FEDERAL COURT OF AUSTRALIA

CAW15 v Minister for Immigration and Border Protection [2016] FCA 930

ORDERS

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

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.

Discussion

4    I turn first to explain the relevant legal principles which attend this application. Those principles are well established and are set out in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 and 399. The test for granting leave to appeal from an interlocutory judgment comprises two questions:

(1)    Whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered on an appeal; and,

(2)    Whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

5    I turn then to consider whether the judgment of the primary judge is attended with sufficient doubt to warrant its reconsideration on appeal. The task of the primary judge was to judicially review the decision of the Tribunal by reference to the grounds of review raised by the applicant. The reasons of the primary judge show that the grounds raised by the applicant were considered. At [49] of those reasons the primary judge concluded that the applicant had not identified any jurisdictional error on the part of the Tribunal and that no jurisdictional error was apparent on the face of the decision record. Her Honour further concluded that no arguable case for relief had been made and that, accordingly, it was appropriate to exercise the court’s discretion under r 44.12(1) of the FCC rules.

6    The applicant’s application for leave to appeal raises three grounds of application. I will treat each of those grounds as the grounds that the applicant would pursue if leave to appeal was granted. I will treat those grounds as if they were grounds in a draft notice of appeal. The Minister contends that the draft grounds would raise new grounds not agitated before the primary judge and for which leave would be required. The grounds raised are as follows (as stated and uncorrected):

1.    AAT underestimated my risk of being persecuted by the Chinese authority.

2.    AAT did not examine the risk of the persecution I will face if returned to China.

3.    AAT has bias against me as I was deprived of the benefits of doubts.

7    Having examined the grounds of the judicial review application raised before the primary judge, I accept that draft ground 3, dealing with bias, was not raised before the primary judge. I consider, however, that draft ground 1 is largely consistent with ground 1 raised before the primary judge and that draft ground 2 is largely consistent with ground 3 before the primary judge.

8    I will turn to consider draft grounds 1 and 2 first. I will treat draft grounds 1 and 2 as asserting that the primary judge failed to identify jurisdictional error in the decision of the Tribunal because the Tribunal failed to examine or alternatively, underestimated the applicant’s risk of persecution in China. No particulars have been given by the applicant in support of those draft grounds.

9    The applicant did appear before me this morning. He was not legally represented but was assisted by an interpreter. The nature of his application was explained to him, and he was asked whether he had any submissions to make in relation to each of the grounds that he has raised. The applicant did not take up the invitation to make submissions other than to say, in a very general way, that people living in Australia do not understand the circumstances existing in China. He said that there are many unfair things that go on in China and that they are unimaginable to people living in Australia. He concluded by saying that he would respect any decision made by Australian authorities.

10    A fair reading of the reasons of decision of the Tribunal does not support the proposition that the Tribunal either failed to examine or, alternatively, underestimated the applicant’s risk of persecution in China.

11    The applicant’s candid account of his circumstances clearly justified the conclusions reached by the Tribunal that there was no well-founded fear that the applicant would be persecuted should he be returned to China. The Tribunal’s reasons are commendably concise. They demonstrate that the Tribunal examined the applicant’s risk of persecution. Those reasons do not suggest to me that that risk was underestimated or otherwise not properly assessed. The primary judge reached the same conclusion. Her Honour’s judgment is not attended with sufficient doubt to warrant it being reconsidered on the basis of draft grounds 1 and 2.

12    As I said earlier, draft ground 3 is new and would therefore require the Court’s leave to be raised on any appeal. Leave ought not be granted unless it is expedient in the interests of justice to do so. In the absence of some merit in the proposed ground, leave should be rejected. For the reasons largely given by the Minister in the outline of submission filed, there is no merit in draft ground 3. As the Minister submitted, no meaningful particulars were provided in support of draft ground 3.

13    An allegation of bias is a serious allegation that must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 69.

14    It is a rare case in which a court will find that a decision-maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision-maker’s reasons: VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668 at [38]. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons: SCAA at [38]. Further, as the Minister’s submission said, there is no legal principle which requires the Tribunal to give an applicant the benefit of the doubt: SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1641 at [10]–[11]. Nor is the Tribunal under any obligation to uncritically accept any and all allegations made by an applicant: Randhawa v Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

15    The applicant has not raised anything that would support an allegation of bias. The reasons of the Tribunal do not support any such suggestion. There is no merit in draft ground 3. It fails to provide any basis for thinking that the primary judge’s decision is attended with sufficient doubt to warrant it being reconsidered.

16    The first limb of the Decor test is not, therefore, established.

17    Even if I had been satisfied that substantial injustice would result if leave were refused, the applicant’s failure on the first limb of the Decor test means that the applicant’s application for leave to appeal must be dismissed. I should also order that the applicant pay the Minister’s costs of the application.

Associate:

Dated:    12 August 2016