SZSLD v Minister for Immigration
[2013] FCCA 316
•2 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSLD v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 316 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 425A, 426A, 441A, 441C, 441G, 476 |
| Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 |
| Applicant: | SZSLD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3101 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 May 2013 |
| Date of Last Submission: | 2 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2013 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application made on 21 December 2012 is dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,326.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3101 of 2012
| SZSLD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me today an application made on 21 December 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 26 November 2012, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
Background
The Minister has filed in these proceedings a bundle of relevant documents (Court Book – “CB”). The following is relevant background.
The applicant is a citizen of the People’s Republic of China (“China”) (CB 1). He arrived in Australia on 23 February 2008 as the holder of a student visa, which expired on 15 March 2010 (CB 1). He remained in Australia without authority after this date. The applicant was interviewed by a departmental compliance officer on 13 May 2012, and at that time the applicant was refused a bridging visa (CB 1 to CB 13). It appears, therefore, that he remained in immigration detention.
The applicant applied for a protection visa on 28 June 2012, and, ultimately, he was assisted by a migration agent (CB 14 to CB 70).
Claims to Protection
The applicant set out his claims to protection in a statement of claim attached to his protection visa application (CB 41 to CB 42). In essence, he claimed to fear persecution because of his Catholic religion. He claimed that he would face serious physical harm if he were to return to China. He also claimed that he feared persecution because his family was Buddhist and the area in which he lived was predominantly of the Buddhist faith (CB 41). He therefore, feared harm for reasons of religion. He further claimed that he was not able to relocate elsewhere within China as his family all lived within a specific area and he would not have connections elsewhere (CB 42).
The Delegate
The applicant attended an interview with the Minister’s delegate on 11 July 2012 (CB 78). The delegate made his decision on 19 July 2012, refusing the application for a protection visa (CB 86). The reasons for the delegate’s decision were essentially that the delegate found the applicant was not a credible witness (CB 85.4). He rejected the applicant’s claims to be a practising Catholic or to fear “adverse treatment in China on account of his religion” (CB 81.6). Having regard to the relevant criteria set out in s.36(2) of the Act, the delegate was not satisfied that the applicant had a well-founded fear of serious harm, or significant harm, if he were to return to China (CB 85).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 27 July 2012 (CB 90 to CB 96). He was invited to a hearing before the Tribunal on 23 October 2012, and he attended with his representative and was assisted by an interpreter in the Mandarin language on that occasion (CB 119 and CB 124 to CB 125).
Through his representative, the applicant provided additional documents to the Tribunal, both before and after the hearing (CB 89 and CB 131 to CB 133). In essence, the additional aspects of the applicant’s claims were that he had regularly attended “underground church activities” in China, and had witnessed others being persecuted through this attendance (CB 132). He claimed, also, that he had been detained and warned previously by the Chinese authorities for taking part in religious activities (CB 133).
It is quite clear from the Tribunal’s reasoning that it had serious concerns about the applicant’s claims, and the evidence that the applicant gave. These concerns can be summarised as follows:
(1)The applicant’s lengthy stay in Australia prior to applying for a protection visa, and his previous delay in leaving China led it to conclude that such conduct was not consistent with a subjective fear of harm ([67] – [68] at CB 145).
(2)The applicant’s lack of knowledge of the Catholic faith while claiming to have practised it for many years, both in China and Australia. The Tribunal variously found the applicant’s evidence in this regard to be “superficial”, “limited”, and to have been “rehearsed and memorised” ([74] at CB 146).
(3)The Tribunal also found the applicant’s evidence in other aspects “confused and contradictory”, particularly with regard to his claimed persecution ([71] at CB 146). It did not find his claims of detention credible, noting the applicant’s ability to leave China without any adverse issue being raised ([77] at CB 147).
As a result, the Tribunal was not satisfied that the applicant would be targeted or mistreated by the authorities in China for being a Catholic Christian ([79] at CB 147).
In addition to finding that the applicant would not face any risk of “serious” harm because of its adverse credibility findings, the Tribunal also found that similarly he did not face a real risk of “significant” harm if he were to be removed to China.
The Application to the Court
The application to the Court contains the following, under the heading of “Grounds of Application”:
“(1) Jurisdictional Error.
(2) The decision of the refugee review tribunal be quashed.
(3) The minister for immigration and citizenship be restrained and prohibited from removing me from australia.
(4) The tribunal be directed to determine my application according to the law”
The “orders” sought by the applicant were:
“- An order that the decision of the tribunal or Minister be quashed.
- A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
1. Relief of court costs.
2. To be remitted to the R.R.T for decision in my favour according to law.
3. To set aside the decision of the R.R.T.”
Before the Court
At the first Court date in this matter I noted with the applicant that a bare assertion of jurisdictional error in the Tribunal’s decision, without some particularity, made it difficult for him to succeed in these proceedings. In that light, he was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. That referral took place so that the applicant could obtain legal advice. At that time, orders were also made to allow the applicant to file any further material in support of his application, including any amended application.
A certificate on the Court’s file reveals that a lawyer on the panel provided written advice to the applicant following a consultation with him. However, no amended application, nor any other document, has been filed by the applicant.
The matter was set down today for further directions in light of whatever additional material the applicant may have been able to file. The applicant had been put on notice at the first Court date that, in the absence of anything further from him, his application may not proceed beyond today.
When the matter was called today, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms N Johnson appeared for the Minister.
The Minister’s position was that the matter should, in light of the absence of anything further from the applicant, proceed to an immediate show cause hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). When asked his position, the applicant initially said that he had nothing further to say. In all the circumstances it was appropriate to proceed to a show cause hearing.
The applicant explained that his application to the Court had been drafted in some haste given that he did not have enough time. That it was only in April of this year that he had obtained the audio recording of the hearing with the Tribunal. Further, that at that time, he said he could not find any legal error in what the Tribunal had done.
In short therefore, the orders sought by the applicant rely on a bare assertion of jurisdictional error on the part of the Tribunal. It is the case that not only has there been no attempt to explain that assertion of error by the applicant, but on what the applicant now said to the Court it was plainly a concession that no legal error was ever going to be put forward by the applicant. That alone should be sufficient to justify dismissal of the application to the Court pursuant to r.44.12(1)(a) of the Rules.
What is referred to as ground one in the application is the only assertion of legal error. This has been addressed above. Grounds two, three and four are really expressed in the form of orders sought by the applicant. No assertion of legal error is contained there.
In any event, and quite separately, having considered the material that was put before the Court, I cannot see that any arguable case in support of an assertion of jurisdictional error can be made out in relation to the Tribunal’s decision.
The applicant was invited to a hearing, pursuant to s.425 of the Act (CB 118 to CB 119). That invitation was sent to the applicant’s authorised recipient, and the Tribunal complied with all the other relevant statutory and regulatory requirements (s.425, s.425A, the reference to s.426A, s.441A(4), s.441C(4), s.441G of the Act and r.4.35D of the Migration Regulations 1994 (Cth)).
There is nothing in the material before the Court to suggest that the hearing before the Tribunal was other than a meaningful opportunity for the applicant to make his claims and give his evidence (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759). From the only account of what occurred at the hearing which has been put before the Court, that is the Tribunal’s own account, it is clear that the issues in the review were exposed at the hearing (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”)). Further it is also clear that the rejection of the applicant’s factual account of claimed events in China, his claim to be a practicing Catholic, and the delay in making the application for a protection visa, were all live issues as a result of the delegate’s decision (SZBEL).
I cannot see that the Tribunal failed to deal with any aspect of the applicant’s claims, either expressly made or clearly arising from the material presented (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1). The Tribunal’s findings of fact, including its findings as to the credibility of the applicant’s claims, were all made within jurisdiction. They were reasonably open to the Tribunal on what was before and it gave cogent reasons for its findings (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
The applicant has failed to raise an arguable case for the relief that he claims by way of his application. The application itself, even in light of the material put before the court, has failed to raise an arguable case for the relief that the application otherwise claims. I cannot be satisfied, therefore, that the application has raised an arguable case for the relief sought, and I am therefore going to make an order dismissing the application made to the Court pursuant to r.44.12(1)(a) of the Rules.
It is appropriate that an order for costs be made in this matter in the usual way. I am satisfied that the amount sought is a reasonable amount in the circumstances. I will make that order.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 21 May 2013
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