BDY16 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an appeal from orders made by the Federal Circuit Court of Australia on 11 May 2018 dismissing an application for judicial review of the Administrative Appeals Tribunal (the Tribunal) made on 18 April 2016, which affirmed the decision of the delegate of the Minister made on 16 June 2014 not to grant the appellant a Protection (Class XA) visa. 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 31 January 2014 on a Subclass 600 Visitor visa that had been granted to him earlier that month. Although he entered Australia as part of a tour group, the appellant quit the group upon arrival and lodged the protection visa application with which this appeal is concerned on 10 February 2014. The appellant was granted an associated Bridging visa A on the same day. 3 After the appellant attended an interview on 12 June 2014, the Minister's delegate refused the application on 16 June 2014. 4 The appellant applied on 14 July 2014 for merits review of the delegate's decision by the Tribunal, before which he appeared to present evidence and arguments on 7 April 2016. The Tribunal then affirmed the delegate's decision on 18 April 2016. 5 The appellant's application for judicial review by the Federal Circuit Court of the Tribunal's decision was filed on 13 May 2016. On 11 May 2018, this application was dismissed on the basis that the appellant did not establish any jurisdictional error in the Tribunal's decision. A notice of appeal was filed in this Court, with which this appeal is concerned. 6 The primary judge summarised at [4] of the reasons the appellant's claims for protection in his personal statement dated 6 February 2014, as follows: a) He was born in Chengdu City, China. b) He had received eight years of education in China and started working as a part-time construction worker after he had graduated from middle school and he married in May 1994. His wife and he had a son born in March 1996. He worked as a construction worker in China between 1984 and January 2014. c) Prior to September 2010 the Applicant could not find a stable job, drank a lot and fought a lot with his wife. d) In September 2010 he first learnt of Jesus Christ and he started to attend Christian family gatherings and to believe in Christianity. e) There is no religious freedom in China and he and his family were persecuted as they attended "underground gatherings". The only Christian congregation permitted in China is the "Three-Self Patriotic Church", which is controlled by the Chinese government and "never faithful to God". f) In 2011 his mother had a heart attack from which she recovered, and which recovery he attributed to Christianity. g) His wife and family began practising Christianity, and in April 2012 they attended a gathering of Christians at the family home of his friend Ming Chen, which was not permitted. Police came and arrested them and Ming Chen was detained for one month and fined RMB10,000 and the rest of the attendees, including the Applicant, were fined RMB5,000 and detained overnight. h) In February 2013 he started hosting Christian events in secret in his home. This was discovered by the police and in his absence they came and removed the Christian materials from his home and charged and detained his wife and fellow Christians. His wife was detained for three months and only released after the payment of RMB15,000. i) He sought to escape China via a tour group visiting Singapore and Malaysia in 2013, but was prevented from seeking asylum by the tour manager. He then found an agent and came to Australia on 31 January 2014. His wife remains in China, and asks for him not to return there. j) He will definitely be arrested if he goes back to China which is a one-party dictatorship, with no democracy and no freedom of religion or speech. 7 That is an accurate summary of the matters raised in the appellant's statement, which form part of his protection visa application. 8 The primary judge extracted at [11] of his reasons the main considerations of the evidence as evident from the Tribunal's decision record. These included the following findings: a) the Applicant had told the Tribunal hat he had only attended two house church meetings in China whereas in his Protection visa application he had suggested attending more than two and he had told the Delegate that he had attended around 10 house church meetings (see [42], [47] and [49] of the Decision Record); b) the Applicant told the Tribunal that he was not really interested in reading the Bible (see [26] and [47] of the Decision Record); c) the Applicant told the Tribunal that he did not know the differences between being a Protestant and a Catholic in terms of Christianity, whereas the Tribunal regarded those differences as significant in terms of unregistered religious organisations in China (see [48] and [53] of the Decision Record); d) the Applicant told the Tribunal that he did not know what baptism was and struggled to provide any explanation for the religious significance of Christmas and Easter to Christians (see [48] and [53] of the Decision Record); e) the Applicant, in his evidence to the Tribunal, did not indicate that he had any interest in Christianity other than to claim that he as a Christian and the Tribunal assessed that he had no real interest in Christianity and displayed no real knowledge of Christianity in terms of basic and fundamental Christian beliefs (see [53] of the Decision Record); and f) the Applicant did not have any difficulties travelling in and out of China when he went to Malaysia and Singapore or when he came to Australia and this suggested at the Applicant was not of any interest to the Chinese authorities and was inconsistent with the Applicant's suggestion that he would be a person of interest to the Chinese authorities (see [50] of the Decision Record). 9 The primary judge also described at [12]-[14]: (a) the Tribunal's consideration of country information relevant to the practice of religion in China; (b) the Tribunal's assessment of the appellant that he was neither credible nor truthful; and (c) the Tribunal's ultimate conclusion that it did not accept that the appellant faced a real chance of serious harm if he returned to China or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to China, he faced a real risk of significant harm. 10 In his application for judicial review filed on 13 May 2016, the appellant relied on the following three grounds, quoted without alteration: 1. The applicant's health at the time of the Tribunal hearing or at any other time was such as to constitute a ground for review of the decision. It should have noted in this respect that the applicant's state of health to the attention of the Tribunal in hearing an also drew attention to the hardships of life in the detention threaten. These conditions, the effect of detention on the applicant's family and his frail health provided some explanation for discrepancies, particularly because of an impact on his ability to concentrate. These matters establish grounds for review of the Tribunal decision. The applicant's description of his condition should have be considered and dealt with the Tribunal. The Tribunal was entitled to consider the applicant's explanation on that basis and it is clear that the Tribunal failed to consider these factors provided an explanation for the discrepancies in the various accounts given by the applicant. 2. The Tribunal was bound to enquire into the reasons behind the making of the threats in order to determine the applicant's claim properly. The Tribunal was obliged to act as an "inquisitor" and thus was bound to explore the applicant's claim that the applicant was a member of the underground Christian in China. His association with the underground Church was the main reason for his fear of persecution. In Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 536-537 where Gleeson CJ and McHugh J note that: "once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred on him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue …" The over arching principle thereby established imports the fundamental requirement that the Tribunal deal with cases individually on their merits and not on the basis of any pre-judgement about the merits of application, nor on the basis of any immutable general rule or policy. This fundamental requirement is an essential requirement of the Migration Act and a breach of it will vitiate a decision notwithstanding the privative clause. Accordingly, the decision of the Tribunal discloses pre-judgement the applicant is entitled to prerogative relief on the basis of a breach of an essential requirement of the Migration Act, in addition to the principal ground of actual bias establishing a lack of bona fides in the decision. 3. The Tribunal failed to apply all or any of the tests which a Tribunal could reasonably be expected to apply when examining a person's credibility. Such argument takes issue with the Tribunal's conclusion as to the knowing involvement of the applicant in the application for a protection visa based on his signature of the protection visa application form. It was suggested that any attack on the applicant's credibility was misconceived as, given the applicant's poor English, the Tribunal ought to have considered whether he really understood what was being submitted on his belief in the protection visa application made at a prior time. 11 The primary judge considered each of the three grounds of review at [16]-[39] of his reasons and found that none of them was indicative of jurisdictional error in the Tribunal's decision. 12 In relation to the first ground, the primary judge gave four reasons to conclude that there was no evidence upon which the Federal Circuit Court could conclude that the appellant was deprived of the opportunity to give evidence and make submissions in a meaningful way. 13 First, the appellant did not tender a copy of the transcript to the Tribunal hearing to establish that he had asserted to the Tribunal that he suffered from any adverse health problems. 14 Secondly, the appellant did not tender any medical evidence before the primary judge to the effect that a health condition adversely affected his ability to participate meaningfully in the Tribunal hearing. 15 Thirdly, the appellant did not identify the nature of any adverse health problem from which he was allegedly suffering at the time of the Tribunal hearing and did not explain the way in which such conditions denied him a meaningful opportunity to have his evidence assessed fairly by the Tribunal. 16 Fourthly, the Tribunal's decision record indicated that the appellant did apparently participate meaningfully in the Tribunal hearing and substantially responded to the questions and matters raised by the Tribunal. 17 With respect to the second ground, the primary judge understood the appellant to be making two contentions: that the Tribunal was bound to enquire and explore the appellant's claim, and that the Tribunal's decision was affected by pre-judgment and actual bias. 18 The first prong of the second ground was addressed by the primary judge in three ways. First, the Tribunal's findings appeared from the decision record to be responsive to the claims that were made by the appellant. Secondly, the alleged threats mentioned by the appellant were rejected following a proper consideration of country information in relation to the attitude of the Chinese government to the practice of Christianity and to house churches in particular. Thirdly, the Tribunal was not under any obligation to make enquiries on the appellant's behalf because its inquisitorial role did not extend to a duty to make the appellant's case for him and the appellant nevertheless did not identify the critical fact about which the Tribunal failed to enquire. 19 On the second prong of the second ground, the primary judge dealt with the authorities on actual basis before finding that there was no basis for the appellant's claim of prejudgment, which was also unsupported by the decision record and the evidence. For completeness, the primary judge also rejected the question of apprehended bias in connection with the Tribunal's decision. 20 The primary judge dealt with the third ground, which was also construed to contain two complaints: that the Tribunal failed to apply all tests relevant to the examination of a person's credibility; and that the Tribunal had wrongly concluded that the appellant was guilty of knowing involvement in wrongdoing associated with his protection visa application. 21 In relation to the first prong of the third ground, the primary judge took issue with the appellant's failure to identify the credibility test that the Tribunal had allegedly failed to apply and, in any event, considered that the Tribunal's reasons were not illogical, irrational, or legally unreasonable. 22 The primary judge then stated that the second prong of the third ground seemed to lack any real sense or meaning because nothing in the decision record or the evidence gave rise to any issue of claims having been made on behalf of the appellant by a third party of which he was unaware, and the claims made by the appellant at the Tribunal hearing were consistent with those made in his protection visa application. 23 The appellant's notice of appeal in this Court against the orders of the Federal Circuit Court raised three grounds of appeal, which were as follows: 1. The Tribunal was not professional, which caused that I could not provide enough evidence. 2. AAT denied all the evidences I provided without any consideration. 3. The staff's attitude was so bad, which caused me so nervous and state not to the point. 24 These were not grounds raised below. The question as to the circumstances in which new points not raised below is well settled. To the extent evidence is required that could have been adduced below, such grounds generally will not be allowed to be raised on appeal. But even if evidence is not required, such as questions of law or re-analysis of the facts before the primary judge without additional evidence, a claim may not be allowed to be run on appeal that was not run below. 25 As I said in BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 at [66]: Leave to argue a ground of appeal not raised below where an appellant had an opportunity to make such an argument below is only to be permitted where it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158 at 598 [46]; Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 at [19]-[20]; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [31]. Gilmour and Mortimer JJ emphasised in Maharjan at [33] that the merit of the proposed ground of appeal is an "important consideration", together with the question of prejudice to the respondent. In this case, it is the question of merit which is essential. 26 The first ground alleges that the Tribunal was not professional. The appellant has not particularised how that was the case or how any such unprofessionalism gave rise to a jurisdictional error. Further, the appellant has not provided any evidence, either before the Federal Circuit Court or this court, to substantiate that assertion. This ground cannot succeed. 27 The second ground alleges that the Tribunal denied all his evidence without any consideration. This allegation is contradicted by the Tribunal's decision record which demonstrates the Tribunal gave detailed consideration to the appellant's claims and evidence, and made dispositive findings that were apparently reasonably open to it. This ground cannot succeed. 28 The third ground alleges that the Tribunal staff were so bad that he became nervous and that affected his evidence. There is no evidence to substantiate this ground. Likewise, it is bound to fail. 29 For these reasons, if I were to permit the raising of these grounds, I would dismiss these grounds for these reasons. It seems to me that the grounds should not be permitted to be raised. Further, I see no apparent evidence of error in the careful reasons of the learned primary judge. 30 In these circumstances the appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.