CAW15 v Minister for Immigration and Border Protection

1. The Applicant's application for leave to appeal be dismissed.
2. The Applicant pay the First Respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The applicant seeks to appeal the judgment of a judge of the Federal Circuit Court of Australia (the primary judge), whose reasons for judgment are published as CAW15 v Minister for Immigration and Border Protection [2016] FCCA 781. The primary judge dismissed the applicant's application for judicial review of the decision of the second respondent (the Tribunal) to affirm a decision refusing the applicant a Protection (Class XA) visa. 2 The application before the primary judge was dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). As r 44.12(2) of those rules states, the order dismissing the application was interlocutory. Accordingly, the applicant requires leave to file an appeal from that interlocutory order by reason of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 3 The relevant background and a summary of the Tribunal's reasons for decision are helpfully set out in the outline of submission of the first respondent (the Minister) at [5]-[14] (references omitted): Background and the applicant's claims [5] The relevant background and the applicant's claims were accurately summarised by the Federal Circuit Court Judge. In summary, the applicant is a citizen of China who lodged a Protection visa application on 24 January 2014 and in a written statement provided with his visa application he outlined a number of claims to fear harm in China. [6] The applicant claimed he and his family practised Christianity and attended unregistered Church gatherings. He claimed his parents and grandparents were Christians, he attended church gatherings at their home and was baptised on 24 December 2005 at a friend's house in China. He claimed his father was arrested on 8 May 2004 for attending a gathering and was released on a warning. On 5 March 2006, his father was arrested again for holding a gathering at his home and was detained for three months and had to undergo labour reform. His mother had to borrow 10,000 Yuan to pay his father's fine and his father had to report to police monthly. The police also conducted random home checks. The applicant's father left for Italy in October 2006, which angered the police. The applicant claimed his parents sent him to Australia to study so he would not live in fear. When his visa expired he thought about returning to China but his parents did not want him to return and his mother told him they had been caught at another gathering in December 2013. [7] The applicant attended an interview before a delegate of the first respondent on 23 June 2014 and on 16 December 2013, the delegate made a decision refusing to grant the applicant a Protection visa. The delegate found the applicant displayed limited knowledge of Christianity at the interview and found other aspects of his evidence difficult to accept and implausible. The delegate did not accept the applicant was a devout and practising Christian. Nor did the delegate accept the applicant's reasons for his four year delay in lodging his Protection visa application. The delegate found the applicant was not a Christian and was therefore not satisfied that he faced a real chance of serious or significant harm in China. The Tribunal [8] On 13 January 2015, the applicant lodged an application for review of the delegate's decision. He gave the Tribunal a copy of the delegate's decision, which set out his evidence at the interview. [9] The applicant attended a hearing before the Tribunal at which the Tribunal explored his claims in detail and put to him the various concerns it had with his evidence. The Tribunal's summary of the applicant's evidence recorded that: a. The applicant said he had no idea whether he was a Christian and he no longer attended church. He did not pray to God or practice in any other way and was not likely to practice Christianity or participate in Church gatherings if he returned to China. b. The applicant did not report any harm to himself in China and was never detained but was warned by police two or three times but never hurt. c. The applicant's evidence about the claims in his written statement about his father's arrest and mistreatment contained an inconsistency and failed to repeat certain aspects. d. The applicant did not report any problems for his mother since 2006 and confirmed that she attended a registered church and no longer participated in private unregistered church gatherings. The applicant also confirmed that his father had obtained residency in Italy and returned to China, remained for one month and was able to depart without any difficulties. The applicant's brother was not a Christian and the applicant reported no problems for him in China. e. The applicant was "unable to articulate ... any fear for himself personally, rather his family was concerned about his situation". He said he felt the current situation in China was getting better; did not think he would secure permanent residency in Australia and "was just following the procedure in respect of his application for his parents". f. The applicant was most concerned that his information about his Protection visa application would be leaked to the Chinese government. He had heard that two or three years ago an Australian government website was hacked and information leaked to the Chinese government. [10] In a decision dated 16 September 2015, the Tribunal affirmed the delegate's decision to refuse the applicant a Protection visa. The Tribunal accepted the applicant's evidence about his lack of Christian practice and belief and found he demonstrated "minimal and even incorrect knowledge" of Christian beliefs and the Bible, which was "(c)ommensurate with his evidence as to his lack of active engagement and involvements with the Christian religion". Accordingly, the Tribunal did not accept that the applicant had "ever had any firm and committed adherence to Christian beliefs" and found he would not practice in the future. [11] Despite accepting some of the applicant's claims about his parents' practice of Christianity and that it resulted in his father being detained, the Tribunal noted that the applicant did not report that he had suffered any harm himself other than a stern warning from the police. It also found the applicant did not suffer any past harm due to his or his parent's Christianity or conducting unregistered church gatherings. [12] The Tribunal accepted the applicant's evidence that his mother and brother continued to live in China without incident and there was no evidence of any harm since 2006. It accepted his evidence that his mother no longer participated in unregistered church gatherings and had practised her Christian faith and attended a registered church since 2006 without incident. It found this experience was consistent with independent information (a 2015 DFAT report) about religious freedom in China. The Tribunal also accepted the applicant's evidence about his father's return visit to China, as well as his evidence that he would not participate in unregistered church Christian gatherings if he returned to China. On this basis the Tribunal found the applicant did not face a real chance of serious harm for his or his parent's Christianity or conducting unregistered church gatherings. [13] The Tribunal clarified the nature of the applicant's concern that information about his claim for protection might be leaked but did not accept that the inadvertent publication of information on the Department's website in February 2014 had any relevant application to the applicant's circumstances. It found there was only a remote possibility, and therefore not a real chance, that the applicant's Protection visa details would be inadvertently published by the Australian government or accessed by someone in China. [14] For these reasons, the Tribunal was not satisfied that the applicant satisfied either the refugee or complementary protection criteria.