SZRKJ v Minister for Immigration

[2016] FCCA 1835

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRKJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1835

Catchwords:

MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicants a Protection (Class XA) visa – whether findings Tribunal made were reasonably open to it for the reasons it gave – whether Tribunal made jurisdictional error by not agreeing to applicants’ request that the Tribunal take evidence from persons specified by applicants – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 48A, 424A

Cases cited:

AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
SZRAG v Minister for Immigration and Border Protection [2016] FCA 189
SZRSX v Minister for Immigration & Anor [2016] FCCA 622
SZVCH v Minister for Immigration & Anor [2015] FCCA 2950

Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 297

First Applicant: SZRKJ

Second Applicant: SZRKK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 38 of 2015

Judgment of: Judge Manousaridis

Hearing date: 2 June 2016

Delivered at: Sydney

Delivered on: 22 July 2016

REPRESENTATION

The first applicant appeared in person, and on behalf of the second applicant,

assisted by an interpreter

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 38 of 2015

SZRKJ

First Applicant

SZRKK

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of the People’s Republic of China (China). On 3 November 2011 they both applied for a Protection (Class XA) visa (Protection visa). A delegate of the first respondent (Minister) refused that application and, on 22 March 2012, the second respondent (Tribunal) affirmed the delegate’s decision. The applicants then unsuccessfully applied to this Court for judicial review of the Tribunal’s decision, and also sought Ministerial intervention.

2. On 19 September 2013, after the Full Federal Court delivered its decision in SZGIZ v Minister for Immigration and Citizenship,[1] the applicants lodged a second application for a Protection visa. The first applicant claimed harm would befall him if he were returned to China because he was a Christian, and also because the Department of Immigration and Border Protection (Department) had disclosed confidential information about the applicant. The second applicant did not make any claim on her behalf.

   [1] [2013] FCAFC 71 (Allsop CJ, Buchanan and Griffiths JJ)

3. On 12 May 2014 a delegate of the Minister rejected the application for a Protection visa, and on 4 December 2014 the Tribunal affirmed the delegate’s decision. The applicants now apply for judicial review of the Tribunal’s decision. Although the second applicant did not make any claim for protection in the application she and the first applicant lodged, she did make her own claim for protection before the Tribunal.

Claims for Protection

1. The first applicant set out his claims for protection in a document titled “Personal Statements of Claims” that accompanied the application for a Protection visa (Statement).[2] In that statement, the first applicant claims he is a Christian who never ceased practising Christianity and remains committed to the Sunday service, bible study and other church-related activities. He always carries Gospel related materials with him such as pamphlets, booklets and flyers, and distributes them to his non-Christian friends and to strangers on the street or on the train. The first applicant goes to Church on Sundays with his wife and daughters; attends bible study on Tuesday nights; invites people to attend evangelical conferences “every now and then”; and hands out Christianity related books, magazine and booklets to pedestrians. The applicant claimed these acts have “become an unalienable [sic] part of my life, which draws me more closer to God and in turn, brings me joy, happiness and peace”.

   [2] CB73-90

2. The first applicant claimed these activities, if carried out in China, would invite persecution, and he would face significant harm including arbitrary arrest, lengthy imprisonment, fines, and physical or psychological torture. Relying on country information, the first applicant claimed that Christians are required to conduct their religious practice in Government-sanctioned churches; that evangelists are not allowed to enter China, let alone hold evangelical events; that the outreach program is forbidden in China and the giving of Christian materials to soldiers, public servants, teachers, and children is a criminal offence; and, that efforts have been made to disband underground churches and break large household churches into small groups resulting in many underground church members being arrested and sentenced.

3. The first applicant also claimed to fear harm in China because of the Department’s privacy breach in which “10,000 asylum seekers’ particulars such as full names, nationalities and dates of their applications for refugee status were inadvertently published on the Immigration website”. The first applicant referred to a number of online articles accessed on the Sydney Morning Herald website and claimed Chinese authorities may have accessed the immigration website and obtained the first applicant’s personal details including his name, date of birth, nationality, gender and details about his previous detention which the first applicant claimed would have serious implications on his safety and the safety of his family if he and the second applicant were returned to China. The first applicant claimed China has extensive spy networks in Australia who monitor Chinese nationals and that he has been put at high risk of suffering future harm.

Before the Tribunal

1. The applicants appeared before the Tribunal on 3 November 2014 and 3 December 2014 to give evidence and present arguments. They had also given evidence on 18 September 2014 to the Tribunal in relation to an application for protection that had been lodged on behalf of their daughter.[3] In a letter dated 6 November 2014, evidently sent pursuant to s.424A of the Act, the Tribunal identified what the Tribunal stated to be inconsistent evidence given by the applicants. The inconsistencies included the following:

   a)At the hearing on 18 September 2014, the first applicant said he only evangelised on the train whereas in his Statement the first applicant said he hands out Christianity-related books, magazines or booklets to pedestrians in the street and on the train.[4]

   b)At the hearing on 18 September 2014, the first applicant said that he hands out pamphlets to strangers on the train once a week when travelling to church on Sunday mornings, and that he does this when the second applicant is with him.[5] At the same hearing, however, the second applicant said that the family drives to church on Sunday, and that she was not aware of the first applicant publicly evangelising.[6]

   [3] CB163

   [4] CB165, [16]

   [5] CB165, [18]

   [6] CB166, [19]

2. The first applicant acknowledged to the Tribunal that in his first application for a Protection visa he had made up some of the stories and exaggerated others. He said, however, he could not remember which parts of what he had told the previously constituted Tribunal was incorrect or false. He said he had been under a lot of pressure, but now he did not want to lie.[7] The second applicant also acknowledged she and the first applicant had previously lied, but they were not lying any more.[8]

   [7] CB225, [34]

   [8] CB225, [34]

3. The first and second applicants claimed they feared harm from Buddhists. The first applicant said that in his area Buddhists outnumbered Christians, and, when he was little, the applicant saw people being arrested.[9] The second applicant also referred to fearing Buddhists.[10]

   [9] CB225, [35]

   [10] CB225, [35]

4. The first applicant claimed he was involved in Christian activities in China before he came to Australia, and that he had been detained for a few days when he was approximately ten years old.[11] The first applicant claimed the second applicant may be seriously harmed if she were to return to China because she may be forced to be sterilised and the procedure is not hygienic. The first applicant referred to his mother having been sterilised and that she still suffers abdominal pain.[12]

   [11] CB227, [39]

   [12] CB228, [46]

5. The applicants claimed the second applicant would be subjected to forced sterilisation because she breached China’s family planning laws by having two children out of wedlock.[13] The second applicant also claimed she and the first applicant would be unable to find employment in Fujian.[14]

   [13] CB228, [46]

   [14] CB230, [53]

The Tribunal’s decision

1. The Tribunal referred to the applicants having previously applied for a Protection visa, applied the reasoning in SZGIZ and found it did not have power to consider the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Act).[15]

   [15] CB216, [10]

2. The Tribunal did not find persuasive the applicants’ explanation for their having previously lied to the differently constituted Tribunal. It considered “that the previous fabrications significantly undermine the applicants’ credibility.[16] Nor was the Tribunal satisfied there is a real risk the applicants would be harmed by Buddhists in China because of their Christianity.[17] Further, the Tribunal did not accept that either of the applicants is involved in public evangelism, or that they would be involved in public evangelism if they were to return to China. It did not accept, therefore, there is a real risk the applicants would be harmed because of evangelism activities.[18]

   [16] CB225, [34]

   [17] CB226, [35]

   [18] CB227, [38]

3. The Tribunal accepted that the applicants attended Christian services in Australia, hold genuine Christian beliefs and that if the applicants were to return to China they would wish to practise their Christian beliefs by attending an underground church.[19] The Tribunal found, however, there are large numbers of independent house churches in Fujian Province, that “local government seems fairly tolerant of unregistered believers”, and that “the weight of available independent information indicates that official religious policy has been applied relatively liberally in Fujian and there is nothing before the Tribunal to indicate that the situation is different in the applicant’s specific area”.[20]

   [19] CB227, [41]

   [20] CB228, [42]

4. The Tribunal then turned to consider the data breach claims made by the applicants. The Tribunal found there was no evidence to suggest the first applicant’s details were released by the Department and found the chance of this occurring to be remote. The Tribunal so found because the first applicant was not in detention on 31 January 2014 and the information before it suggests the data breach only related to those persons who were in detention on 31 January 2014.

5. The Tribunal next considered the applicants’ family planning claims. The Tribunal accepted there are examples of forced abortions and sterilisations occurring in Fujian; but, relying on country information, it did not accept that the practise is widespread, or that there is a real risk of the second applicant being forced to undergo sterilisation given Fujian’s large population. The Tribunal also referred to country information to the effect that compulsory abortions and sterilisations are illegal under Chinese law, and are far less common than in the past. While the Tribunal was willing to accept the first applicant’s mother may have been subjected to sterilisation, it did not accept this reflected on the likelihood that the second applicant would be subjected to forced sterilisation if she were to return to China now or in the reasonably foreseeable future.[21]

   [21] CB229-230, [47]-[52]

6. Finally, the Tribunal considered the second applicant’s claim that she and the first applicant would be unable to find employment in Fujian. The Tribunal was not satisfied the applicants would be unable to find employment in China or that there is a real risk of harm to them as a result of any difficulties obtaining employment.[22]

   [22] CB230-231, [53]-[54]

7. Based on these findings, the Tribunal concluded it was not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm.[23] Further, although the Tribunal was of the view it had no jurisdiction to determine whether the applicants satisfied the criteria provided for in s.36(2)(a) of the Act, the Tribunal considered whether, if it did have jurisdiction, the applicants were “refugees” within the meaning of Art.1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The Tribunal concluded it was not satisfied either applicant was a “refugee”.[24]

   [23] CB231, [55]

   [24] CB231, [58]

Hearing of judicial review application

1. The applicants are not legally represented. The first applicant, but not the second applicant, appeared at the hearing before me. The first applicant informed me that he had the second applicant’s authority to speak on her behalf.

Grounds of application

1. The application contains three grounds of application. The first is:

   The Delegate of the Minister (the First Respondent) failed to make proper facts findings and relied on incorrect evidence, collected by the Department of Foreign affairs and Trade, in relating to the persecution on the members of underground Christian Churches in FuQing.

2. The first applicant made no submission in relation to this ground. The first applicant said he cannot read English, so he did not know how to explain the ground. He also said he did not have a lawyer to help him. I do not accept the first applicant’s inability to speak English to be a valid reason for his not being able to make any submissions in relation to ground 1. The applicant had at his disposal an interpreter.

3. The ground, as stated in the application, does not disclose any jurisdictional error. The ground takes issue with the country information on which the Tribunal relied for concluding there was nothing to indicate that the applicants would suffer harm because they are Christians who intended to practice their faith through an underground church.  It was for the Tribunal to determine what country information it should consult, and the weight it should accord such information.[25] It was reasonably open to the Tribunal to conclude as it did on the basis of the country information it considered.

   [25] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7]

4. The second ground of application is:

   The Tribunal denied crucial evidence pertaining to the prevalence of forcible sterilization and abortion in FuQing [sic], which constituted a judicial error for failing to comply with the s422B(3) of the Migration Act, 1958.

5. I asked the first applicant whether he could identify the “crucial evidence pertaining to the prevalence of forcible sterilization and abortion in FuQing”.[26] The first applicant said “there are some factual information as well some information from the internet”.[27] The first applicant, however, said he could not elaborate any further because he did not speak English and he did not have a lawyer.

   [26] T5.35

   [27] T5.40

6. The first applicant’s inability to speak English is not by itself a sufficient reason for the first applicant’s being unable to identify the evidence ground 2 claims the Tribunal denied. In those circumstances, the ground, as it stands, discloses no jurisdictional error by the Tribunal. It does not identify the evidence it is claimed the Tribunal denied.

7. The third ground of application is:

   I offered the Tribunal to take oral evidence from two witnesses who not only would attest my attendance at Church and involvement in Church activities, they would also attest the severe persecution facing underground church members in Fuqing and other places across China.

   In reference of section 426(3) of the Migration Act 1958, it is stipulated that if the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

   At Paragraph 40, it appeared that the Tribunal’s had regarded my wish to take oral evidence from the witnesses about my attendance, but there is nowhere in the decision, suggesting that the Tribunal had regarded my wish to take the oral evidence from the witnesses about the repression and persecution suffered by Christians from the underground Church in Fuqing.

   Therefore, I believe that the tribunal failed to have complied with the subsection 426(3) of the Act.

8. As with the other grounds, this ground was interpreted to the first applicant, and he was invited to make submissions. The first applicant made no oral submissions.

9. This ground relates to the Tribunal’s response to the applicants’ request that the Tribunal take evidence from two persons. The request was made by the applicants’ completing a “Response to Hearing Invitation” form.[28] In that form, the applicants identified the two persons from whom they requested the Tribunal take evidence. In relation to the first person, next to the printed words: “Describe this person’s evidence and how it is relevant to your case”, there was written the words: “To attest (testify) that my partner and I are members of . . . Church and we go to Sunday congregation on regular basis”. In relation to the second person, next to the printed words: “Describe this person’s evidence and how it is relevant to your case”, there was written the words: “To confirm we are members of . . . Church and have participated in a range of church activities”. The Tribunal decided it was not necessary for it to take evidence from the two persons because it accepted the applicants are Christians and attend the church about which the applicants wanted the two persons to attest the applicants attended. The Tribunal noted that the applicants did not claim they were involved in evangelism activities with either of the two persons.[29]

   [28] CB203-204

   [29] CB216, [8]

10. The gist of the complaint contained in ground 3 is that the two persons would have given evidence about the severe persecution facing underground church members in Fuqing and other places across China. There is no evidence, however, that the two persons would have given such evidence, or were in a position to give such evidence. In any event, there is no evidence the applicants at any time informed the Tribunal that they expected that either or both of the two persons would give evidence beyond that which was stated in the “Response to Hearing Invitation”. In particular, there is no evidence that the applicants informed the Tribunal that either or both of the two persons should be called to give evidence about the “repression and persecution suffered by Christians from the underground Church in Fuqing”.

11. Ground 3, therefore, fails.

Other matters

1. Mr Pindar, who appeared for the Minister, drew my attention to the decision of Judge Driver in SZVCH v Minister for Immigration & Anor[30] where his Honour held that, notwithstanding the Full Federal Court in SZGIZ holding that s.48A of the Act was confined to the making of a further application for a Protection visa that duplicates an earlier unsuccessful application,[31] the Tribunal made a jurisdictional error by not considering the applicant’s claims made in a second application for a Protection visa against the criterion prescribed by s.36(2)(a) of the Act where the delegate had done so. Mr Pindar, however, also drew to my attention two decisions of the Federal Court which have disagreed with Judge Driver’s judgment in SZVCH,[32] and to decisions of judges of this Court.[33]

   [30] [2015] FCCA 2950

   [31] [2013] FCAFC 71 at [38]

   [32] AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 (Markovic J); SZRAG v Minister for Immigration and Border Protection [2016] FCA 189 (Katzmann J)

   [33] For example, SZRSX v Minister for Immigration & Anor [2016] FCCA 622

1. Given the cases Mr Pindar has identified, it is not open to me to find that the Tribunal in the case before me made any jurisdictional error by concluding it did not have jurisdiction to determine the applicants’ claims against the criterion specified by s.36(2)(a) of the Act.

Disposition

1. I propose to dismiss the application. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 22 July 2016