ASG19 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal be allowed.
2. The First Respondent pay the Appellant's costs of the appeal as taxed or agreed.
3. The notice of appeal be deemed to include a ground 3 to the effect that 'The Tribunal failed to give proper, genuine or realistic consideration to the fact that the letter from Mr Xue corroborated the Appellant's version of the events of May 2013 or constructively failed to exercise its jurisdiction by not dealing with the Appellant's claim based on those events.'
4. The orders of the Federal Circuit Court made on 14 November 2019 be set aside and in lieu thereof the following orders be made: (1) The decision of the Administrative Appeals Tribunal dated 8 February 2019 be set aside. (2) The Administrative Appeals Tribunal, differently constituted, consider the Applicant's review application according to law. (3) The First Respondent pay the Applicant's costs as taxed or agreed.
5. The First Respondent's name be changed to the 'Minister for Immigration, Citizenship and Multicultural Affairs'. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This appeal concerns a decision of the Migration & Refugee Division of the Administrative Appeals Tribunal ('Tribunal') which the Appellant claims should be set aside. The Federal Circuit Court of Australia refused to do so and the Appellant has appealed. For the reasons which follow, the appeal should be allowed with costs. 2 The Appellant arrived from China on 22 January 2015 on a tourist visa (more precisely, a subclass 600 visitor visa). On 2 March 2015 he sought the issue to him of a protection (subclass 866) visa. Under the Migration Act 1958 (Cth) ('the Act'), visa applications are determined by the Minister administering that Act: s 65. The Minister may delegate his powers under the Act (s 496) and, in practice, decisions on most visa applications are dealt with by the Minister's delegates. Whilst there are many requirements which must be met for the issue of a protection visa, a central requirement imposed by s 36(2)(a) is that the delegate should be satisfied that the applicant is a refugee or, in the alternative, that the applicant is a person in respect of whom Australia has protection obligations because there is a real risk the applicant will suffer significant harm if removed back to their country of origin: s 36(2)(aa). 3 The word 'refugee' is defined in s 5H(1)(a) to mean, relevantly, a person who is unable or unwilling to avail himself or herself of the protection of their country of nationality owing to a well-founded fear of persecution. 4 The basis of the Appellant's protection application was that he is a practising Roman Catholic and, in China, was a member of what is known as an underground Catholic Church. In China, the Catholic Church is organised in such a way that it is independent of the Holy See. However, there are Catholics in China who continue to recognise the authority of the Bishop of Rome and, without dwelling on the detail, it may be said that the People's Republic of China is not well-disposed towards persons of this kind or to the underground churches at which they come together to practise their faith. The Appellant's claim for refugee status therefore invoked s 5J(1) which provides, relevantly, that a person has a well-founded fear of persecution if they fear being persecuted for reasons of religion. 5 In his written application for the visa, the Appellant gave an account of the history of his Roman Catholicism. This included having been introduced to it by his wife in 1996. She was Roman Catholic and, in order to marry her, he had been baptised and confirmed in 1997. Thereafter, he gave a version of events which featured participation in the affairs of underground churches and correlative persecution at the hands of the police and the authorities. 6 The delegate who decided the Appellant's protection visa application found that the Appellant was not a witness of truth and may have either embellished or entirely fabricated his material claims. This resulted in a finding that the Appellant was not a committed adherent of the Catholic faith and that he was neither a refugee nor someone to whom Australia owed protection obligations. The delegate therefore refused his application for a protection visa. The Appellant next applied for a review of this decision before the Tribunal but it, too, did not accept that he was a refugee or a person to whom Australia owed protection obligations, affirming instead the delegate's initial decision. Judicial review proceedings brought by the Appellant in the Federal Circuit Court were, by order, dismissed and it is from that order that the present appeal has been taken. 7 The appeal must be allowed for the following reasons. 8 The Appellant gave an account of an incident on 1 May 2013 in which he said that he and his wife had attended a gathering of an underground church. The Tribunal recorded this account of this meeting and the attendance of the constabulary at [7] of its reasons in the following terms: On 1 May 2013 during a gathering, while they were studying the Bible police officers entered and confiscated the study catechism, bibles, rosary beads and saints pictures. They were taken to the police station. They were separated for interrogation. He did not argue with the police because he feared that his wife would be put in jail. He was beaten savagely. They made him sign documents and he was detained until 3 days later when a work colleague paid the fine. After his release he was fired. They then returned to their home town where he worked in a stone mill. 9 The Appellant provided the Tribunal with corroborating evidence of his account of the events of May 2013. That evidence consisted of a letter from a Mr Xue dated 20 January 2019. In that letter, Mr Xue stated that he had known the Appellant for more than ten years because they both worked in the wholesale seafood business in a particular town in China, that the Appellant and his wife were very devout Catholics and, importantly, that he remembered an incident in May 2013 where the Appellant and his wife had been taken away by police after attending a church meeting. 10 The reference was in these terms: To whom it may concern: My name is Xingfu Xue, an Australian PR, currently residing at [Redacted]. I came from China. I have know[n] [the Appellant] for more than ten years. Before I migrated to Australia in 2015, I used to work in a wholesale seafood business based in [Redacted] China since 2007. [The Appellant] also worked with another wholesale seafood business in the same town. We began to know each other since then. [The Appellant] and his wife are very devout Catholics. Both of them were always keen to spread God's Gospel. I can still remember that in May of 2013, around the Labour's Day holiday period, [the Appellant] and his wife were taken away by local police while they were attending religious activities with other church friends in [Redacted]. They received unfair treatments in the police station. [The Appellant] also lost his job consequently. In Sydney, he attends the Sunday Mass regularly in Flemington. I believe that he is a genuine and practicing Roman Catholic. Sincerely Yours, Xingfu Xue (Certain place names and addresses redacted) 11 It is arguable that the Tribunal did not accept the Appellant's account of the incident in May 2013 because he was unable to recall the questions he had been asked during his interrogation (at [73]): In the applicant's written statement provided with his visa application he claimed that he commenced his Catholic practice in May 1996 when he met his wife who is a devout Catholic. He claimed that she evangelised and persuaded his parents to become Catholics. He claimed that in May 2013 while studying the Bible, 4 police officers rushed into the gathering, confiscated the study catechism, bibles, rosary beads and saints' pictures. He claimed that he was taken to the police station interrogated and beaten. He also claimed that in July 2014 while attending a rosary prayer gathering a group of police burst in and took 16 attendees to the Public Security sub--Bureau where he was interrogated overnight for about one hour. However when the Tribunal asked the applicant about the questions asked during the interrogation his only response was that they asked him not to attend the underground church. The Tribunal gave the applicant another opportunity to describe the questions asked during the interrogation and he merely indicated that they had beaten him. The Tribunal finds the applicant's oral evidence regarding his claims to have been interrogated to be unpersuasive. It is of the view that if the applicant had been interrogated as described he would have remembered the questions asked. It notes that his written submission does not include the questions asked during that interrogation. The Tribunal has formed the view that the applicant was not able to recall the questions he was asked during the interrogation because the incident did not occur. It has formed the view that the applicant has manufactured this evidence. 12 One reading of [73] is that the last two sentences did not involve a rejection of the Appellant's claims in relation to his interrogation in May 2013 but instead those relating to his interrogation in July 2014. Another is that it did. In either case, as will be seen, there is a problem. It is convenient to assume in the first instance that [73] involved a rejection of the Appellant's claims in relation to the May 2013 events. 13 On that assumption, in reaching this conclusion the Tribunal did not advert to the fact that Mr Xue's reference provided corroborating evidence. If the Tribunal were to reach the same conclusion despite Mr Xue's corroborating evidence it would have been required to explain why it did not accept that his letter was reliable. There could have been but three such explanations: (a) Mr Xue's letter was not genuine; (b) the letter was genuine, but Mr Xue was not telling the truth; or (c) the letter was genuine and Mr Xue was giving an honest account but he was mistaken in thinking he had seen the Appellant and his wife taken away by the police in May 2013. 14 It is clear that (a) was not open to the Tribunal because it accepted at [72] that the letter showed that the Appellant had been attending St Dominic's Church at Flemington: On the basis of the letters of support from … Xingfu Xue the Tribunal accepts that the applicant has been attending St Dominic's Catholic Church in Flemington. 15 It is impossible to determine whether, in that light, it would have accepted Mr Xue's statement that he had seen the Appellant taken away by the police in May 2013. It did make a finding about another part of Mr Xue's letter where he had said that the Appellant and his wife were 'very devout Catholics' but this finding is obscure. The Tribunal felt that Mr Xue's statement could not 'overcome' the concerns that it had about the veracity of the Appellant as a witness. Those concerns arose from its view that the Appellant's knowledge of Catholic practice in China was vague. The precise manner in which the Tribunal (at [74]) expressed itself about this matter bears setting out: The Tribunal also notes that when asked about his Catholic practice in China, the applicant merely indicated that he belonged to the underground Catholic Church and that they read the rosary and Bible. The Tribunal had to prompt the applicant for further evidence about his Catholic practice in China and he indicated that he also worshipped the body of Christ on the cross. His evidence about bishops during this period was vague and unpersuasive. The Tribunal accepts that the applicant was able to name two bishops however it notes that he initially indicated that there was no bishop in Fujian. It has formed the view his oral evidence on the bishops was vague and unpersuasive. The Tribunal takes into account Mr Xue's assertions that the applicant and his wife were devout Catholics in China however it is not satisfied his evidence overcomes the Tribunal's concerns about the applicant's lack of evidence to support claims that he was a practising Roman Catholic for over 18 years before coming to Australia in 2015. Overall the Tribunal is of the view the applicant's oral evidence describing his Catholic practice in China is vague, limited and not indicative of a person who practised as an underground Catholic in China for over 18 years. 16 It is possible that the Tribunal was saying that it did not accept Mr Xue's statement as true because it did not accept the Appellant's evidence was true. If so, it reasoned that it was disbelieving a corroborating witness because it did not believe the evidence of the person whose account was being corroborated by that witness. 17 On the other hand, it is possible the Tribunal reasoned that Mr Xue was telling the truth but was mistaken in thinking that the Appellant and his wife were very devout Catholics. Since Mr Xue also said that he had known the Appellant for more than ten years after meeting while they were both still in China such a conclusion might have been difficult to reach on the evidence before the Tribunal. Having accepted that the letter was genuine and that Mr Xue was telling the truth, certainly to the extent that he said that the Appellant attended St Dominic's in Flemington, it is not clear how such a conclusion could be reached. 18 But that does not matter and it is not necessary to draw a conclusion about it. The Tribunal was bound to give the Appellant's claims about the May 2013 events proper, genuine and realistic consideration as a significant matter: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]. I do not doubt that the Appellant's claims about the May 2013 events were a significant matter. They were an integer of his protection claims and, as such, were set out by the Tribunal at [7]. Further, whatever [73] means it includes the Appellant's evidence about the May 2013 events and shows that the Tribunal understood the Appellant to have advanced a case based on those events. Thus, the Tribunal was bound to give the May 2013 events proper, genuine and realistic consideration. The question which then arises is whether that obligation bound it to consider the terms of Mr Xue's letter and deal with them. Two issues arise. First, whether the Appellant advanced a case based on the letter; and second, whether the Tribunal had to consider it where it disbelieved the Appellant's evidence about the events of May 2013.