FEDERAL COURT OF AUSTRALIA

BPV16 v Minister for Immigration and Border Protection [2018] FCA 1303

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    This is an application for an extension of time within which to file a notice of appeal from a decision of his Honour Judge Wilson, Q.C. of the Federal Circuit Court of Australia. Rule 36.03 of the Federal Court Rules 2011 (Cth) requires that a notice of appeal be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. Judgment here was pronounced on 5 February 2018. The applicant was one day late and, accordingly, has made an application to this Court for leave to file a notice of appeal out of time.

Background

2    The applicant is a young man from the People’s Republic of China. He arrived in Australia in 2006 on a student visa. He was granted a further visa which expired on 15 March 2008. The applicant did not then return to China, but stayed in Australia illegally. He was intercepted on 8 April 2015 during a roadside stop and was thereafter detained. On 6 May 2015, the applicant only then applied for a protection visa pursuant to s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). A delegate of the Minister for Immigration and Border Protection (the “Minister”) refused to grant this visa on 23 October 2015.

3    The basis for the applicant’s claim was that, whilst in Australia, he had become a follower of Yiguan Dao and that, if he were to be returned to China, he would be harmed by the authorities and unable to maintain his following. The Minister, however, did not consider the applicant to be a credible witness.

4    This decision was the subject of an application for review to the Administrative Appeals Tribunal (the “Tribunal”) where the applicant represented himself. He explained the basis of his fear to return to China in the following terms (set out in the Tribunal’s reasons at [27]):

… the applicant told the Tribunal that his religious beliefs are strictly persecuted by the government in China. He told the Tribunal that the friend who had introduced him to Yiguan Dao, Xu [Chang], had returned to China several years ago. In 2010, Xu Chang told the applicant by telephone that he regretted returning to China because Yiguan Dao followers were reported to authorities and detained, and he urged the applicant not to return. The applicant also said he has read news about the Chinese government’s persecution of Yiguan Dao. He told the Tribunal that the government of China will not allow anyone belonging to Yiguan Dao to be present in China. The applicant said he has not spoken with Xu Chang for about 2 years.

5    The Tribunal considered that evidence of the applicant. It also reviewed the applicable country information concerning the current attitude of the Chinese government to the practice of Yiguan Dao, which remained illegal in that country. For example, at [50], it examined certain information from the Canadian Immigration Review Board and said:

The Canadian Immigration Review Board in 2009 reported on the treatment of Yiguan Dao practitioners in China in these terms. In 30 November 2009 correspondence, an associate professor of sociology at the Center on Religion and Chinese Society at Purdue University stated that he is not aware of reports of ill-treatment of members of Yiguan Dao in China (30 Nov. 2009). The Professor of Chinese Studies offered the following general information:

Yiguan Dao like other technically illegal religious groups operate at best in an administrative grey area. Depending on local conditions, they may have to exist in total secrecy or they could openly run publicly accessible and visible premises. A lot depends on the political climate and attitudes prevailing among local, regional, and provincial authorities. There are areas of China, for example, where (again technically illegal) Protestant house churches operate openly without much interference from local authorities, while in other regions house church leaders may end up in labour camps. Yiguan Dao groups, generally speaking, are given less political leeway than Christian groups, though recently there have been signs that official attitudes toward Yiguan Dao are shifting towards a greater tolerance.

(Footnotes omitted.)

6    At [52] and [53], the Tribunal concluded:

Having regard to the country information, the Tribunal accepts that Yiguan Dao remains prohibited in China. However, the Tribunal also places weight on the absence of information regarding Chinese authorities targeting followers for Yiguan Dao.

Attached to the applicant’s post-hearing submission is a 2010 print out, together with an English translation. It contains historical information about the formation, rise and prohibiting of Yiguan Dao in China. It does not include information about any recent harming of followers of Yiguan Dao in China.

7    The Tribunal also found that the applicant lacked credibility, stating at [61]:

After reviewing all of the evidence before it, it is the Tribunal’s assessment that the applicant is an unreliable witness and this overall finding is a matter of central importance in the Tribunal’s determination of this application for protection. He did not provide convincing evidence of his following of Yiguan Dao. In particular, the Tribunal finds that the applicant was at best general in his evidence on matters which the Tribunal considers he would have been able to give clear and detailed evidence. For example, when asked about Yiguan Dao, the applicant gave the Tribunal a very brief history of how the practice of it came to be banned in China. This history was set out in an article provided by the applicant following the hearing. Also, the applicant was only able to provide information about the beliefs and practices of Yiguan Dao believers in very general and limited detail. And, he gave very superficial evidence about how he incorporated Yiguan Dao beliefs and principles in to his own everyday life. He mentioned praying; adhering to the principles of the ancestors, of which he could only recount 4; and donating to a charity. Further, he told the Tribunal that he was unable to locate a Yiguan Dao temple for him to worship at during the many years he has lived in Perth.

8    After taking into account all the evidence, together with a delay of around eight years in applying for a protection visa, the Tribunal affirmed the Minister’s decision. In that respect, the Tribunal relied upon a decision of Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 in support of the proposition that delay may be considered in assessing the genuineness of a claim.

9    Due to his lack of credibility, the Tribunal was not satisfied that the applicant is, or ever was, a committed Yiguan Dao follower. It rejected the claim that the applicant practiced the tenants of Yiguan Dao; instead, the Tribunal found that the claims had been fabricated for the purposes of securing a visa. In that respect, the Tribunal said at [71]-[74]:

Having regard to all the evidence, and in accordance with the principles laid down in the judgements cited in the preceding paragraphs, and for the reasons that follow, the Tribunal is not satisfied that the applicant is in fact a genuine follower of Yiguan Dao, but has rather advanced this claim for the purposes of securing a permanent visa to remain in Australia.

The Tribunal accepts that it is not the arbiter of religious doctrine as laid down in case law cited above. That said, the Tribunal found the applicant’s knowledge of basic Yiguan Dao facts appeared shallow and superficial, and not of the detail one might expect of someone who professes to have had an association with it for approximately 9 years. Despite being asked questions about Yiguan Dao as well as what the religion means to him and for his life, the applicant was only able to briefly describe that Yiguan Dao followers had been persecuted in China for many years and he gave a very general and unconvincing description of how he incorporates the beliefs and principles of the movement in to his everyday life. The applicant told the Tribunal that if you believe in Yiguan Dao you will have longevity, and it will change your life. He said that Yiguan Dao helps you live a righteous life and protects you from danger. He said that he prays to the major and minor Gods and, in living his life, tries to adhere to the principles of righteousness, intelligence, faithfulness and obedience. The Tribunal was not persuaded by this evidence of the applicant. He said he also helps others and donates to charity - Mission Australia - as a way of incorporating Yiguan Dao in to his life. While this is a noble gesture, many people donate to charities for many different reasons. The Tribunal does not consider that this practice indicates a genuine Yiguan Dao believer. The Tribunal is satisfied that the applicant has little knowledge and little genuine interest in Yiguan Dao, apart from an interest in how it might secure a permanent visa for him to stay in Australia.

Further doubt is added to the applicant’s claim by his evidence that he has not attended any spiritual place to practice Yiguan Dao; he has not associated with any other Yiguan Dao followers; and he has not attempted to persuade others to convert to Yiguan Dao, since he moved to Perth in 2009. Rather, it is his evidence that he practices his religion by himself, in his own home. The Tribunal does not consider this to be indicative of being a genuine follower of Yiguan Dao.

The applicant has also given inconsistent evidence and unpersuasive explanations as to when he learned the practice of Yiguan Dao was prohibited in China. The Tribunal considers that this casts doubt over the applicant's claimed fears about returning to China. The applicant did not persuade the Tribunal that he has ever engaged in any meaningful Yiguan Dao activity and nor did he persuade the Tribunal that he held any firm Yiguan Dao beliefs or that he was knowledgeable about the Yiguan Dao movement. On the basis of his evidence, the Tribunal does not accept that the applicant has been a Yiguan Dao follower in Australia or that he will practice Yiguan Dao or any other religion on return to China.

10    In reaching its conclusions concerning the applicant’s professed beliefs, the Tribunal also had regard to the following observation of Merkel J in Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 at [16]:

While the course pursued by the [Refugee Review Tribunal (the “RRT”)] may not have resulted in reviewable error under Part 8 of the Act, it is important to emphasise that, if the RRT is to fairly and justly discharge its important functions under the Act, it is critical that it:

•    be sensitive to the cultural, social and religious difference that exists in so many of the societies with which its cases are concerned;

•    does not arrive at or state its findings of fact on such issues with greater confidence than the circumstances of the particular case may warrant.

11    The Tribunal otherwise rejected claims that the applicant would be exposed to a real chance of persecution if returned to China because he has no close family in China and it would be difficult for him to subsist there as he has been away from China for so long.

12    It followed, after considering all of the claims, both individually and cumulatively, that the Tribunal decided that neither s 36(2)(a) or s 36(2)(aa) of the Act were satisfied.

Federal Circuit Court

13    The applicant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. His application was heard by his Honour Judge Wilson, Q.C. on 5 February 2018. His Honour dismissed the application. The applicant had appeared in person before his Honour.

14    The applicant did not set out the grounds of review in his application for review, but instead relied upon an affidavit which set out what appeared to be grounds. That affidavit is not before me. The learned primary judge said at [6]:

When speaking of “grounds”, the applicant did not enumerate his grounds of review in the application by which he commenced this proceeding. Instead, in an affidavit he swore on 23 June 2016 the applicant listed eight numbered paragraphs under a heading that read “Attachments to grounds of application orders sought by applicant”. In a section immediately thereunder, the applicant listed six further numbered paragraphs entitled “The grounds of the application are”. The Minister grouped the “grounds”. It was not strictly correct to call them grounds because none set out propositions of fact and law by which it was possible to distil a legitimate basis for contending that the Tribunal had fallen into jurisdictional error in the manner described in Craig v South Australia [(1995) 184 CLR 163] (“Craig”).

15    There were around 15 grounds of review before the learned primary judge. Under the first ground, the applicant stated that he did not agree with the decision of the Tribunal because the risk to him on account of his professed faith of Yiguan Dao had not been well considered. He asserted that his statement was ignored and he had been subject to bias. The learned primary judge decided there was no merit in ground one. His Honour found that it was only an expression of the applicant’s disagreement with the Tribunal’s decision.

16    The second ground was that the Tribunal had failed to consider his explanation of why his faith was critical to his life. Once again, the learned primary judge rejected this ground and considered it to be the same as that advanced under ground one, namely, an assertion that the Tribunal had failed to properly consider his contentions concerning his faith.

17    The third ground the applicant asserted was that the Tribunal failed to take into account, or failed to take serious account of, his written statement, resulting in his mental distress. The learned primary judge rejected this ground on the basis that the Tribunal gave active, intelligent consideration to the applicant’s claims, including those in his written statement.

18    The fourth ground was that the applicant asserted that the Tribunal had ignored his family background and that his family lives in Australia. He contended that the Tribunal’s decision was “cruel” and lacked “humanitarian concern”. Once again, the learned primary judge rejected with this ground. His Honour said that the Tribunal had devoted 89 paragraphs to providing a detailed examination of the entirety of the applicant’s claims. His Honour decided that the decision was “very far from cruel”.

19    In the fifth ground, the applicant disputed the country information that had been relied upon by the Tribunal. Once again, the learned primary judge rejected this ground on the basis that the Tribunal had not ignored critical country information. This ground was said to be “forlorn”.

20    The sixth ground before the Federal Circuit Court was an assertion that the Tribunal had failed to consider an aspect of the applicant’s claim, namely, that he was a single person. The learned primary judge rejected this ground on the basis that his Honour found the Tribunal had acknowledged that he was a single person.

21    The seventh ground was said by the learned primary judge to be difficult to follow. His Honour took him to mean by it that the state of affairs in China in relation to the adherence of Yiguan Dao had not changed markedly and that followers of that faith faced challenges. Once again, the primary judge rejected this ground as the Tribunal had been informed about the religious situation in China and made findings that were open to it to make.

22    The eighth ground was said to be that the Tribunal’s decision was “reckless” and “imprudent” by its alleged failure to give any weight to the applicant’s information as a whole. The primary judge rejected this ground and said that, “for reasons already explored”, the Tribunal gave proper, active, intellectual consideration of the whole of the applicant’s claims.

23    There were then six paragraphs in the affidavit, apparently headed “The grounds of the applicant are”. The learned primary judge addressed these grounds at [39]-[44], stating:

Paragraph 1 was factual, addressing the applicant’s involvement in Yiguan Dao. That was not a basis for entertaining an application for judicial review based on jurisdictional error.

In paragraph 2 the applicant stated there is no religious freedom in his country of origin. That was not a valid ground of review.

In paragraph 3 the applicant stated his family all resides in Australia. That was not a valid ground of review.

In paragraph 4 the applicant said his religion had no legal status. Not only was that not a valid ground of review, but to the extent that it was a springboard in the applicant’s claim for protection, the Tribunal already addressed it.

Paragraph 5 spoke of his fears and they have been addressed above.

Paragraph 6 was a recital about the applicant’s wish to live in Australia. That was not a valid ground of review.

24    The final ground for review was that the Tribunal was said to have been biased. The learned primary judge decided that such a claim must be firmly and distinctly made and clearly proven. No such claim, his Honour decided, was made in this case and none had been proved. His Honour went on to find that it could not be said in the alternative that this was a case of apprehended bias and, in that respect, referred to the decisions of VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 and WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286. His Honour decided that any assertion that the Tribunal was biased was untenable and should be dismissed.

Appeal

25    The applicant has now applied to this Court for an extension of time within which to file a draft notice of appeal. The draft notice of appeal is before me and pleaded the following proposed grounds of review (errors in the original):

1.     RRT and Federal Circuit Court failed to Consider my explanation and supporting documents to support my appeal, which I believe it is a legal error

2.    I am a Chinese citizen and Yi Guan Dao faith who will be facing persecution by Chinese government due to believes

3.    I cannot go back to China since I am very scared to be sentenced and discriminated.

4.    RRT member and the Federal court did not well consider of my fears and persecution if return to my home country

26    The Minister submitted that grounds two and three were new, and required leave of this Court to be relied upon. The applicant had also filed and served an affidavit deposing his claims that he was late because of “financial hardship” and difficulty “in filling out all the forms” due to his “limited English”.

27    The Minister conceded in written submissions he would suffer no material prejudice if I were to extend time. He submitted that the extension should, however, be refused because the decision below is not attended by sufficient doubt and the explanation for delay is inadequate.

28    The principles relating to the exercise of this Court’s discretion to extend time are well established. In exercising the Court’s discretion in an application for an extension of time, factors to take into account are the extent of the delay, any prejudice the respondent might suffer because of the delay, the explanation for the delay and the merits of the proposed appeal: Singh v Minister for Immigration and Border Protection [2017] FCA 150 at [19]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

29    In relation to the explanation of delay, there is some force in the Minister’s complaint that it is not sufficient. The applicant’s affidavit pointed to financial hardship, but provided no evidence to identify what that hardship was or why it had prevented him from filing a notice of appeal the day before he filed his application for an extension of time. His explanation that he needed help filling out the form due to his limited English is more credible and an understandable excuse. In light of the fact that the delay was only one day, I would not refuse an application for an extension of time on this ground only.

30    I am, however, more troubled by the merits of his claim. On the one hand, it is difficult to assess the merits of his legal grounds in the absence of the affidavit relied upon below before his Honour Judge Wilson Q.C. I have before me, and with respect to the learned primary judge, sometimes only spartan descriptions of the grounds invoked. However, I have to assess in an impressionistic way, on the material before me, the applicant’s prospects of success: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]-[66]. That includes what is said in the proposed notice of appeal. Taking into account both the applicant’s limited English skills and the fact that he is not represented before me, I am nonetheless satisfied that any appeal would be futile.

31    One commences with the decision of the Tribunal. It is not contended that it applied the wrong legal tests for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act. Instead, it made findings which were open to it about the applicant’s credit. It found that he had fabricated his professed following of Yiguan Dao. It also had proper regard to country information in order to assess the risk to the applicant. It is, of course, true that a finding concerning the creditworthiness of an applicant is not necessarily one that is immune from judicial review for the presence of jurisdictional error. As Robertson J observed in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [78]:

It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

Having said that, the general rule is that it is open to the Tribunal to assess the credit of the applicant and then, in light of that assessment, consider what weight should be given to the applicant’s evidence: see Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485. This the Tribunal did here. As the Full Court of this Court recently said in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 at [30]:

The relevant principles can be summarised as follows.

(1)     While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

135.     … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(Emphasis added)

(3)     By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4)     Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

(citations omitted)

(5)     A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

32    Here, there is no contention that the findings made about the applicant’s credit worthiness were legally unreasonable or made without a logical, rational or probative basis. Turning to the proposed grounds and the notice of appeal, I make these observations:

(1)    Ground one could not be made out. It could not be said that the Tribunal “failed to consider” the applicant’s explanation and supporting documents.

(2)    Ground two pleads that the applicant is a follower of Yiguan Dao. However, the Tribunal found as a fact that he was not.

(3)    Ground three is premised on the same mistaken foundation.

(4)    Ground four alleges that the Tribunal and the Federal Circuit Court did not “well consider” the applicant’s fears of persecution if returned to China. This is the same ground in substance as ground one below. It was correctly rejected by the learned primary judge at [22]-[26] of the reasons below.

33    For these reasons, in my respectful view, the proposed notice of appeal does not raise grounds of review that have sufficient prospects of success to justify an extension of time within which to file a notice of appeal. The application for an extension of time is, accordingly, dismissed

Associate:

Dated:    24 September 2018