe that the Applicant began to attend the Local Church in Australia in order to strengthen his claim to fear harm in China as a member of the Shouter faith. It was not satisfied that this attendance in itself would attract the adverse attention of the authorities in China.
In light of all the information before it, the Tribunal did not accept that the Applicant had genuinely become a member of the Shouter faith since arriving in Australia such that he would seek to worship as a Shouter in China or have any other form of involvement with the Shouter faith, its practices or beliefs if he returned to China. Hence, it did not accept that the Applicant would come to the adverse attention of the authorities or that he would be at risk of harassment, arrest, detention or any other form of harm for such a reason.
For similar reasons, and despite the letter provided by the pastor of the Guildford Church as to his opinion of the Applicant’s embrace of Christianity, while the Tribunal accepted that the Applicant may have had contact with the Guildford Church since arriving in Australia, it was not satisfied that this was evidence of a genuine involvement with the Christian faith or that it demonstrated that the Applicant would seek to worship in a Christian church or have any other involvement with the Christian faith if he were to return to China in the reasonably foreseeable future. It was not satisfied that he would in fact do so, or that he would in this way come to the adverse attention of the Chinese authorities so that he was at any risk of harm.
The Tribunal also considered the Applicant’s claims based on his political opinion. It did not accept that he was ever a member of the Shouters Church in China and was not satisfied he would seek to so involve himself in this or any other Christian church on return. The Tribunal was not satisfied that the Applicant would be perceived as holding an anti-government opinion as a member of an underground religious cult which refused to register with the government or that there was a risk that he would suffer harm of any kind for this reason now or in the reasonably foreseeable future.
Finally, the Tribunal considered the Applicant’s claimed fear that his personal details had been disclosed on the Department’s website. However, as the Tribunal recorded it had put to the Applicant at the hearing, the information before it indicated (and it accepted) that the Department’s inadvertent release of personal details applied only to persons who were in immigration detention on 31 January 2014. The Applicant did not claim to have been in immigration detention on that date and the Tribunal was satisfied that he was not in fact in detention at that time. Hence the Tribunal did not accept that there was any factual or objective basis for the claimed fear of harm as a result of personal details being available to the Chinese authorities. It did not accept that the Applicant was in fact at any risk of harm for this reason on return to China.
Under the heading “Complementary Protection Claims” the Tribunal summarised its conclusions, finding: “[i]n the light of all the information before [it], considered individually and cumulatively, [it was] not satisfied there is a real risk the Applicant would suffer significant harm in China because of his involvement in the Shouter church or any other Christian church or because of a release of his personal details.” The Tribunal observed that the Applicant had not identified any other factors which could be relevant to an assessment of Australia’s complementary protection obligations in his case. It was not satisfied that the Applicant met the complementary protection criterion. Hence the Tribunal affirmed the delegate’s decision.
These Proceedings
The Applicant sought review by application filed in this Court on 12 December 2014.
In addition to making oral submissions at the hearing (which the Applicant participated in by telephone link) the Applicant sought and was given the opportunity to make post-hearing written submissions. He did not file submissions, but served a document described as an “affidavit” on the solicitors for the First Respondent who brought it to the attention of the Court in their submissions in response. The Applicant was advised that unless he objected the Court would consider the issues raised in this document as his post-hearing submissions. He did not object.
The only ground in the application was as follows:
Tribunal made a jurisdictional error by falling (sic) to consider my eviden (sic) of [illegible] and made [illegible] RRT member reject my story as fabrication.
It appears that the Applicant intended to assert that the Tribunal failed to consider his evidence (or possibly that it failed to consider it objectively). He also took issue with the Tribunal’s credibility finding.
When given the opportunity to make submissions about this ground, the Applicant submitted that the reasons the Department (sic) had used to refuse his application were not sufficient and that everything was based on the fact that they did not believe him and that he did not understand why they did not believe him. I have considered these claims in relation to the Tribunal reasons for decision.
As pleaded, this ground is not made out. Insofar as it alleges a failure to consider evidence, no particulars have been provided of the evidence which was allegedly not considered. It is not apparent on the material before the court that the Tribunal failed to consider any evidence in a manner amounting to jurisdictional error. On the contrary, as the First Respondent submitted, the Tribunal’s reasons reveal a methodical and detailed consideration of the Applicant’s evidence.
Insofar as this ground may be taken as an allegation that the Tribunal was required to provide rebutting evidence before refusing the application that is not the case. It was for the Applicant to put evidence in support of his claims before the Tribunal and for the Tribunal to determine on the material before it whether his claims were made out (see Abebe v Commonwealth of Australia (1999) 197 CLR 510; (1999) HCA 14 at [187] per Gummow and Hayne JJ). The Tribunal is not obliged to accept a claim “merely because positive evidence to the contrary is absent” (SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358; [2004] FCA 1595 at [36] per Hely J).
Further, neither actual nor apprehended bias is made out on the material before the Court (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28). It is a rare and exceptional case in which actual bias is demonstrated from the Tribunal’s reasons. There are no transcripts of the Tribunal hearings in evidence. The Tribunal’s fact finding has not been conducted in a manner indicative of actual or apprehended bias. Credibility findings are a factual matter for the Tribunal as the decision-maker par excellence (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1). The Tribunal’s findings, in particular its credibility findings, were open to it on the material before it for the reasons which it gave and cannot be characterised as illogical or unreasonable. The Applicant’s disagreement with those findings does not establish jurisdictional error.
No jurisdictional error is established on the basis contended for in the Application.
In his supporting affidavit the Applicant claimed to face a serious risk of persecution if he returned to China. Such claim was said to be consistent with the principles in SZGIZ. However the Tribunal correctly understood that as the first protection visa application was made on the basis of the Refugees Convention criterion in s.36(2)(a) of the Act s.48A did not prevent the second application on the basis of the complementary protection criterion in s.36(2)(aa) of the Act. It did not err in confining its consideration to that criterion. The Tribunal also had regard to the family member criterion in s.36(2)(c) in circumstances where both the Applicant and his daughter were applicants. Beyond this the Applicant seeks impermissible merits review.
In post-hearing “submissions” the Applicant claimed that the Tribunal decision was “unsupported by evidence”. Paragraph 54 of its reasons for decision was criticised by the Applicant. It was submitted that in reaching a conclusion that it was not satisfied that it was plausible that the Applicant would have been able to obtain a passport in his own name and use it to leave China without difficulty if he had been arrested twice, was on a wanted list as a main organiser of the Shouters Church in his area and was a missionary who preached the gospel, the Tribunal had failed to provide “strong evidence” in support of what was said to be its finding that “connections” played little role in Chinese daily life. It was submitted that the Tribunal had “no evidence” to downgrade the importance of “connections” or “Guanxi” in China.
This part of the Tribunal decision was as follows:
54. Third, and on a related matter, I am not satisfied it is plausible that the Applicant would have been able to obtain a passport in his own name and use it to leave China without difficulty if he had been arrested twice and was on a wanted list as a main organizer of the Shouter church in his area and a missionary who preached the Gospel. As put to him, the information before the Tribunal indicates that the documentation required for passport issue includes, among other things, clearances from local police. I note that in response he reversed his earlier evidence that he obtained the passport in the ordinary way be claiming that he had used ‘connections,’ or guanxi, to do so, suggesting this was ‘normal.’ I am not satisfied that this explanation is convincing.
The Tribunal considered the Applicant’s explanation that he used connections or “guanxi” and that this was “normal”. However the Tribunal also had regard to the fact that this explanation (said to have been provided in response to the Tribunal raising both this issue and independent country information with the Applicant at the hearing) reversed the Applicant’s earlier evidence that he had obtained his passport in the ordinary way. In these circumstances the Tribunal was not satisfied that this explanation was convincing. However contrary to the Applicant’s submissions the Tribunal did not find that connections or “guanxi” played no role in Chinese life or “downgrade” the importance of “guanxi” in China.
Insofar as the Applicant took issue generally with the Tribunal’s findings in this part of its reasons for decision, the Tribunal referred to country information in relation to the documentation required for the issue of passports in China. It explained the basis for its reasoning. It cannot be said that there was “no evidence” for the Tribunal’s finding that it was not satisfied as to the plausibility of the Applicant’s explanation. This finding was in substance a negative one (see Sunchen Pty Ltd v Commissioner of Taxation (2010) 264 ALR 447; [2010] FCA 21 at [43] to [45]). The Tribunal considered the Applicant’s claim that he had obtained his passport by using connections or “guanxi”, but was “not satisfied” by this explanation. In the absence of a positive state of satisfaction that the Applicant was owed protection obligations the visa had to be refused (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]). As indicated, there is no requirement that the Tribunal disprove an Applicant’s claim by rebutting evidence.
Paragraph 2 of the post-hearing submissions asserts that the Tribunal misunderstood the Applicant’s claim and hence did not deal with it. In particular, it was submitted that at paragraph 55 of the reasons the Tribunal “wrongly construes that [he] must have good knowledge to the Bible simply by reference to that [he was] an activist in preaching the Gospel, organised gatherings with more than 30 believers”. It was submitted that the Tribunal had “given misconstruction” insofar as it regarded organising a gathering as “founded a branch of the Shouter Church” and that it had also misconstrued the “invitation of participating gathering” as “recruiting”. It was therefore submitted that the Tribunal had wrongly concluded that the Applicant was “of the most interest to the authorities.” The Applicant contended that the Tribunal had “escalated [his] role of involvement with the Shouter Church by taking into account irrelevant consideration.”
The Tribunal addressed the Applicant’s knowledge of the Bible and the Shouter faith in both paragraphs 52 and 55 which are as follows:
52. First, as put to the Applicant at the Tribunal hearing on 8 October 2014, his evidence before the previous Tribunal when he was asked a number of questions about the bible and the Shouter faith does not appear consistent with the responses which might reasonably be expected of a person with the extensive history of involvement in that faith since 2001 he claims. I note that in this history he depicts himself not simply as a passive member of the church but rather as an activist who, among other things, proselytized by preaching the Gospel to others, founded his own branch of the Shouter church by recruiting as many as thirty members among fellow businessmen, made his house in Fujian available for Shouter gatherings, arranged for other Shouter leaders to attend these gatherings and read the Bible every day. I have considered, but do not find convincing, the various explanations he offered for this inconsistency. Nor do I accept that his responses were not as described by the previous Tribunal – having reviewed the audio recording of the hearings in August and October 2011 I am satisfied that the account of these exchanges set out in the Tribunal’s decision record of 18 November 2011 is fully accurate.
…
55. I also note the advisor’s submission that the Applicant was able to leave China because he was not a political enemy of the government but simply an ordinary Shouter who was not a high level activist. This is, however, not the thrust of the Applicant’s own account of his Shouter involvement. As noted, in some contrast to the picture of an ‘ordinary Shouter’ he claims he actively recruited thirty members and founded a branch of the church, made his house available for Shouter meetings, was arrested on two occasions and narrowly escaped arrest on a third, and was regarded by the police as a main organiser of the Shouter faith in his area.
It appears that the Applicant does not take issue with the Tribunal’s finding about the extent of his knowledge of the Bible and/or the Shouter faith. In any event, such finding was based on evidence before the Tribunal, including the Applicant’s evidence to the first delegate and first Tribunal, as well as to the second delegate and at the hearings conducted by the second Tribunal. For example, according to the Tribunal the first delegate had recorded that at interview the Applicant was not familiar with the basic practices of the Shouters or the distinctive features of the Recovery Bible used by the Shouters. The delegate gave specific examples of the Applicant’s evidence on these issues. Similarly, the first Tribunal had explained in some detail its concern about the vagueness and lack of convincing detail in the Applicant’s evidence of his Christianity, practice, beliefs and activities. Similar concerns (supported by a lengthy account of the Applicant’s interview with the delegate in 2014) were expressed by the second delegate. Finally, at hearing the second Tribunal raised with the Applicant its concern that his answers to a number of the previous Tribunal’s questions about Christianity and the Shouter religion appeared unusual and inconsistent with what would be expected of a person who had been a member of the Shouter faith since 2001 as he claimed. The Tribunal’s findings in paragraph 52 about the Applicant’s evidence were open to it on the material before it for the reasons he gave.
In making these findings the Tribunal did not take on the role of impermissible arbiter of doctrine (bearing in mind the remarks of Kenny J in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [37]-[38]). Rather it concluded, after consideration of the matter and without any apparent preconception as to knowledge all Shouters church adherents would demonstrate, that in his particular claimed circumstances the Applicant’s lack of knowledge did not appear consistent with what might reasonably be expected of a person with an extensive history of involvement in that faith since 2001.
Insofar as the Applicant’s complaint is that the Tribunal overstated his Shouters Church involvement, or proceeded on a misconception that he was more heavily involved in the Church than was in fact the case, in paragraph 52 the Tribunal accurately recorded the Applicant’s own evidence about his involvement. Moreover this is to be seen in light of paragraph 55 of the Tribunal’s decision in which the Tribunal considered, but did not accept, the adviser’s submission that the Applicant did not claim to be a high level activist, but simply an ordinary Shouter having regard to the Applicant’s own evidence.
The Tribunal’s summary of the Applicant’s claims in relation to the level and nature of his involvement with the Shouters Church in China was consistent with his claims in statutory declarations supporting the two protection visa applications and also with the Tribunal’s account of the Applicant’s oral evidence.
Thus, insofar as the Applicant takes issue with the Tribunal’s consideration of the nature and belief of his involvement in the Shouters Church in China it is notable that in his statutory declaration of 24 January 2011 the Applicant described claimed past arrests, explained how in Jiangxi he had met a lot of local businessmen and shared the gospel with them and claimed that “[a]fter a year, we have 30 believers in our church.” He also claimed that he was viewed as a “cult leader” or “leader … of an illegal organisation”. Similarly, in his statutory declaration of 3 March 2014 the Applicant maintained his claim of heavy involvement in Local Church activities and that he was “one of the main organisers of the church congregation” in Jiangxi. Moreover at hearing the Tribunal confirmed the Applicant’s claims about his activities, including in Jiangxi and his role in “recruiting” businessmen.
It has not been established that the Tribunal misunderstood the Applicant’s claims about the level of his involvement in the Shouters Church or misconstrued aspects of his claims in the manner that is now contended.
No jurisdictional error is established on the basis contended for in paragraph 2 of the post-hearing submissions.
Finally, in paragraph 3 of the post-hearing submissions the Applicant contended that the Tribunal had failed to disclose country information in reaching its findings. In particular, it was asserted that in paragraph 53 (which dealt with the credibility of the Applicant’s claim that he lived safely with his brother for a year in Guangzhou and the reasons he claimed he was able to do so) the Tribunal did not provide sufficient country information in support of its finding that membership of the Shouters Church would not be seen “as a matter of only local significance.” It was contended that in China the local authorities were sometimes more powerful than the “upper” authorities, that the authorities did not act according to the law, but rather acted for the Communist Party’s or political interest and that political power was “above the law”.
In essence, it appears that the Applicant takes issue with the Tribunal’s rejection of his explanation that he was able to live safely in Guangzhou for a year because he was wanted only by the local police in Fujian and Jiangxi and not nationally. The Tribunal recorded that it put the substance of relevant country information to the Applicant at the hearing. It was not required to put to the Applicant specific independent country information in support of its view that the information before it indicated that the Chinese authorities had treated the Shouters Church as an illegal organisation for many years and its lack of satisfaction that it was plausible that his alleged active involvement with the Church as one of the main organisers in his area would be seen as a matter of only local significance.
The Tribunal recorded that during the hearing, in the course of discussion of the Applicant’s claim about Guangzhou, the Tribunal put to the Applicant that the information before it indicated that the Shouters had been regarded by the authorities as an evil cult and illegal organisation for some years (including when he was in China) and that the Chinese police were linked with a sophisticated computer network. The Tribunal also raised with the Applicant its concern about his claim that his activities would be seen as only of local significance. There is no evidence of any failure to raise dispositive issues as required under s.425 of the Act. Country information is outside the s.424A(1) obligation (see s.424A(3)(a)). As the First Respondent submitted, the Tribunal is required to provide reasons for its findings, not evidence in support of them. It was not required to present rebutting evidence before finding that it was not satisfied as to the plausibility of an aspect of the Applicant’s claims. Insofar as the Applicant seeks to cavil with the merits of the Tribunal’s findings, he seeks impermissible merits review.
As no jurisdiction error has been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 24 June 2016
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