SZTBS v Minister for Immigration

[2013] FCCA 1775

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1775

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Financial Management and Accountability Act 1997 (Cth)
Migration Act 1958 (Cth), s.424A

First Applicant: SZTBS

Second Applicant: SZTBT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1647 of 2013

Judgment of: Judge Driver

Hearing date: 31 October 2013

Delivered at: Sydney

Delivered on: 31 October 2013

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents:

Ms N Johnson

Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

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

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1647 of 2013

SZTBS

First Applicant

SZTBT

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 25 June 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  The applicants are husband and wife from China. 

2. The relevant protection claims were made by the first applicant, the applicant husband.  He was born in Fujian Province, China, in 1971 and, at the time of the Tribunal decision, was aged 41 years.  He was married on 19 February 2002 to the second applicant.  She was born in 1972 and was aged 40 years at the time of the Tribunal decision.

3. The applicants came to Australia in 2003 on business visas.  Those expired on 12 August 2007.  The applicants were granted bridging visas on 28 June 2007 which expired on 5 December 2007.  Further business visas were granted on 5 December 2007 which expired on 5 December 2011.  The following day the applicants applied for the protection visas.  At the same time and, in circumstances that the Tribunal considered significant, the first applicant commenced attending church in Australia.

4. The Minister’s delegate rejected the protection visa application on 11 May 2012.  The applicants sought review of that decision by the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicants to attend a hearing on 29 August 2012.  At that time the first applicant was questioned about a number of aspects of his claims, including his travel to and from China. 

5. The Tribunal noted at [30] of its reasons[1] that the first applicant had departed and returned to Australia several times since his initial entry.  In particular, he had travelled to China and returned in 2011.  The first applicant asserted that he had difficulties departing China.  The first applicant claimed to fear harm in China because of the involvement of himself and his family with the Local Church there.  The first applicant claimed that both his father and his grandfather had been involved in the Church, and that he had been detained because of that involvement.

   [1] Court Book (CB) 109

6. The Tribunal noted inconsistencies in the first applicant’s evidence concerning whether he was in China or not in 2011.  The Tribunal also noted inconsistencies in the first applicant’s evidence about his baptism and the duration of his detention in 2000.  The Tribunal also expressed concern about the failure of the first applicant to engage in religious activities in Australia before he sought protection here[2].

   [2] See generally CB 110-116

7. Following that hearing, the Tribunal wrote to the applicants, pursuant to s.424A of the Migration Act 1958 (Cth), putting the following inconsistencies to the first applicant for comment. First, he told the delegate that he joined the Church in Australia and was ready to receive baptism, but told the Tribunal that he was baptised in 1999 in China. Secondly, there were inconsistencies in his evidence to the delegate and to the Tribunal about the time and duration of his detention in 2000. Thirdly, there were inconsistencies in his evidence to the delegate and the Tribunal about the events of 2011. Finally, the Tribunal sought an explanation or comment about the first applicant’s evidence about his father not coming to the attention of the authorities over a long period during his asserted involvement with the Local Church as compared to the first applicant’s short involvement which, on his account, led to him coming to the adverse attention of the authorities on two occasions. The first applicant provided a written response which addressed most, but not all, of those issues[3]. 

   [3] CB 91-95

8. The Tribunal conducted a second hearing on 12 December 2012.  The second applicant confirmed at that time that she relied upon her husband’s claims and did not wish to give evidence.  The Tribunal informed the first applicant of its concerns about his delay in engaging in church activities in Australia, as well as his delay in applying for protection.  The first applicant was also questioned at length about his assertions concerning the construction and demolition of a place of worship in his home town[4].  The Tribunal had regard to country information concerning the Local Church in China and, in particular, in Fujian Province[5]. 

   [4] see CB 118-121

   [5] see CB 121-126

9. In its findings and reasons, the Tribunal expressed its concerns over the inconsistencies and contradictions between the first applicant’s written claims, his evidence to the delegate and the Tribunal at the two hearings, and country of origin information to which the Tribunal had regard and which was put to the first applicant.

10. Having regard to those concerns, the Tribunal did not accept the first applicant’s claims that his membership of the Local Church and his claim to be a Christian.  The Tribunal, likewise, rejected his claims about his asserted persecution of his father and sister, and the tearing down of the religious gathering place and building another one, the first applicant’s detention and torture in 2000, his involvement in a petition, and his taking of religious materials to China in 2011.  The Tribunal concluded that it did not accept any of the first applicant’s claims in relation to those matters[6].

    [6] CB 127-134

11. The Tribunal did not accept that the first applicant was a genuine Christian or a genuine follower of the Local Church in China or that his father was.  The Tribunal did not accept that the first applicant came to the attention of the Chinese authorities.  It did not accept that, on his return to China, the first applicant would involve himself in any Christian activities that would bring him to the adverse attention of the Chinese authorities or that he has already come to the adverse attention of the Chinese authorities[7].

    [7] At [175] CB 134

12. It follows that the Tribunal did not accept that, on his return to China, the first applicant would suffer any harm for his religion or for any other Convention reason.  The Tribunal also found that there was no factual basis for a finding that the applicants were entitled to complementary protection[8].

    [8] CB 134-135

13. These proceedings began with a show cause application filed on 19 July 2013.  The applicants continue to rely upon that application.  There are eight apparent grounds in that application, in an attachment to it, under the headings “Orders sought by Applicant” and “The Grounds of the Application …”:

    1, I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

    2, RRT did not consider our statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

    3, RRT failed to prudently consider our risk, especially our commitment of paralysing (sic) if we return to origin.

    4, RRT failed to consider our statements, explanation, and evidence provided in supporting our claim as a whole.

    5, RRT treat our case unfair and unreasonable and did not consider that we will be punished by the Chinese government due to family planning issue

    The Grounds of the Application are:

    1, I have been actively involved in church activities in Australia.  My action and religious performance has been evidenced by church elder with reference.

    2, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

    3, The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observe[er]

14. The application is supported by a short affidavit filed with it which I received as a submission. 

15. I received as evidence the court book, filed on 22 August 2013. 

16. The final paragraph in the attachment to the application asserts an apprehension of bias in the mind of a reasonable observer.  In oral argument I asked the first applicant what caused him to consider that the Tribunal was biased.  He referred to the Tribunal’s adverse credibility findings.  However, in the course of argument, as I took the first applicant through the various credibility concerns of the Tribunal, I explained to him that these were not evidence of bias but simply evidence of the Tribunal doing its job in testing those aspects of his claims about which the Tribunal had concern or doubt.

17. I reject the contention that the evidence discloses a reasonable apprehension of bias on the part of the Tribunal.  Likewise, I reject the contention that the Tribunal’s adverse credibility conclusions were reached unreasonably.  While paragraphs 1-4 under the heading, “Orders Sought” asserts that some aspects of the applicants’ claims were not considered, I am satisfied that all elements or integers of those claims were considered by the Tribunal.

18. Paragraph 5 under the heading, “Orders Sought” asserts in particular that the Tribunal did not consider what is described as the applicants’ family planning issue.  I asked the first applicant about that issue.  He explained that he and his wife have one child but would like to have a second child.  They have been trying to have a second child whilst in Australia.  They are concerned that they would not be permitted to do so in China.  They are both now in their 40s, and the first applicant noted that they had had difficulty in achieving a second pregnancy.  The first applicant also conceded that this issue had not been put before either the Minister’s delegate or the Tribunal.  In those circumstances, the issue of current concern to the applicants is not one of any legal significance in terms of the Tribunal’s decision. 

19. I conclude that the applicants have failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 41.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

20. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The first applicant claimed impecuniosity, and said that a costs debt should be waived. I am satisfied that an order for costs is appropriate in the circumstances of this case, and I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

21. Any application for waiver should be made in accordance with the Financial Management and Accountability Act 1997 (Cth), or its successor legislation.

22. I will finally order that the name of the first respondent be amended to the Minister for Immigration and Border Protection.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 November 2013