SZSEH v Minister for Immigration

[2013] FCCA 2425

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSEH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2425

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

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider the applicant’s claims and failed to give him information pursuant to s.424A of the Migration Act 1958.

Legislation:

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

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

Applicant: SZSEH

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2610 of 2012

Judgment of: Judge Cameron

Hearing date: 4 September 2013

Date of Last Submission: 4 September 2013

Delivered at: Sydney

Delivered on: 4 September 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended in the Court’s record to the ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2610 of 2012

SZSEH

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 16 May 2007 on a student visa.  On 12 December 2011 he lodged an application for a protection visa with what was then the Department of Immigration and Citizenship, alleging that he feared persecution in China because of his religious beliefs.  On 30 April 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’s 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 were set out on pages 4-10 of the Tribunal’s decision and I will relevantly summarise them.

2. The applicant made the following claims in a statement attached to his protection visa application:

   a)he became interested in Christianity in 2008.  His friend took him to a church in Ashfield and he began to attend regularly;

   b)he initially attended church because he had heard that people there were kind and often found jobs for other church members.  However, after reading the Bible and attending church he became a faithful Christian;

   c)his parents were Buddhists and did not support his religious beliefs.  His father, who had worked for a local government in China, had told him that the Chinese government maintained strong control over Christianity.  The local government required all Christians to be registered and persecuted underground churches; and

   d)his father, who was in Australia, had ordered him to stop his religious activities and so he started hiding from him.  His father had said that he would send him back to China.  He had heard from other church members that Christians in China were persecuted.  He did not want to return to China because he did not want to face his parents and feared that the Chinese government would mistreat him.

3. The applicant made the following additional claims at a Tribunal hearing on 20 August 2012:

   a)he was introduced to Christianity in 2010.  He then went on to say that a friend started taking him to church in 2008 where he would just sit and watch.  In the same year his friend also organised a job for him in a Christian bookshop but he could not remember its name;

   b)the church he attended was the Ashfield Spiritual Church and he only knew that it was the “denomination of Maria.”  The applicant then said that it was a Catholic Church.  He did not know the name of the street on which it was located, just that he turned left when he came out of the railway station;

   c)he attended church on Saturdays and they would have music and sing.  When asked by the Tribunal to confirm the day he attended church the applicant said that since 2008 he had attended on most Sundays at 10.30 am and listened to a priest reading the Bible.  The service was conducted in Mandarin;

   d)he had not been baptised but had received Communion.  In his church a person did not need to be baptised to receive Communion; and

   e)although he was a Christian he was not really religious.  He had not been studying his religion because of work and stress.

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 or under s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal accepted that the applicant had acquired some basic knowledge about Catholicism and Christianity generally.  However, it had concerns about the majority of the applicant’s evidence and this caused it to find that he was not a credible witness and had not been truthful in relation to his experiences with Christianity or his fears about returning to China.  In this connection the Tribunal noted that:

   i)the applicant gave inconsistent evidence about when he was introduced to Christianity.  The Tribunal found the applicant’s evidence on this issue internally inconsistent, vague and unsatisfactory and therefore rejected his evidence about the chronology of his Christian journey;

   ii)the applicant gave differing answers when asked to name the church he attended.  The Tribunal found the applicant’s description of the church to be unconvincing, vague and internally inconsistent.  It did not accept as plausible that the applicant would be unable to clearly state the name and denomination of the church he claimed to have attended for four years;

   iii)the applicant was unable to name the street on which the church he claimed he had attended for four years was located;

   iv)the applicant gave hesitant and inconsistent evidence about the day and time he attended church.  The Tribunal found that a simple fact such as the day and time of a religious adherent’s regular practice would be readily forthcoming.  It found it implausible that the applicant was unable to explain that aspect of his claims;

   v)the applicant’s claim that he could receive Communion without being baptised was inconsistent with independent information stating that the diocese of which the Ashfield Catholic Church was a part required people to be baptised before they could receive Communion.  In light of that information and the applicant’s unconvincing responses, the Tribunal found that his claim to have received the Eucharist in a Catholic church within the Sydney Diocese prior to baptism was not credible; and

   vi)the applicant’s evidence about the development of his faith was vague, unconvincing and lacking in the level of detail expected in relation to that significant part of his life.  The Tribunal considered that a convert to religious faith would be able to describe clearly and in depth the various thoughts and events leading to their adoption of that religion.  It found that the applicant’s evidence appeared rehearsed, fabricated and not related to his own personal experiences.  The Tribunal did not accept as plausible the applicant’s explanations for his vague and unconvincing evidence: that he was not really religious and had not studied his religion well enough because of work and stress;

   b)the Tribunal did not accept that the applicant had worked in a Bible shop as he claimed.  It did not accept as credible the applicant’s assertion that he could not remember the name of the shop or that he was unable to provide some basic details about his job there;

   c)the Tribunal concluded that the applicant was not a Christian and did not accept that he had practised Christianity in Australia.  Having made those findings, the Tribunal further found that the applicant would not engage in the practice of Christianity or in any Christian-related activity if he returned to China.  The Tribunal therefore found that the applicant would not be harmed or exposed to the government by his parents on the basis of his claim to Christianity or be of interest to the Chinese authorities due to Christianity or any other reason; and

   d)having considered all the information before it, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a risk that he would suffer significant harm.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal rejected the applicant’s credibility on no reasonable grounds.  The Tribunal [sic] claims that the RRT’s decision was affected by judicial error as it failed to give sufficient consideration to the applicant’s claims that he is a Christian and will be persecuted by the Chinese Government of he returns to China.

   2.The Tribunal failed to invite the applicant to comment on information that is adverse to his application.

   3.The Tribunal failed to take into consideration the applicant’s religious practice in Australia.

2. Additionally, in his submissions at the hearing of this application the applicant submitted that the Tribunal had not considered whether Christianity was acceptable in China.

Consideration

1. The first and the third grounds of the application may be considered together as can the applicant’s submission made at the hearing. As the summary of the Tribunal’s decision record set out earlier in these reasons makes clear, the Tribunal considered the claims which the applicant made and explored them with him in some detail at its hearing. It then set out those claims in its reasons and conducted a careful and logical analysis of the responses which the applicant gave to its questions, as well as of the matters which the applicant had advanced in support of his application. It is apparent that the consideration which the Tribunal gave to the matters before it was careful, logical and sufficient to discharge its review obligations under the Act. In doing so, it reached conclusions which were open to it on the evidence.

2. The finding which led the Tribunal to conclude that it would affirm the delegate’s decision was that it did not believe that the applicant was, as he claimed, a Christian.  Because the Tribunal made that finding, it was not necessary for it to go further and consider the situation of Christians and Christianity in China.  Consequently, the fact that it did not do so does not demonstrate error on its part. 

3. The second ground of the application impliedly alleged a breach of s.424A of the Act. That section relevantly provides:

   (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; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   …

   (3)     This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; …

4. The information upon which the Tribunal based its decision to affirm the delegate’s decision was, principally, information which the applicant provided to it at its hearing. The other information which the Tribunal relied on was information which it sourced from the Catholic Church in Sydney. Those two sorts of information fall within the exclusions to the operation of s.424A(1) found in s.424A(3). Consequently, the fact that the Tribunal did not put that information to the applicant did not amount to a breach of the Act.

Conclusion

1. The applicant has not demonstrated that there was jurisdictional error on the Tribunal’s part. 

2. Consequently, the application will be dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 8 July 2014