SZTHW v Minister for Immigration

[2014] FCCA 244

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHW v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 244

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1

Applicant: SZTHW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2266 of 2013

Judgment of: Judge Nicholls

Hearing date: 4 February 2014

Date of Last Submission: 4 February 2014

Delivered at: Sydney

Delivered on: 4 February 2014

REPRESENTATION

Applicant In Person

Appearing for the Respondents: Ms L Stewart

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 24 September 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2266 of 2013

SZTHW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 September 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 August 2013, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. The Minister has filed a bundle of relevant documents in these proceedings (“Court Book” – “CB”) from which the following may be seen.

2. The applicant is a citizen of the People’s Republic of China (“China”) (CB 1). He arrived in Australia on 15 April 2012 (CB 3). He applied for a protection visa on 13 July 2012 (CB 1 to CB 28). He was assisted in this application by a registered migration agent (CB 24).

3. The applicant’s claims to protection were initially set out in a written statement attached to his application (CB 33 to CB 34). The applicant claimed that in March 1999 he obtained a “business visa to Europe” and spent the next ten years in Belgium (CB 33.4).

4. During this time, his wife continued her practice of Christianity and attended “house church” gatherings (CB 33.3). The police put his wife under surveillance in April 2006 when she first came to the notice of Chinese authorities (CB 33.5).

5. His wife was “caught” and detained by police on two occasions for organising “superstitious propaganda and [publishing] reactionary speech” (CB 33.6). On the first occasion in October 2008, the applicant returned to China to assist his wife. While his wife was detained in a labour camp, he was taken to the police station and interrogated on suspicion that he would assist in his wife’s activities (CB 33.7).

6. After the second occasion of his wife’s detention in October 2009, the applicant was himself suspected of supporting his wife’s activities when he sought to protest her detention (CB 34.4). He claimed that he was kept under surveillance and threatened with arrest and detention unless he “confessed” to his wife’s crimes (CB 34.5).

7. The applicant further claimed that his wife insisted that they divorce because she did not want him and their daughter to be affected (CB 34.6). She urged him to go overseas. After he arrived in Australia he met church members and attended church services (CB 34.7). He was told by a church member that he could apply for a protection visa.

8. The applicant was interviewed by the delegate (CB 47). The delegate did not find the applicant’s claims “convincing” and refused his application for a protection visa. She gave reasons for this, including his lack of knowledge of any Christian doctrine and the implausible and inconsistent account of his claimed treatment at the hands of the Chinese authorities (CB 51 to CB 52),.

The Tribunal

1. The applicant applied for review to the Tribunal on 23 December 2012 (CB 56 to CB 60). He was represented by the same migration agent (CB 58). The Tribunal wrote to the both the applicant and applicant’s migration agent and advised that the migration agent’s registration as a migration agent had been cancelled (CB 65 to CB 68).

2. The applicant then appointed the same migration agent as his “authorised recipient” for the purposes of receiving correspondence on the basis that she was his “friend” (CB 69).

3. The applicant attended a hearing before the Tribunal on 27 August 2013. The Tribunal recorded that the applicant’s evidence was that, contrary to what he had stated in writing, he did not believe in God until he came to Australia. The applicant gave evidence that if he were to return to China he would believe in God, but would not go to Church or discuss his beliefs with other people ([7] – [9] at CB 88).

4. The Tribunal found that the applicant had attended church in Australia, but disregarded this conduct pursuant to s.91R(3) of the Act, relevantly for the purposes of the criterion set out at s.36(2)(a) of the Act. The Tribunal gave reasons for this probative of the evidence before it ([11] at CB 88 to [12] at CB 89).

5. The Tribunal considered whether the applicant would be perceived, even as it said “unjustifiably”, to have brought superstitious beliefs from overseas to China. The Tribunal found he would not be perceived in that fashion and made findings explaining this that were reasonably open to it ([14] at CB 89 to [18] at CB 90).

6. The Tribunal found he did not have any difficulties in China because of religion, nor that, on return, to be perceived as being a Christian or bringing superstitious beliefs to China ([19] at CB 90).

7. The Tribunal recorded that, during the hearing, it became apparent that the real reason the applicant left China was that he had been approached by “some corrupt police officers” who occasionally sought money from him thinking he was wealthy because he had been working overseas ([18] at CB 90).

8. The Tribunal accepted that he had intermittently been approached but, in the circumstances presented by his evidence, including that he could avoid them by not opening his door, this would not amount to “serious harm” or persecution ([23] at CB 91).

9. The Tribunal separately considered the complementary protection criterion. It found that there was no real chance that he would suffer significant harm because of religion, or any perception arising from his former wife’s religious practices ([26] at CB 91 to [30] at CB 92).

10. The Tribunal further relied on the applicant’s own evidence to find that there was a “real risk” that the corrupt police officers would continue to make demands of money, but that in the circumstances presented this would not lead to the applicant being “significantly harmed” in the sense contemplated by the Act ([30] at CB 92).

Application Before the Court

1. The application to the Court consists of three paragraphs of lengthy narrative, which take issue with certain findings made by the Tribunal.

Before the Court

1. At the first Court date in this matter the applicant appeared in person and was assisted by an interpreter in the Mandarin language. I explained to the applicant that the Court could not review the merits of the Tribunal’s actual findings. He was referred to a lawyer on the then panel of the Refugee Review Tribunal Legal Advice Scheme (“RRTLAS”). The matter was set down for hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2. At the hearing today, the applicant again appeared in person and was again assisted by an interpreter in the Mandarin language. Ms L Stewart appeared for the Minister.

3. The applicant stated that he did not speak to the lawyer who had been assigned to provide him legal advice. He initially said that he did not receive any written advice. When I pointed out to the applicant that there was a certificate on the Court’s file from the lawyer that written advice had been sent to him, the applicant said that he may not have known or recognised it as being legal advice because he could not read English. In any event, I note that there is no entitlement to legal advice in these circumstances (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702).

Consideration

1. The issue for the Court today is whether the application before the Court raises an arguable case for the relief sought. On its face the application seeks the quashing of the Tribunal decision and the return of the applicant’s matter to the Tribunal for reconsideration. For the reasons that follow the application does not raise any such arguable case and should be dismissed.

2. In essence, the application to the Court seeks to challenge some of the factual findings and conclusions made by the Tribunal and thereby seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Ground One

1. Ground one takes issue with the Tribunal’s conclusion that he would believe in God on return to China, but would do nothing more. That is, that he would not attend church or engage in other church related activities. This is also one of the two points raised by the applicant in his oral submissions today. At best, the applicant’s submissions can be understood as being that the Tribunal misunderstood or misapplied his evidence in that what he meant by that statement that he would believe in God included that he would attend services or attend at the local church, and would be involved in its activities.

2. It would appear that the applicant’s complaint is directed to what the Tribunal recorded at ([9] at CB 88):

   “When asked what he would wish to do in terms of religious practice if he returned to China he said unequivocally that he just wanted to believe in God. Asked if he would like to do anything more, he said he would not. In other words he did not wish to go to church or discuss his claimed belief with other people.”

   [Emphasis Added see [30] below]

3. Contrary to the applicant’s complaint that this was not a conclusion reached by the Tribunal, this is plainly a reporting of the Tribunal of the applicant’s evidence at the hearing. This is plain both by its terms and its location in the decision record.

4. Despite opportunity the applicant has not provided any evidence to the Court, for example by way of transcript, to challenge the Tribunal’s reporting of the words that he used, nor evidence on which it can be said that the Tribunal misunderstood his evidence to it, such that it can be said that the Tribunal misunderstood or misconstrued his claims to protection. On this basis, the Court can only proceed on the evidence that is actually before it. The Tribunal’s account, which is before the Court in an evidentiary context, therefore, remains unchallenged in that regard.

5. The applicant’s complaint, both orally and in writing, appears to confirm the factual content of the Tribunal’s account. That is, that he would “just” believe in God and do nothing else. The applicant now asserts that when he said he would just believe in God, he also meant that he would attend Church and discuss his beliefs with other people.

6. There are a number of difficulties for the applicant beyond the lack of provision of a transcript of what was said at the Tribunal hearing.

7. First, on the only evidence before the Court, the Tribunal’s account, the use of the word “just” which the applicant says in his ground that he “confirmed”, would, in itself, run counter to his assertion now that he meant more than what was plainly expressed in the words that he would believe in God.

8. Second, on the evidence presented there is nothing to show that the Tribunal was mistaken in its understanding that what the applicant meant was that he did not wish to go to church or discuss his beliefs.

9. The applicant was given, on what is before the Court, the opportunity to present his claims at the Tribunal hearing, and to explain his claims. If the applicant now says that he meant more than the actual words that he used, then there is nothing to explain, or to show why he did not proceed to give a fuller account of his situation than that which the Tribunal records.

10. Third, the actual relevant conclusion reached by the Tribunal was that it could not be satisfied that the applicant believed in God or considered himself to be a Christian. On what was before it, as informed by the evidence before the Court now, that finding was reasonably open to the Tribunal.

11. In saying this it should also be noted that the Tribunal found that the applicant did not meet either of the criteria for a protection visa and relied on many other findings not challenged by the applicant now. Importantly, the applicant does not challenge the Tribunal’s finding that the “real” reason he came to Australia was to avoid approaches from corrupt police and was not related to any matters of religion (see further below).

Ground Two

1. Ground two of the application to the Court appears to take issue with the Tribunal’s application of s.91R(3) of the Act. However, it is no more than a challenge to a number of findings made by the Tribunal. The applicant asserts he feared “persecution” if he were to return to China on the basis that he attended church in Australia.

2. The Tribunal’s conclusion that he did so for the sole reason of enhancing his claims to be a refugee was based on reasoning and findings reasonably open to the Tribunal on what was before it. In these circumstances the Court cannot intervene to substitute a different finding of fact. Nor can I say, bearing in mind relevant authority, was the Tribunal’s application of s.91R(3) of the Act attendant with any other legal error (Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40).

Ground Three

1. The third ground of the written application restates the applicant’s claims regarding the corrupt police and asserts that he would be “persecuted” for this reason if he were to return to China. This was also the second matter raised by the applicant in his submissions before the Court today. He explained to the Court that he would be subject to blackmail and that this would impact on his capacity to have a normal life. A number of things must be noted.

2. First, it is important to note that the applicant’s claims as to past events in China in this regard, that is the approaches made to him by the corrupt police, were accepted by the Tribunal. (See [23] at CB 91).

3. Second, as the applicant confirmed before the Court today, the material before the Court in the Court Book reveals that the applicant put this particular issue to the Tribunal, at the hearing.  It is simply that the Tribunal, as I said earlier, found that, notwithstanding that the applicant may be intermittently approached, such approaches did not rise to the level of serious or significant harm. It may well be that another Tribunal member may have taken a different view of this evidence and this claim and, indeed, may have come to a different conclusion. But the question for the Court is whether it was reasonably open for this Tribunal member, on the evidence before the Tribunal member, to make the findings and come to the conclusions that the Tribunal did.

4. In this regard, while, as is often said, minds may differ, given that the Tribunal’s findings were reasonably open to it and probative of the material before it, it cannot be said that the Tribunal’s conclusion in this regard was unreasonable or, for that matter, irrational or illogical such as to reveal jurisdictional error. (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 at [131] per Crennan and Bell JJ and the judgment of Heydon J, see also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1). In terms of the test that the Court is required to apply today, it cannot be said that an arguable case has been raised.

5. In any event, the applicant’s complaint is to take issue with the Tribunal’s finding that it could not be satisfied that this would constitute “serious harm”. To the extent that the Tribunal relied on the applicant’s relevant evidence as to events in the past, then it is not open to the Court to intervene and substitute its own findings. The Tribunal’s finding here was reasonably open to it on what was before it.

Conclusion

1. None of the applicant’s grounds, nor what he put to the Court today, raise an arguable case for the relief sought. It is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

Costs

1. It is appropriate that an order for costs be made in this matter. There is nothing that I can see that has been put by the applicant or, indeed, otherwise that would argue against making the order in the normal course of events. As to the amount that the Minister seeks, I am satisfied on what is on the Court’s file that it is a reasonable amount, having regard to the actual work that has been done by the Minister’s solicitors in responding to the application.

2. The applicant raises before the Court, the method of payment. In the circumstances presented that is a matter appropriate for the applicant to discuss with the Minister’s representatives, and for the parties to resolve between themselves.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  17 February 2014