FEDERAL COURT OF AUSTRALIA

DLG16 v Minister for Immigration and Border Protection [2018] FCA 641

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 6 July 2017, dismissing an application by the appellant for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa. The decision of the Tribunal was dated 24 October 2016. The appellant’s application in the Federal Circuit Court was dated 16 November 2016. The Federal Circuit Court judge recorded that there were no written submissions placed before him, although there were submissions made from the bar table. The notice of appeal that was filed in this court was dated 19 July 2017. Directions were made in August 2017 for the provision of written submissions. None have been filed. The appellant is unrepresented. From the bar table today, she indicated that she has no relatives here, that she has experienced a lot while here, and is not very healthy.

2    The broad nature of the appellant's claims are as follows. The appellant is a citizen of the People’s Republic of China who was born in February 1983. She arrived in Australia in May 2013 as the holder of a student visa and, approximately one year later, applied for a protection visa. She made various claims in support of the protection visa which were summarised by the Tribunal in [10] of its reasons:

The applicant is from Shenyang City, Liaoning Province, China and was born on 27 February 1973. The following is a summary of the claims and information provided in the written application:

a.    She operated her own woodwork business in China. She worked on a project for the Secretary of the Mayor. He promised he would pay her RMB 30,000 when she finished the project. However he did not pay her and she was unable to continue to run her business. She approached him a number of ways including a letter to the complaints office but did not receive any responses.

b.    She is a Christian. He told the police that she held home gathering activities as a result of which she had to leave.

c.    She lost her business, her family has been threatened she was detained and questioned because of her religion.

d.    From 2005 until 2011 she lived in France and was granted protection by the French government. When her mother was ill in 2011 she returned to China to look after her. She was told by the French government that she would lose her protection visa if she left France. She went home in 2011 she suffered a lot and cannot go back again.

e.    The Secretary of the Mayor was concerned that she would continue to complain so he found some gangsters to threaten her family. She once again had to leave China and went to Japan to seek protection there. However because the Japanese do not like Chinese she came to Australia. She believes that because the Secretary of the Mayor is a very powerful person and knows other powerful people including officers. Rich people and gangsters that the authorities will not protect her if she returns.

3    In January 2015, a delegate of the Minister refused to grant the appellant the visa. The Tribunal's jurisdiction to review that decision was invoked by the appellant. The Tribunal affirmed the decision of the delegate. In doing so, the Tribunal examined the material placed before it by the appellant and was unwilling to accept the accuracy or credibility of the claims of the appellant. It is unnecessary for me to describe in detail the concerns that are reflected at [15]-[58] of the Tribunal’s reasons.

4    I have read the Tribunal's reasons with some care. The fact that the Tribunal reaches the view it does on credibility issues does not protect the decision from critical scrutiny if those credibility findings are based on an approach which lacks a rational foundation or unreasonably refuses to engage with the purport of material before it. I am unable to see, however, that any such difficulty infects the reasoning of the Tribunal in this case.

5    The Tribunal was first concerned that there had been a delay of 12 months from arriving in Australia prior to applying for a protection visa. This concern led to the appellant being asked about the delay. The Tribunal records that the appellant indicated that she was not aware of the possibility of making the application. The Tribunal had difficulty in accepting this, given that the appellant had previously applied for protection in France and had been granted protection in France, though had left France, giving up that protection

6    The Tribunal then discussed its investigation of the appellant's claims for protection by reason of Christianity. The Tribunal accepted that the appellant had been baptised in Australia and had attended church services in Australia, but was not satisfied about her beliefs and her experience and knowledge of Christianity. There were various difficulties in relation to this set out in particular from [35]-[45] of the decision record.

7    Importantly, the Tribunal was not satisfied that the appellant would practice Christianity on her return to China. The Tribunal then dealt with the question of the appellant's claim to have travelled to Japan. The appellant explained that she had not sought protection in Japan because of historical conflict between Japan and China. The Tribunal did not accept that explanation and considered that if the appellant had genuinely felt at risk in China, she would have sought protection in Japan. There were other aspects to the material and information that the appellant put to the Tribunal concerning the domestic violence of her first marriage and difficulties the appellant had been facing in her business as a result of a dispute with a former client. These matters were referred to in sub-paragraphs (a), (c) and (e) of the Tribunal’s summary of claims to which I have already referred.

8    The primary judge in the Circuit Court in his reasons rejected any error as broadly asserted in the application for review. The matters that were raised in the application for review were as follows:

Orders sought by Applicant

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 China and Australia.

2, AAT 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 due to my commitment of paralyzing [sic] if I return to origin.

4, AAT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

The Grounds of the Application are:

1, I am a Chinese citizen and have faithful and committed Christian faith. I have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.

2, I have been actively involved in church actives. AAT even suspect my church activities in China which is totally not fair.

3, AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

4, AAT should grant my review application and the member has strong prejudice to me.

9    The paragraphs were characterised broadly by the primary judge as a contest with the merits of the decision. I do not propose to set out the paragraphs of his Honour's reasoning about this but it should be noted that any argument as to the legal unreasonableness of the Tribunal's reasons requires an attendance to and consideration of the factual and reasoning analysis to reach the conclusion that the Tribunal did. This is not merits review. It is reviewing the process of reasoning and fact-finding of a decision-maker to assess whether their conclusion is legally unreasonable within the meaning of that phrase as expounded by authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1.

10    There was also an assertion that the Tribunal was biased. From the reasoning of the Tribunal, I am not able to come to any view that would support such an assertion. That said, it should always be recognised that the way a Tribunal deals with the evidence and material put before it, including the form of its reasons, may lead to a conclusion of apprehended bias. See, for example, the case of NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264.

11    The grounds of appeal in the notice of appeal state the following:

1.    AAT doubted what I said totally even the statement provided by me.

2.    AAT has denied me procedural fairness by failing to provide adequate reasons for the finding of fact.

3.    AAT did not face the risk of persecution if I come back to China.

12    The first ground is a challenge to the rejection of the appellant by the Tribunal as a reliable provider of information in that adverse findings of credibility have been made against her. I have already indicated that I do not read the reasons of the Tribunal as disclosing any unreasonable or irrational approach to how the appellant's evidence should be dealt with. I am not in a position to believe or disbelieve the appellant and she should not think that that conclusion comes from me. But the Tribunal is charged with the responsibility of assessing the material placed before it by persons such as the appellant, and, as I have said, I am not able to identify any irrational or unreasonable approach to that.

13    As to the question of procedural fairness by reasons of inadequate reasons, leaving aside the question of whether inadequate reasons are capable of amounting to a denial of procedural fairness, the reasons of the Tribunal were, in my view, adequate to explain its lack of satisfaction.

14    The third ground is that there was a failure to engage, effectively, with the notion of risk of persecution in China. The reason that I do not accept this ground can be taken from the engagement with this topic at [49]-[58] of the Tribunal's reasons. I do not set these matters out but, upon a reading of those paragraphs, one sees the Tribunal’s consideration of the claim and application of the Convention to the facts as found. And I do not see that there has been any inadequate engagement with the notion of a real risk of serious or significant harm and a real chance of same.

15    In this case, there was a certificate issued under s 438 of the Migration Act 1958 (Cth). The certificate is before me. The certificate was not discussed with the appellant and the appellant did not have an opportunity to deal with the material. That raised the question that has now been settled by the Full Court of the Federal Court of Australia. I refer to the cases of Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, CQZ15 v Minister for Immigration and Border Protection [2017] FCAFC 194, Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198. The certificate dealt with the identity of the appellant. The primary judge came to the view that this could not have led to any practical injustice in this case, because the identity of the appellant was not in issue.

16    The gravamen of the Full Court decisions to which I have referred was correctly distilled by the primary judge. There can be no jurisdictional error here, in circumstances where the document not shown to the appellant had and could have had no bearing whatsoever on the rejection of her claims, because her identity was never in issue.

17    For the above reasons, the orders of the court are that the appeal should be dismissed. There is no apparent reason why an order for costs should not follow the event. Therefore, the orders of the court are that the appeal be dismissed with costs.

Associate:

Dated:    8 May 2018