SZSMA v Minister for Immigration

[2013] FCCA 528

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 528

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – no arguable case of jurisdictional error.

Legislation:  

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZSMA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 11 of 2013

Judgment of: Judge Driver

Hearing date: 13 June 2013

Delivered at: Sydney

Delivered on: 13 June 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,239.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT LAUNCESTON

SYG 11 of 2013

SZSMA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 3 December 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Fujian Province in China and had made claims of religious persecution.  He applied for the protection visa on 7 March 2012, having originally arrived in Australia as a student.  The protection visa application was refused by the Minister’s delegate on 9 July 2012, and the applicant sought review by the Tribunal.

2. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend the hearing.  The applicant attended that hearing on 14 September 2012.  The applicant was questioned at length about his past experiences in China.  The Tribunal put to the applicant concerns it had about the credibility of his account of those experiences.  The Tribunal records at [115] of its reasons[1] that it queried whether there was any reason, other than the applicant’s claim of religious persecution, that he was afraid to return to China.  It appears that he answered in the negative. 

   [1] Court Book  (CB) 150

3. The applicant provided post-hearing submissions, particularly in relation to his practice of Christianity in Australia.  In its reasons, the Tribunal found that the applicant was not a credible witness.  The Tribunal noted the applicant’s ability to depart China without difficulty in 2007, and to re-enter and exit China without difficulty in 2010.  The Tribunal also had regard to internal inconsistencies in the applicant’s account and variation in his account over time.  Tribunal found some of the applicant’s evidence vague and unconvincing.

4. The Tribunal also placed weight on what it saw as a long delay in the applicant applying for protection after leaving China.  The Tribunal rejected the applicant’s account of past harm in China.  The Tribunal accepted that the applicant has been a practising Christian in Australia, while having some doubt about the genuineness of that practice.  It appears from [144] of the Tribunal’s reasons[2] that the Tribunal gave the applicant the benefit of the doubt on the issue of his religious practice in Australia. 

   [2] CB 157

5. The Tribunal found that the applicant would not face a real risk of harm in China because of his religious beliefs, practices or activities.  Although it is not apparent that the applicant made a claim of political persecution, the Tribunal also found at [147][3] that the applicant would not face persecution by reason of any imputed political opinion, whether based on his religious beliefs and activities or for some other reason.  The Tribunal specifically noted that in making that finding, it was mindful that the applicant gave evidence at the hearing that he did not fear persecution for any reason other than his religious beliefs.

   [3] CB 158

6. These proceedings began with a show cause application filed on 4 January 2013.  The applicant now relies upon an amended application filed on 10 April 2013.  There is one particularised ground in the amended application:

   1. The Tribunal failed to complete the exercise of its jurisdiction

   Particulars

   The Tribunal restricted its consideration of whether the applicant would suffer significant harm in the future to harm he might incur as a result of his Christian beliefs and did not give consideration to other possibilities such as harm arising from treatment as a returning failed asylum seeker.

7. I received as evidence the court book filed on 4 February 2013.  The applicant conceded in oral argument that the Tribunal’s statement at [147][4] of its reasons that he did not fear persecution for any reason other than his religious beliefs is an accurate statement of what he said at the hearing.

   [4] CB 158

8. On the basis of the material before me, I am satisfied that the applicant made no claim to the Tribunal to fear harm in China as a failed asylum seeker.  Neither did any such claim squarely arise from any material before the Tribunal.  There is in my view no substance to the ground advanced in the amended application.  Because the applicant is self-represented, I have considered on the basis of the material in the court book whether any other arguable case of jurisdictional error by the Tribunal might be available to the applicant.  I see no arguable case of such error.  The Tribunal’s decision is a comprehensive and careful one.  There is no doubt that the Tribunal met its statutory obligations under the Migration Act 1958 (Cth). The review opportunity afforded the applicant was a fair one. I conclude that the applicant has failed to point to any arguable case of jurisdictional error by the Tribunal.

9. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

10. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,239.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  14 June 2013