SZRXF v Minister for Immigration

[2013] FCCA 369

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRXF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 369

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered complementary protection as provided for in s.36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 434, 430

Cases Cited:
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 15
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323

Applicant: SZRXF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2211 of 2012

Judgment of: Judge Emmett

Hearing date: 27 May 2013

Date of Last Submission: 27 May 2013

Delivered at: Sydney

Delivered on: 27 May 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Counsel for the Applicant: Mr David Burwood

Counsel for the Respondents: Mr Hamish Bevan

Solicitor for the Respondents: Ms Sophie Lloyd, Minter Ellison

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2211 of 2012

SZRXF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 10 September 2012 and handed down on 7 September 2012 (“the RRT”).

2. The applicant claims to be a citizen of the Peoples’ Republic of China (“China”) and of Mormon faith.

3. The issue in this case is whether the RRT considered the complementary protection criterion in s.36(2)(aa) of the Act. This issue is considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the RRT’s review and decision.

Background

1. The applicant first arrived in Australia on 18 August 2007 having departed legally from China on a passport issued in his own name and a subclass 571 student visa valid until 15 March 2010.

2. On 29 December 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 14 May 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 8 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 7 September 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 8 October 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by RRT

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated the following:

   a)The applicant came to Australia for study on 18 August 2007.

   b)In December 2008, the applicant returned home to visit his parents. In that time he joined the family church, the Church of Jesus Christ of Latter Day Saints. The applicant kept in contact with the church after he returned to Australia.

   c)In February 2010, the applicant returned home to see his sick grandfather. He found out his parents had been arrested. He wanted to see his parents but was blocked by the police and was attacked.

   d)The police let him see his parents and his father handed him a secret note. The applicant was searched and the note was found by the police and he was taken for interrogation. The applicant was then detained for one day and punished.

   e)When the applicant returned to Australia he continued his connection with the family church and sent gospel related material from the internet.

   f)Recently, the applicant heard that his mother had been summoned by police again and that her parents and their boss are under investigation.

The Delegate’s decision

1. On 7 May 2012, the applicant attended an interview with the Delegate.

2. On 14 May 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate accepted that the applicant was a member of the Mormon Church. However, the Delegate found that the applicant could practise his faith in China and did not face a real chance of persecution on that basis, having regard to country information before the Delegate. The Delegate found that the applicant was not of adverse interest to authorities in China based on his ability to lawfully exit China. The Delegate did not accept that the applicant came to the adverse attention of Chinese authorities when he returned to China in 2010. Nor did it accept that the Chinese authorities are still interested in him because of material he claims to have later sent from Australia.

4. Further, the Delegate found that the applicant’s delay in seeking protection in Australia indicated that his claimed fear is not well founded.

5. In considering the complementary protection criteria in s.36(2)(aa) of the Act, and having found that the applicant could return to China without being of adverse interest to the Chinese authorities, the Delegate was not satisfied that there are substantive grounds for believing that as a necessary and foreseeable consequence of his removal, there is a real risk that he will suffer significant harm in China.

The RRT’s review and decision

1. On 8 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 6 August 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 3 September 2012 to give oral evidence and present arguments. The letter also invited the applicant to send any new information or documents that it wished the Tribunal to consider.

3. The applicant did not provide any further documents in support of his review application.

4. On 3 September 2012, the applicant attended the RRT hearing and gave evidence.

5. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The decision of the RRT is accurately summarised by counsel for the First Respondent in his written submissions as follows:

   “Tribunal’s findings and reasons

   15. The Tribunal’s findings and reasons are at CB 106 [57]-[69].

   16. The Tribunal found that the Applicant was not a credible witness (CB 106 [58]) because:

   a) he displayed a fundamental lack of understanding of key matters relating to Christianity and Mormonism which was not consistent with that of someone who claims he regularly attended Church services (CB 106 [59]-[60];

   b) the Tribunal did not accept that he is a genuine Mormon or that he would wish to practise Mormonism upon his return to China (CB 107 [62]);

   c) the Tribunal was not satisfied that his attendance at Church in Australia was conduct otherwise than for the purpose of strengthening his refugee claims (CB 107 [62]);

   d) his account of claimed harm was at odds with independent country information concerning the treatment of house church members in Fujian province and the situation for Mormons generally (CB 107 [63]);

   e) of the significant delay in his applying for protection (CB 108 [64]).

   17. The Tribunal therefore rejected the Applicant’s claims (CB 108 [65]).

   18. Having rejected the factual basis for any of his claims, the Tribunal:

   a) found that the Applicant does not face a real chance of persecution for a Convention reason now or in the reasonably foreseeable future and therefore did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (CB 108 [66] and CB 109 [67]);

   b) was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that the Applicant will suffer significant harm and therefore did not satisfy the criterion in s 36(2)(aa) of the Migration Act (CB 108 [66] and CB 109 [69]).

   19. The Tribunal accordingly affirmed the decision under review (CB 109 [70]).

The proceeding before this Court

1. On 5 December 2012, the applicant attended a directions hearing before me. At that time, the applicant was unrepresented. I explained to the applicant that this Court had no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

2. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

3. On 13 February 2013, the applicant filed an amended application.

4. At the hearing, the applicant was represented by Mr David Burwood, of counsel, before this Court and had the assistance of a Mandarin interpreter. 

5. Mr Burwood confirmed that the applicant relied on the grounds contained in the amended application, filed on 13 February 2013, as follows:

   “1. The Tribunal breached section 425 Migration Act 1958 (the Act) by failing to invite the applicant to make submissions in relation to s.36(2)(aa) of the Act;

   2. (Withdrawn);

   3. The Tribunal failed to assess the applicant’s claims in relation to complementary protection; and

   4. The Tribunal’s written statement did not comply with the requirements of s.430(1) of the Act. ”

6. Mr Burwood tendered a bundle of documents identified as “Court Book”, filed on 24 October 2012, which was marked Exhibit 1A.

7. Mr Burwood confirmed that the grounds of the amended application all related to the RRT’s treatment of the issue of the RRT’s consideration of complementary protection in relation to s.36(2)(aa) of the Act.

8. It is common ground that the complementary protection criterion in s.36(2)(aa) of the Act came into force after the lodging of the applicant’s protection visa application, but before the applicant’s interview with the Delegate, and that, accordingly, both the Delegate and the RRT were obliged to consider whether the applicant satisfied the complementary protection provisions in the Act.

9. Mr Burwood conceded that the Delegate properly considered whether the applicant met the requirements of s.36(2)(aa) and that the Delegate’s finding that the applicant did not satisfy that criterion was open to it on the evidence and material before it and for the reasons it gave.

10. However, Mr Burwood submitted that the Tribunal had not properly considered whether the applicant satisfied the criterion in s.36(2)(aa). The RRT’s conclusions in relation to s.36(2)(aa) are as follows:

    “68. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    69. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.”

11. Mr Burwood submitted that the decision record did not suggest that the applicant was invited to make submissions in relation to complementary protection.

12. The respondent read the affidavit of Sophie Verity Lloyd, affirmed 27 May 2013, without objection. Ms Lloyd’s affidavit deposed as to extracts from the RRT hearing. Mr Burwood agreed that the extracts were accurate and that he did not wish to rely on evidence to the contrary.

13. Those extracts of statements made by the Tribunal Member are as follows:

    a)     “This is a hearing of an application by [the applicant]… held on 3 September 2012.”…

    b)“I also need to consider whether or not you meet the requirements for complementary protection which were introduced in March this year”…

    c)“Now, if you don’t meet that definition of a refugee, I still need to decide whether or not you are entitled to complementary protection”…

    d)“And these obligations are by… Australia’s other treaties not to return people to their country of origin”…

    e)“Now, as a part of that, I need to be satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence… of you being removed from Australia to a receiving country, there would be a real risk that you would suffer significant harm.”…

    f)“Now, this hearing is closed to the public, and you should feel fully free to tell me why you think you’re a refugee or entitled to complementary protection criteria.”…

    g)“As I said at the start of the hearing, I’ve got, I’m going to give you the opportunity to make any further comments to me about your claims. I don’t have any more questions for you, but I’ve got to give you this opportunity if you think there’s anything further that you want to tell me.”…

    h)“Is there anything further you want to say?”…

    i)“That’s alright, you don’t”.

14. A fair reading of the RRT’s decision record makes clear that the RRT understood its obligation to consider whether the applicant was entitled to complementary protection under s.36(2)(aa) of the Act. In particular, the RRT stated as follows:

    “16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen of Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

1. The RRT also accepted the difficulties of proof faced by applicants for refugee status and complementary protection and that a “liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations”.

2. At the hearing, the RRT explored with the applicant his claimed faith and past persecution. The RRT put to the applicant that he seemed to have a rather limited knowledge of Mormanism and Christianity, following exchanges it had with the applicant about basic precepts of those religions.

3. The RRT also put to the applicant for comment, country information before it that indicated that Chinese officials had acknowledged his religion as legitimate and that people are able to practise that religion in China, including at “worship services”. The RRT also put to the applicant that the country information indicated that the applicant’s home province of Fujian had been described as a relatively liberal province with few reports of arrest of unregistered church members. The RRT noted the applicant’s responses.

4. The RRT also explored with the applicant its concerns about his delay in seeking protection in December 2011 following the expiration of his student visa in March 2010. The RRT noted the applicant’s responses.

5. Ultimately, the RRT found the applicant’s evidence in relation to his religion to be vague, highly unconvincing and displaying a fundamental lack of understanding of several key matters relating to Christianity and Mormonism.

6. Ultimately, the RRT comprehensively rejected the applicant’s claims to be a genuine Mormon, that he would wish to practise Mormonism upon his return to China, that either he or his parents have suffered past harm by reason of their religion or that the applicant had sent material to his parents which caused them further harm. The RRT found the applicant’s claims to be at odds with the independent country information before it concerning the treatment of house church members in Fujian and the situation for Mormons in China generally. Further, the RRT did not accept the applicant’s explanations for his delay in seeking protection.

7. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

8. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

9. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

10. The extracts referred to in Ms Lloyd’s affidavit make clear that the applicant was invited to say whatever he wished in relation to his entitlement to complementary protection. That oral invitation to the applicant was in the context of the applicant’s knowledge that the Delegate had accepted that he had not satisfied the complementary protection criterion.

11. I accept the submission of counsel for the first respondent, Mr Hamish Bevan, that the Delegate’s decision was sufficient to put the applicant on notice as to the complementary protection criterion. Further, the RRT’s decision record makes clear that the matters put by the RRT to the applicant were sufficient to put the applicant on notice that the entirety of his claims was in issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 15).

12. In any event, in light of the RRT’s comprehensive rejection of the applicant’s claims to be a Mormon in China and persecuted for that reason, the RRT’s stated finding that it had considered the alternative protection criterion in s.36(2)(aa) and was not satisfied that the applicant met that criterion, was the only finding the RRT could have made in considering whether there are substantive reasons for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that the applicant would suffer real harm for the reasons claimed by the applicant.

13. For those reasons, even if the applicant was able to demonstrate a failure by the RRT to comply in some way with s.425 of the Act, which I reject, there would be no utility in granting any relief in light of the RRT’s comprehensive adverse findings in respect of the applicant’s claims.

14. Mr Burwood did not seek to rely on a breach of s.430 of the Act by the RRT and accepted Mr Bevan’s submission that a failure to comply with s.430 is not of itself jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323). In any event, for the reasons above, there is nothing on the face of the RRT’s conduct of its review, including its decision record, to suggest that it failed to comply with s.430 of the Act.

15. Accordingly, the grounds of the amended application are not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it. The RRT also identified independent country information to which it had regard. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate: 

Date:  27 May 2013