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[2019] FCA 716
Federal Court of Australia
2019-05-20
Steward J
Original judgment source is linked above.
STEWARD J: 1 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 5 February 2010 on a student visa. The visa expired on 2 August 2010, and thereafter the appellant remained in Australia as an unlawful non-citizen. Over four years later he applied for a protection visa. A delegate of the first respondent (the "Minister") refused the grant of that visa on 9 November 2015. The appellant sought review of that decision in the Administrative Appeals Tribunal (the "Tribunal"). By a decision dated 23 December 2016, the delegate's decision was affirmed. The appellant sought judicial review of that decision in the Federal Circuit Court. That application was dismissed on 4 December 2018. The appellant appeals that decision to this Court.
Background 2 In general terms, the appellant seeks a protection visa on the ground that, as a convert to Christianity, he will face persecution by the Communist government in China. He relied in particular on the fact that he had sent his aunt in China, who is also a Christian, some material about Christianity via the internet. He said that his aunt had been persecuted because of her faith, and that the authorities had found this material and had told the aunt that he and she would be arrested if they continued to be involved with the underground church. His aunt warned him not to return to China. The appellant gave two versions of his claim that he would suffer in this way if returned to China. In his written statement to what is now called the Department of Home Affairs, he said: My aunt has heart disease for years. From my memory, she always gets sick easily and goes to hospital. She has previously done operations once. Due to her health problem, she retired long time ago. Once upon a time, I accidentally found out that she is a Christian. Apparently, she started to have connections with Christians through her friends. She met some of her friends who believe in Christianity. Later she joined them. I came to Australia years ago. Recently, my aunt asked me to help her find some related materials about Christianity and send to her through via mail and internet. I didn't think too much at the time and helped to get relevant materials for her. My aunt was questioned by local security people participating in underground church activities. She told them that she did not attend any activities against the government because she just wanted to serve the Lord. They warned her to stop it immediately; otherwise she will be in trouble. She did not paid any attention to it and continue attending activities. Later my aunt was formally warned by local security and they checked her home. The police found out the Christian materials which I sent her. She was told that both she and myself would be arrested if continue to have any relation with underground church. My aunt was shocked by it and warned me not to go back to China because she was concerned about my safety would be in risk due to her religion. (Errors in the original.) 3 In the statement given to the Tribunal, the appellant said: About My Faith: I came from the countryside of Henan Province. At the age of eight, I was taken by my grandparents to a house church to be baptized. At that time, I had little knowledge what a Holy Spirit was. I only knew that God was an even kinder person than my own parents, who could give me all that my parents couldn't. So I never knelt before anyone else except my grandparents and God. Both my parents were atheists, who were against my religious belief. They knew nothing more than making money and they taught me to be a good boy by being somebody in the future and making more money when I grew up. From my early age, I made it a rule to read my prayers often and make confessions of my sins if I committed any. When I was in my second year of middle school, I was punished by the local government for attending the house church at my grandma's house. My family was fined RMB 5,000 and our farm vehicle we used to transport our fellow brothers and sisters to the house church was confiscated. Meanwhile, I was severely reprimanded by our teacher at school and was cautioned not to take up any religious faith or attend any unauthorized churches. Or else, we were threatened; we would be expelled from the school. So, from then on, my family never allowed me to attend any house churches. I was an introvert and I obeyed my parents so unconditionally that I accepted the marriage my parents had arranged for me without any reservation. Actually, I was not happy about my marriage, but I had to grin and bear it, because all the Christians should obey the God's laws. The Ten Commandments in the Old Testament explicitly stipulated that God's children should be loyal to their marriages and husband should never divorce their wives. I had a son and I had never revealed before him any grievances against my marriage. I always told him that this parents were the persons who loved them best. As a Christian, I of course wished my ex-wife to share the same faith with me, but my ex was not such a person and we could never get a consensus on our problem of faith. Her indifference to and repellence against Lord Christ had offended me over and over, and the cracks in our relationship were becoming wider and wider. But for God's sake, I tried hard to endure it all. In 2010, I came to study in Australia and soon my ex-wife came, too. Actually at that time, something must have gone wrong within our marriage. Things went on worsening until on October 4th of 2012, we finally went through all our divorce proceedings in Australia. After our divorce, I was reluctant to come back to China, because I feared to face my family members and friends, so we kept our divorce a secret. To distract myself from the frustration over our breakup, I went to work in a mine in Western Australia. During that period, I didn't feel lonely and helpless because I had my own faith as my spiritual pillar. Later, an aunt of mine at my hometown accepted my preaching and began to attend a house church in her place. She hoped I could send her some gospel materials from the church. I passed the gospel information I got from the websites on to my aunt through the internet, but I never expected that my act should have caused her so much trouble. She was reported by someone to the police that she was participating in the preaching of gospel. She was then put under detention to be investigated. During the investigations, my gospel materials were discovered, and I was consequently targeted as a suspect by the security police. I didn't realize until later that some contents in the gospel materials I had sent out involved the Chinese communists' corruption and their kangaroo courts, which were frequently cited as witnesses by Christians. Such distributions of religious information, in my opinion, embodied the freedom of faith, but in China it was strictly forbidden. Much more similar web news was censored by the Chinese Communist Party. A cruel fact was that in China, gospel preaching was totally outlawed, and all unauthorized churches were labelled as illegal underground churches, which would surely be monitored, investigated, persecuted or simply banned at all. Dangers were lurking everywhere and all those churches were in a precarious situation. The church my aunt was attending was just an unauthorized one. She was arrested at the beginning of 2014. Therefore I judged that the religious situation in China hadn't yet improved fundamentally, and those underground churches were still being oppressed. That was why I lodged a protection application in October, 2014. As a matter of fact, I'm now attending a Presbyterian Church in Western Australia. As it was somewhat different in rites from my original church in China, I applied for a new baptisms ceremony. In 2016, the pastor of the church approved of my application and I was accepted and raised spiritually by that church. I decide to stay in Australia not only for the chance of being educated but also for family reason, more important for enjoying the present freedom of faith if I were in China. One of my countrymen in Australia, who had been in China frequently, cautioned me that the religious situation in China was still very tense, and cases like my aunt's repeated in many other places. The local governments even went so far as to pull down the church buildings. What was worse, I was involved with my aunt's case, so I dared not to go back to China all the more. I'm now filing this application with a purpose to defend my right to the freedom of faith. I can do without a family but I can't do without a church to support me spiritually, which is quite impossible in China. I have no family in China; the church in Australia is my home. So I hope the Australia Government can understand my explanations better and have more mercy on me. (Errors in the original.) The appellant claimed that at the time of the Tribunal hearing he was a member of the "Carmel-Bible Presbyterian Church". There was a document from that church in evidence confirming his baptism on 27 March 2016.
The Tribunal 4 The Tribunal otherwise had concerns about the genuineness of the appellant's Christian beliefs because he could not say whether the church he had attended in China was Protestant or Roman Catholic. His evidence about the services he had attended was described by the Tribunal as "vague and lacking in detail". 5 Relevantly, the Tribunal made the following findings: (a) there were inconsistencies in the evidence given about when the appellant stopped attending church in China; (b) the appellant's decision to leave China was not related to his Christian beliefs; (c) the appellant gave contradictory evidence as to how and when his aunt became a Christian and the problems she had faced due to her religious activities; and (d) the appellant had not attended any church or engaged in religious activities in Australia from 2010 to 2016. 6 The Tribunal concluded that the appellant's claim that he would be arrested, detained, given a warning and fined, did not in any event amount to serious harm as defined by former s 91R(2) of the Migration Act 1958 (Cth) (the "Act") which provided as follows: (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill‑treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 7 The Tribunal decided that given the appellant's limited involvement with religious activities onshore, it was unable to accept the genuineness of his claim of religious belief. 8 The Tribunal otherwise summarised the principles applicable to a claim made for the purposes of s 36(2)(a) at [5]-[14] of its reasons for decision. It has not been suggested that the Tribunal thereby erred, or had expressed a misunderstanding of the law. 9 In affirming the delegate's decision, the Tribunal took into account the delay in seeking the protection visa and ultimately made the following conclusions at [75]-[81]: 75. The Tribunal does not accept that the applicant has a well-founded fear of serious harm, from the Chinese authorities, or anyone else, because of his or his family's involvement with the underground churches. 76. Given the applicant's limited involvement with religious activities in Australia, the Tribunal does not accept that the applicant will involve himself with the underground churches upon his return to China. It follows that the Tribunal does not accept the applicant has a well-founded fear of serious harm from the Chinese authorities, or anyone else, due to his religious beliefs. 77. As the Tribunal is not satisfied that the applicant has a well-founded fear of persecution if he were to return to China, the Tribunal finds that he is not a person who has a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future, and is not a person to whom Australia has protection obligations under the Refugees Convention. 78. Likewise, for the same reasons, the Tribunal is 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, there is a real risk that he will suffer significant harm. 79. For the above reasons, I am therefore not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason in China. Hence, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and the applicant therefore does not satisfy the criterion in s.36(2)(a). 80. As I have not accepted that the applicant faces significant harm in China, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Thus, I am not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa). 81. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
The Federal Circuit Court 10 The grounds of review relied upon before the primary judge were as follows: 1. I don't think DIBP and AAT's decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in Australia. 2 DIBP and AAT's did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact. 3. AAT failed to prudently consider my risk, especially my commitment of paralyzing if I return to origin. 4. AAT's failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole. 5 AAT treat my case unfair and unreasonable and did not consider that I will be persecuted by the Chinese government due to my Christian believe. Grounds of the application 1. I have been actively involved in church actives in Australia. my action and religious performance has been evidenced by church elder with reference. 2. AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence. 3. The tribunal's decision could give rise to an apprehension of bias in the mind of a reasonable observe. (Errors in the original.) 11 Each ground of review was rejected in brief terms on the following grounds, namely that the Tribunal's decision was "logical" and was supported by rational reasons; that it made findings that were open to it to make; that some of the grounds of review relied upon were no more than an expression of disagreement with factual findings made below; that the Tribunal properly took into account all of the appellant's claims; that it was entitled to have regard to the delay in making the visa application; and that there was no substance to the claim of apprehended bias. It followed that the Tribunal's decision was not infected by jurisdictional error. The application for review was dismissed.
The Appeal 12 The grounds of appeal differed from the grounds of review below, and were as follows: 1. RRT and Federal Circuit Court failed to Consider my explanation and supporting documents to support my appeal which I believe it is a legal error 2. I am a Chinese citizen and have been actively involved in church actives in Australia who will be facing persecution by Chinese government due to my believes 3. I cannot go back to China since I am very scared to be sentenced and discriminated. 4. AAT member and the Federal court did not well consider of my fears and persecution if return to my home country. (Errors in the original.) No complaint was made about the fact that the grounds were in different form. 13 The appellant, before me, was not represented. The first ground appeared to be a complaint that the Tribunal had failed to consider a material integer of his claim that he would be persecuted if he were to return to China. 14 Recently in Navoto v Minister for Home Affairs [2019] FCA 295, the Chief Justice of this Court after considering the decisions of the Full Federal Court in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, in Hay v Minister for Home Affairs [2018] FCAFC 149, and in Minister for Home Affairs v Buadromo [2018] FCAFC 151, said at [47]: From the above discussion it can be taken that a failure to consider or take into account matters of sufficient importance in the representations may amount to jurisdictional error either because it cannot be said that the required state of satisfaction has been reached in accordance with the section in all the circumstances, or because not to take such an important matter into account reflects a failure to take into account all the representations. One should be cautious about over reliance on textual taxonomical precision in this area. There will be jurisdictional error if material important in the representations has not been taken into account so as to make the purported exercise of the power not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole. An evaluation of this will be context and circumstance specific. Textual formulae are of little assistance. I respectfully adopt the foregoing statement of principle of Allsop CJ. 15 The issue is whether the Tribunal overlooked important material or evidence. The Minister submitted that it had not. In that respect, this included a claim made at the bar table before the learned primary judge below that the appellant was facing criminal charges in China. 16 The appellant did not file any written submissions as required. Before me he submitted that Christians are still not free in China, and that the church was being dismantled. He also pointed out that he had posted some material to China, which may have broken Chinese law. After inquiry, he confirmed that this was the email sent to his aunt. In my view, these submissions factually traverse claims which were made before the Tribunal and which were rejected. It was not shown that in the process of rejecting the appellant's claims the Tribunal had relevantly erred in law, nor was it shown, with respect, that an issue had been overlooked or material evidence ignored. Ground one is rejected. 17 The Minister submitted that the second and third grounds were no more than attacks on the merits of the findings made by the Tribunal. Expressed as they are, I respectfully agree with that observation. Before me, the appellant said that he felt free in Australia, and inferentially, that he could freely practice the Christian religion here. In contrast, in China, one could not practice the Christian religion freely, and he pointed out that the government had confiscated his family's farm machinery, and that they had been fined. He otherwise agreed that what he feared was the type of arrest, detention, warning and fine before being released as referred to at [73] of the Tribunal's decision. These possible consequences, however, were found by the Tribunal not to constitute "serious harm" as set out in former s 91R(2) of the Act. That conclusion of law was not suggested to be incorrect. It follows that grounds two and three are not made out. 18 The fourth ground was an expression that the Tribunal had reached the wrong conclusion concerning the application of s 36(2)(a) of the Act. As such, it did not identify any error of law, and for that purpose was meaningless. It did not appear to take issue with any of the findings made by the primary judge concerning the Tribunal's reasoning. Before me, the appellant again stated that he feels free in Australia and that he will lose his freedom in China where he may be placed under surveillance. The appellant said that he was worried about losing his freedom. That is understandable. Australians continue to enjoy considerable liberty. However, a love of liberty is not a sufficient ground without more for the grant of a protection visa. Moreover and critically, it does not lead to the identification of any jurisdictional error in the reasons of the Tribunal or Federal Circuit Court. Ground four is rejected. 19 For the foregoing reasons, this appeal must be dismissed with costs as assessed or agreed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.
AFH17
Minister for Home Affairs