SZTGL v Minister for Immigration

[2014] FCCA 2263

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2263

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

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

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

Applicant: SZTGL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2134 of 2013

Judgment of: Judge Cameron

Hearing date: 20 August 2014

Date of Last Submission: 20 August 2014

Delivered at: Sydney

Delivered on: 20 August 2014

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,200.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2134 of 2013

SZTGL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 28 September 2011 as the holder of a student visa.  On 18 September 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in China because of his religious beliefs.  On 21 January 2013 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. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   a)from August 2010 he had attended a house church in his home town in China.  The church had about twenty members and conducted its services at the home of one of the church members;

   b)in February 2011 he and his fellow church members were told by the police to stop their church attendance or face arrest;

   c)he decided to leave China because there was no freedom of religion there and because he feared arrest;

   d)in Australia he had sometimes attended a church called the Church of Grace in Campsie, a suburb of Sydney.  At some point after July 2012 he began attending a Presbyterian church in Newcastle and had met its minister; and

   e)he had not been baptised.

The Tribunal’s decision and reasons

1. 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)the Tribunal found that the applicant’s account to it of his experiences in China was vague and not consistent in basic respects with information he had given to the Department.  In this connection the Tribunal noted that:

   i)the applicant’s evidence regarding the period he had attended church varied: at the Tribunal hearing he said that he had attended the house church about forty to fifty times between August 2010 and September 2011, when he travelled to Australia, whereas at the departmental interview he had said that he had attended a few times and had stopped going to church in February 2011.  The applicant then said that he had been wrong and in fact had not attended forty to fifty times and did not know how often he had attended;

   ii)the applicant told the delegate that after the police raid his house church had ceased “religious activities” but at the Tribunal hearing he said that they had met at the homes of other believers and had not returned to the home that had been raided;

   iii)the applicant initially said he had had a Bible in China which he left at the home in which the church services were conducted before saying that he had not had a Bible in China;

   iv)although the applicant claimed to have joined a house church in August 2010, he did not know what kind of people attended, their names or how long the church had been operating. The Tribunal noted that the applicant had claimed that the house church leader was called “bishop” even though information indicated that no one in a small house church would have that title.  He also did not know why the church had been raided in February 2011 or how the police had known about it;

   v)the applicant conceded that during his departmental interview he had been unable to answer questions about Jesus and the Bible and explained this by saying that he had only read the Bible at house church gatherings.  The Tribunal found that the applicant’s religious knowledge had been gained after his departmental interview.  Although at its hearing he had been able to answer simple questions about Christmas and Easter and describe his favourite part of the Book of Revelation, the Tribunal inferred that he had learnt those things in Australia; and

   vi)the applicant’s description of the police raid was very brief and his claim that his house church had been raided was not consistent with country information.  The Tribunal found that the applicant’s home church, which had twenty members but no name, was not involved in political activities, had no links to other churches in China or abroad and did not appear to fall into the category of churches likely to be targeted by the authorities in China.  It noted, as it had put to the applicant, that although crackdowns occurred in the applicant’s home area, the vast majority of unregistered churches were left alone, particularly those with fewer than thirty to forty members, no foreign links, political motives or ability to attract money from abroad;

   b)for the following reasons the Tribunal found that the applicant’s activities since his arrival in Australia were not consistent with his claim to have travelled to Australia for the sole purpose of gaining religious freedom and avoiding arrest because of his involvement with a house church:

   i)the applicant had made no effort to locate a church which conducted services in Mandarin or had Bibles or other written material in Chinese.  The Tribunal noted that the applicant had said that he had attended an English speaking church in Campsie, even though there were Chinese churches there, because he had not been familiar with the suburb and had been taken to the church by a friend.  He also said that he had attended an English speaking church in Newcastle where he had moved because his friend could take him there.  The Tribunal noted that the applicant had been unable to provide the name of the church in Newcastle or its minister’s full name and had been relying on his friend to understand the services;

   ii)the applicant had never owned a Bible in Chinese and had an English language Bible which he could not read.  The Tribunal noted that although the applicant claimed at its hearing that he had read religious material in Chinese online, when invited to visit one such religious website, he was unsuccessful in doing so;

   iii)the applicant had shown no interest in being baptised.  The Tribunal noted that his evidence had been that he had never asked about being baptised in China and had not been baptised in Australia because he had only attended church a few times.  It further noted that he had said that he intended to ask the minister to baptise him and was preparing to be baptised but when asked what his preparation entailed, he said that when his friend returned he would ask him to ask the minister; and

   iv)the applicant delayed applying for a protection visa for one year after his arrival in Australia;

   c)based on its findings concerning the applicant’s credibility, the Tribunal did not accept that he had considered himself a Christian while in China or that he had been a member of a house church there. The Tribunal therefore rejected the applicant’s claims about the Chinese authorities’ interest in him. It went on to find that it was possible that the applicant had attended churches in Australia. However, having found that his claims to be a Christian were not credible, noting his lack of effort to locate a Chinese language church or Bible or to be baptised and his delay in lodging his protection visa application, the Tribunal was not satisfied that the applicant had participated in church activities in Australia other than for the purpose of strengthening his claim to be a refugee. Therefore, pursuant to s.91R(3) of the Act, the Tribunal disregarded that conduct when considering the applicant’s claimed fear of persecution.

Proceedings in this Court

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

   1.RRT did not believe that I am an Christian in a house church.

   2.RRT did not believe that I will have big problems if I return to my country.

   3.The decision made by RRT is not fair.

Grounds 1 and 2

1. It was noted earlier in these reasons that the Court cannot rehear the applicant’s application for a visa and that its role is to determine whether the Tribunal’s decision was affected by jurisdictional error.  That means that even if the Court disagrees with the Tribunal’s findings and decision, any such disagreement does not provide a basis to set the Tribunal’s decision aside.  Something more is required, namely, jurisdictional error on the part of the Tribunal. 

2. The first and second grounds of the application made no allegation of jurisdictional error.  Rather, they expressed disagreement with the findings made by the Tribunal in its decision on the merits of the application.  Implicitly, the applicant invited the Court to set aside the Tribunal’s finding that it did not believe he had been an active Christian in China or, for that matter in Australia, and its decision on the merits of his application, and replace them with something more favourable to him. 

3. Because the Court’s role is limited to determining the existence or absence of jurisdictional error, it cannot do what the applicant impliedly seeks in the first and second grounds of the application.  Put another way, the allegations in question do not seek to identify jurisdictional error on the Tribunal’s part and instead concern themselves with the merits of the visa application.  For these reasons, the first and the second grounds of the application do not disclose a basis upon which the Tribunal’s decision might be set aside.

Ground 3

1. The applicant did not explain what was meant by the allegation made in the third ground of the application, that the decision of the Tribunal had not been fair. However, it should be observed that he did not point in the context of this allegation to any procedural unfairness on the part of the Tribunal under div.4 of pt.7 of the Act or otherwise suggest that the Tribunal was biased. In such circumstances, it must be assumed that the applicant meant that a different decision would have been fairer in the sense of more advantageous to him.

2. While that is an understandable position for the applicant to adopt, it does not amount to a basis upon which the Tribunal’s decision can be set aside.  The Court’s power to make such an order is limited to situations where the Tribunal did not observe the law in the manner in which it conducted the review or the way in which it reached its findings.  The Court cannot conduct an inquiry to the applicant’s entitlement to a protection visa or, as I have already said, substitute its own views of the merits of his visa application for those of the Tribunal. 

Submissions at the hearing of this application

1. At the hearing of this application, the applicant said that he had not obtained a copy of the sound recording of the Tribunal hearing, apparently because he was not told he could get one and only found out that he could after people had told him.  He said that he could not remember what he had said at the Tribunal hearing.  This information provided by the applicant does not provide a basis to find jurisdictional error on the Tribunal’s part because it concerned events after the Tribunal made its decision.  To the extent that the information related to the preparation of the applicant’s case in this Court, no submission was made in connection with it.

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 fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  2 October 2014