SZSDB v Minister for Immigration

[2013] FCCA 738

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSDB v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 738

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to consider claims made by the applicant – whether applicant provided opportunity to give evidence and present arguments – where applicant claimed to have been distracted by physical action of Tribunal member – where no prior mention or evidence of distraction – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth) ss.91R(3), 425

Applicant: SZSDB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2511 of 2012

Judgment of: Judge Raphael

Hearing date: 28 June 2013

Date of Last Submission: 28 June 2013

Delivered at: Sydney

Delivered on: 28 June 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $3,300.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2511 of 2012

SZSDB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who came to Australia on 29 September 2007 as the holder of a guardian visa.  On 28 February 2012 he applied to the Department of Immigration for a Protection (Class XA) Visa which was refused him by a delegate of the Minister on 12 July 2012.  The applicant applied for a review of that decision from the Refugee Review Tribunal.  The applicant attended a hearing before a tribunal member on 26 September 2012.  On 9 October 2012 the Tribunal determined to affirm the decision not to grant him a protection visa.

2. The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations were the Convention ones of religion and imputed political opinion.  The applicant told that he was a long time follower of the Mormon Church in his home state of Fujian.  In his statement in the visa application form he said that he had been troubled by the Chinese authorities at a gathering of Mormons at Christmas in 2005 and again in February 2007 when he had been betrayed by a businessman who had seen him watching Mormon Church CDs.  He was accused of involvement with cult activities and was held for two days in a police station where he claimed he was tortured.  He had a further problem when he tried to remove certain Mormon church materials and this resulted in his family being implicated with his difficulties.  Although the applicant came to Australia in 2007 as the guardian of his young son, he tells that he did not find a Chinese Mormon Church until July 2011.  He was baptised into that church and says that he regularly attends.

3. At the Tribunal hearing these matters were discussed and the applicant was asked what he intended to do as a Mormon.  He claimed that he wished to become a missionary but agreed that the work required time which he did not have as he was working five days a week.  The Tribunal raised with the applicant independent country information which indicated that the Mormon Church was in fact tolerated in China because it specifically required its members to obey the law of the land. 

4. During the course of the hearing the Tribunal raised with the applicant matters upon which it had concern and sought his views. In particular it spoke to him of its obligations under s.91R(3) of the Migration Act 1958  (Cth)[1] to disregard any activity in Australia unless it could be satisfied that it had not been undertaken for the sole purpose of furthering his refugee claims.  It raised with the applicant the lengthy time that had passed between his arriving in Australia and finding the church.

   [1] The “Act”.

5. In its findings and reasons the Tribunal accepted that the applicant had been involved with the Mormon Church in Australia from middle to late 2011, and that he was baptised and confirmed into the Mormon faith in late 2011 but as to his involvement with the church in China it said:

   “I have doubts as [to] the applicant’s involvement in China prior to his travel to Australia.  These doubts are based on the applicant’s evidence being in direct contradiction to the country of origin information regarding the behaviour and teachings of the Mormon Church in China, that is, one of the 13 Articles of the Mormon Church is that followers are to follow the law of the land that they are in and applying this in China, the Chinese Mormon Church teaches that its members should not evangelise in China.  The applicant seemed unaware of this and also gave evidence that he held religious information that was to be passed to other people and that he wished to work as a missionary and save Chinese people if he was to return to China.  In addition, the applicant’s description of his receiving a warning in 2005 and being detained in 2007 due to his involvement with the Mormon Church contradicts country of origin information regarding the treatment of Mormon Church followers by the Chinese authorities.  These factors led to the Tribunal finding the applicant’s claims in these areas to be untrue.  That is, the Tribunal finds that the applicant was not a member of the Mormon Church in China.”  [[57] CB 105]

6. The Tribunal concluded that the applicant’s activities in Australia were undertaken for the sole purpose of furthering his refugee claims and were therefore disregarded.  It found that the applicant was not given any warnings in 2005 or detained in 2007 and therefore he would not suffer any harm for a Convention reason should he return to China. 

7. The Tribunal then turned to complementary protection which it had defined at [[16] to [18] CB 97]. It noted that s.91R(3) did not apply to its consideration of complementary protection and therefore took into consideration whether or not the Chinese authorities might render the applicant subject to significant harm should he return because of his involvement with Mormon Church activity whilst he was in Australia. Utilising the independent country information that it had referred to previously the Tribunal concluded that it was not likely to be the case, and it did not have substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China there would be a real risk that he would suffer significant harm upon his return.

8. On 2 November 2012 the applicant filed an application with this court seeking review of the Tribunal’s decision.  In the attachment to the grounds of application he stated that he thought that the decision was unfair because his statements and explanation given during the hearing were not thoroughly considered:

   “Tribunal failed to consider my religious history and potential risk if forced to return to origin due to my commitment of pursuing in Christian faith of Mormonism in Australia.

   Tribunal fails to consider my explanation and all the relevant reference provided especially my commitment to being a missionary.

   The Grounds of the Application are:

   1.   I am from Fujian province of China, having a commitment of Mormonism, practicing in underground church and being persecuted by Chinese government.

   2.   Tribunal did not well consider the fact of my involvement with underground church, the impact and future risk if return to origin as Mormonism practicing and preaching still remains as illegal in China.  I can definitely not give up my faith, religious freedom, especially the way I practised in Australia and preaching wherever I go.

   3.   Tribunal fails to thoroughly and prudently consider my claim and failed to give me a chance for further explanation and never asked the evidence for my claim.” [as it appears in the application]

9. To the extent that the applicant is complaining here that the Tribunal did not consider claims that he made which, had it been the case, might have justified a finding of jurisdictional error, this cannot be substantiated.  The applicant’s claims, as he made them, are considered in full and are set out, in detail, in the decision record.  To a great extent, the applicant’s complaints constitute a request for a merits review of the Tribunal’s decision, which is impermissible in this court. 

10. There was no evidence provided by the applicant that there was some form of underground Mormonism operating in China and so the country information utilised by the Tribunal to come to its conclusion would seem to me the most apt.  Provided that a Tribunal comes to its view on the basis of available evidence, it is difficult for the court to interfere. I do not believe there is anything in the stated grounds of application that merit review by the court. 

11. The applicant appeared before me today.  He said that when he went to the Tribunal, he was told straight away that he had only applied for a protection visa because he wished to extend his time in Australia.  He said that the member had said this.  On some further questioning from me, he said that there was a bit of difficulty in the interpretation and there were some communication problems but he had the feeling that it was a statement being made by the member.  Regrettably, although the applicant was given a CD of the Tribunal hearing on 26 September 2012, he has neither produced that nor acted in accordance with the orders of this court to provide a transcript of what occurred before the Tribunal. 

12. It has long been the practice of the Minister that if matters such as this are raised by an applicant in his application or in any subsequent written statement or affidavit, the Minister’s solicitors obtain the transcript. The claim made by the applicant today is the first time such a claim has been made and I am bound to deal with the case on the basis of the evidence before me. The best evidence is the decision record where no suggestion of the type made by the applicant appears. As Ms Stone submits, the decision record gives no cause for concern that the applicant was not provided with an opportunity to give evidence and present arguments, as required by s.425 of the Act.

13. The applicant also told me that, during the course of the hearing, the Tribunal member indulged in a personal activity that he found distracting because of her gender and appearance.  Once again, apart from his statement, there is no evidence of this and the matter has never previously been raised.  But one has to wonder that, even if that did occur, how it might have affected the story being told by the applicant or whether a tribunal would accept it or not.  The activity complained of was not made towards the applicant.  It was just something he noticed. 

14. In these circumstances, I am unable to provide the applicant with the relief he seeks.  The application must be dismissed and the applicant must pay the respondents’ costs which I assess in the sum of $3,300.00. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  5 July 2013