SZSDS v Minister for Immigration and Anor

[2013] FCCA 1353

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSDS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1353

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider a claim made by the applicant, failed to consider evidence, breached s.424A of the Migration Act 1958, failed to undertake an investigation and provided inadequate interpreter services.

Legislation:

Migration Act 1958, ss.36, 91R, 424A, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZSDS

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2582 of 2012

Judgment of: Judge Cameron

Hearing date: 12 September 2013

Date of Last Submission: 12 September 2013

Delivered at: Sydney

Delivered on: 16 September 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2582 of 2012

SZSDS

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 3 January 2008 on a student visa which was valid until 26 December 2008.  On 27 February 2012 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in China because of his Christian faith.  On 27 June 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-18 of the Tribunal’s decision. Relevant factual allegations are summarised below.

Protection visa application

1. In a written statement attached to his protection visa application, the applicant made the following claims:

   a)he came from Fujian;

   b)his parents and relatives were Christians and he “built up” his recognition of the Local Church from a very young age. He had been part of the church choir group but did not attend adult gatherings because his parents prohibited him from participating or being baptised due to the dangers involved;

   c)when he was young his parents were punished by the government.  One day he came home and was told that his parents had been arrested.  After a long period of time he was allowed to see his father at the police station.  His father secretly told him the location of a Bible at their house and told him to retrieve it and give it to the church brothers;

   d)when leaving the police station, he was detained by a policeman who put him in a small dark room and scared him “with fist and police baton”.  After the police threatened to detain him for the night and tell his school to send him to reformatory school he told the police what his father had told him;

   e)the police went to his house to search for the Bible but were hindered by his grandmother whom they pushed to the ground after a quarrel.  The police were unable to find the Bible and were furious at him.  They yelled and beat him and took him back to the police station where he was detained for a day and treated poorly.  He was told that they would continue to detain him if he did not say where the Bible was.  However, regardless of what he told them, the police did not believe him.  His grandmother came to the police station and told the police that she had burned the Bible but she was also detained as the police did not believe her;

   f)after his release he was too afraid to join any gatherings.  He was also criticised and warned by his school;

   g)after his arrival in Australia in January 2008, he was involved in some church activities and events but could not find the Local Church;

   h)in June 2008, while visiting family in China, he gave some gospel CDs to his fellow church members;

   i)during Easter 2011, his family’s church gathering was “investigated” by the police and the elder of the church and his father were both arrested.  The CDs that he had given the group during his visit to China became evidence of “cult propaganda”.  The police knew that it was he who had brought the CDs into China;

   j)during the 2011 Christmas holiday period, one of his former classmates, who was also a church member, was fined and cautioned by police due to his involvement with the underground Local Church; and

   k)he eventually found a Local Church in Australia and was baptised.

Review application

1. The applicant appeared before the Tribunal on 19 September 2013 and provided a certificate from the Local Church in Sydney confirming that he had been attending church meetings regularly since May 2012.  At the hearing he gave the following evidence in support of his claims:

   a)he first became involved with the church when he was seven or eight years of age and was not baptised in China. He would participate in gatherings if they took place in his home but his parents would not allow him to attend if they were held in another member’s home.  When he was a teenager, he attended boarding school and did not go to gatherings.  He later claimed that when he started junior high school he went to church gatherings once or twice every month, however, his attendance was not fixed as he was boarding and it could have been weeks before he went home;

   b)his parents were “really faithful” and would organise almost every gathering, sometimes at their own home.  At the gatherings they would read the Bible, pray and share their “witness experience”.  He did not read the Bible a lot and mostly listened to the gatherings as his parents told him he should focus on his studies because the gatherings could be very dangerous.  He would also sing hymns with the children but at the hearing was unable to remember any of those hymns;

   c)apart from a few pages, he had not read the Bible before coming to Australia as his father had told him not to touch it and to concentrate on his studies instead.  It was not compulsory for people to finish the Bible and one could be a committed Local Church member without reading it;

   d)he came to Australia to study because he wanted to experience the teaching in Australia.  His friends had called him from Australia and told him the environment was so much better than China.  His aunts from the church told his parents that gatherings in Australia were “more free”;

   e)he had not experienced any difficulties in obtaining a passport in China and he did not use any false information to do so. He later claimed that his car was stopped on the way to the airport when he was leaving China for the first time;

   f)he first attended a Local Church gathering in Australia in April 2008 at a church sister’s home after being informed of the gathering by his uncles.  He had been unable to find a Local Church in Australia between January and April 2008 because he did not know a lot of people and could not ask someone suddenly because they might have thought that he was crazy;

   g)the gatherings in the homes of church members were like the secret gatherings in China.  He estimated that he attended the gatherings once or twice a month;

   h)he had attended churches in Guildford and Lidcombe and had regularly attended the Lidcombe church since May 2012;

   i)he visited China in 2008 because his mother was in hospital.  During that visit he showed the four gospel CDs to his father.  The CDs contained hymns, witnesses and prayers from gatherings held at a church sister’s home in Australia.  He took the CDs to China because he not think it was a big thing and he did not recall a lot from his childhood experience;

   j)his father told him at Easter 2011 that the CDs had been forfeited and that a few people, including his neighbour, had been arrested.  When put to him, he denied that he had claimed in his visa application that his father had also been arrested;

   k)many people in his home area knew that the CDs the police had found at Easter 2011 had come from overseas and that he had brought them in.  The local police were aware that he had been to gatherings in China and they even warned people in his area to notify them should he return;

   l)he believed that the local authorities became aware that he had been attending church gatherings in Australia in 2011 because Local Church members would usually hold gatherings in their homes and the CDs would have only been discovered if someone had reported him;

   m)he believed that if he were to return to China he would be spotted by Chinese authorities and taken away by them.  He feared harm in China because he had taken those four CDs to China and had applied for refugee status in Australia.  He further claimed that there were tensions between Japan and China leading people to be “crazy about patriotism.” He claimed that society was “really very messy” at that moment and that a war would mean that Fujian “would suffer a lot”; and

   n)he had not checked when his student visa had expired as he could not read some English.  He thought that his visa had expired in December 2008 or 2009 but at that time was not aware that it had expired as he had hardly used his passport after he arrived in Australia.  He also did not give a lot of thought to the persecution he feared.  After he told his church brothers and sisters about what had happened during Easter in 2011, they suggested that he apply for a protection visa but he did not think it “mattered” until December 2011 when something happened to his friend.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)it concluded that the applicant was not a truthful witness and had fabricated his claims for protection.  It found that the applicant had had no involvement in church activity in China and that his knowledge of the Christian faith was acquired after he arrived in Australia.  In this connection, the Tribunal referred to the following findings:

   i)it considered that there were significant inconsistencies and deficiencies in central elements of the applicant’s evidence which led it to doubt the applicant’s general credibility. The Tribunal referred to inconsistencies in the applicant’s evidence relating to his claims that his father was detained at Easter 2011.  It also considered that his evidence relating to his alleged detention by police was confused and inconsistent.  The Tribunal did not accept that this deficiency in the applicant’s evidence could be explained by his youth or memory loss as he claimed.  It also had regard to the applicant’s inconsistent evidence regarding whether he knew anyone when he arrived in Australia;

   ii)it considered that the applicant’s delay in applying for a protection visa was relevant to assessing the genuineness of his claimed fear of persecution.  It expressed concern that the delay was inconsistent with a genuine fear of persecution.  The Tribunal did not accept the applicant’s explanations for his delay in seeking protection and found his evidence in this respect to be implausible, vague, internally inconsistent and inconsistent with a genuine fear of persecution; and

   iii)it considered the applicant’s evidence about attending Local Church gatherings at his family home to be vague and lacking compelling and persuasive detail.  In this regard, the Tribunal accepted that the applicant had some knowledge about some aspects of Christian faith but considered his level of knowledge to be inconsistent with a person who had regularly attended the Local Church in China.  It also did not accept that the applicant’s inability to remember practically anything about the hymns he had sung in his church choir group could be explained by him having a poor memory or by him having only attended the Local Church as a young child;

   b)it rejected the entirety of the applicant’s claims relating to his religious activities and the religious activities of his family members in China.  It did not accept that the applicant had a genuine fear of persecution in China or that he would be persecuted for reasons of religion, imputed religion or imputed political opinion if he were to return to China.  In this connection, the Tribunal found that the applicant had not given a credible account of his claimed detention by the Chinese authorities or of the claimed detention of his family members.  It did not accept that the applicant or his family members had ever come to the attention of the authorities because of his or his family’s religious activities.  It also did not accept that he or his family members had any commitment to Christianity or the Local Church and found that the applicant’s travel to Australia was entirely unrelated to his claimed religious beliefs;

   c)it accepted that the applicant had attended church gatherings at a private residence in Blacktown and attended church in Guildford and Lidcombe. However, having found that the applicant was not credible and had had no involvement in or commitment to the Local Church and Christianity in China, the Tribunal disregarded the applicant’s participation in church activities in Australia pursuant to s.91R of the Act. It was not satisfied that the applicant had engaged in religious activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee; and

   d)it did not accept the applicant’s claim that as a failed asylum seeker he would be imputed with an anti-government political opinion.  The Tribunal noted the applicant’s apparent claim that the tensions between China and Japan would lead him to be imputed with anti-government views.  However, due to the lack of detail provided and the fact that the claim was made late in the hearing, the Tribunal did not accept that he had a genuine fear of persecution for any reason related to those alleged tensions.

Proceedings in this Court

1. In an attachment to the application commencing these proceedings the applicant alleged:

   1.I have engaged in Local church’s activity since young under family influence, and become a committed Local Church member in Fujian, China, and have hard experiences from Chinese government due to underground church activity.

   2.I have been insisting my religion and practice after arrived in Australia. I long for religious freedom, maintaining in Australian church I am currently with and preaching gospels but all these can never realize in China.

   3.I have a fear of return to origin as the situation of church practicing have never improved significantly in my area. Those pursuing family church especially Local Church are still being harmed, blackmailed and supressed.

2. Under the heading “Orders sought by Applicant”, the applicant made the following further allegations:

   I don’t think Tribunal’s decision is fair to me as they failed to well consider my statement and explanation in the hearing, and my risk of return due to my commitment with Local Church is not prudently considered.

   Tribunal failed to give me ample opportunity to common [sic] on those outstanding issues or doubt associated with my claim and evidence given in hearing.

   Tribunal failed to carefully consider my family’s religious background and the hard experience and persecution suffered in origin, and its adverse impact on me, further more, failed to assess my religious commitment and continuous effort in practicing.

   I failed to express myself correctly in some issues due to my stress on hearing but tribunal failed to give a good understanding to my special situation.

3. The first three paragraphs of the application go no further than alleging facts whose relevance is limited to whether the applicant meets the criteria for the grant of a protection visa. That is to say that they invite the Court to undertake a review of the merits of the applicant’s application for a protection visa. The Court cannot do that.  Its task is limited to determining whether the Tribunal’s decision is affected by jurisdictional error.

4. The first of the second set of paragraphs in the application alleges that the Tribunal failed to consider the applicant’s claim to fear persecution or the evidence on which that claim was based.  The summary of the Tribunal’s decision appearing earlier in these reasons discloses that the applicant’s claim to fear persecution in China by reason of his religion was considered by the Tribunal as were the various matters he advanced in support of that claim.

5. The second of the second set of paragraphs implies a breach by the Tribunal of its obligation under s.424A of the Act to advise the applicant of information which might have led it to affirm the delegate’s decision. However, that obligation does not apply to information which an applicant supplies to the Tribunal him or herself, supplies in writing to the Minister’s department or to information which is not specifically about the applicant and is just about a class of persons of which the applicant is a member. The Tribunal’s decision was based on such information and thus it had no obligation under s.424A as the applicant impliedly alleged.

6. The third of the second set of paragraphs does not take into account the Tribunal’s detailed analysis of the applicant’s factual allegations.  Contrary to the assertion which that paragraph makes, the Tribunal did consider the religious background of the applicant’s family and his allegations of having been persecuted in China.  The additional allegation, that such consideration as the Tribunal might have given to those matters was insufficiently careful, invites the Court to reconsider the merits of his application for a protection visa, which it cannot do.

7. The fourth of the second set of paragraphs suggests that the applicant was effectively denied an opportunity to present his evidence and arguments at the Tribunal hearing.  No evidence was advanced in support of that allegation and it is not made out.

8. At the hearing of this application the applicant made a number of additional allegations.  The first of these was that the presiding Tribunal member never sided with him or saw things from his perspective.  The Tribunal had no obligation to find in the applicant’s favour or to agree with his propositions.  Consequently, this allegation does not disclose error on the Tribunal’s part.

9. The applicant also alleged that the Tribunal had not undertaken an investigation into material before it and had never taken steps to investigate his local area and the sorts of actions taken by his local government.  However, no obvious enquiry of a critical fact whose existence would be easily ascertained is apparent in this case and thus the fact that the Tribunal did not undertake any enquiries does not evidence error.

1. The applicant further submitted that the country information the Tribunal had obtained came from the internet.  The Tribunal is entitled to obtain information from whichever source it considers appropriate and the fact that an applicant might disagree with the Tribunal’s choice does not indicate that it erred.

2. The applicant also alleged that he had been nervous at the Tribunal hearing and that this might have produced the inconsistencies in his accounts which the Tribunal identified.  The applicant did not go so far as to say that any nervousness which he might have experienced at the Tribunal hearing, which does not appear to have been sufficiently significant that it called for remark by the Tribunal in its reasons for decision, prevented him in any way from putting before the Tribunal the evidence and arguments he wished it to consider.  Consequently, this allegation does not support a finding of jurisdictional error on the Tribunal’s part.

3. Finally, the applicant alleged that the interpreter services provided at the Tribunal hearing were deficient.  He adduced no evidence in support of that assertion and conceded in his address that he could not speak English.  The basis of his concern was that he saw his interpreter assisting another person at the Tribunal’s premises and concluded that the interpreter might have been a migration agent and therefore an inadequate interpreter.  The evidence indicates that the interpreter who attended the Tribunal hearing was certified to NAATI level 3.  In sum, the evidence does not support a conclusion that the interpreter services in question were inadequate such that the applicant was prevented from effectively communicating with the Tribunal or that any conclusions by the Tribunal were based on matters erroneously translated.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  16 September 2013