SZTKW v Minister for Immigration

[2014] FCCA 1351

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKW & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1351

Catchwords:
MIGRATION – Review by Refugee Review Tribunal – application for order dismissing application because it raises no arguable claim for relief – no arguable claim for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

First Applicant:

Second Applicant:

SZTKW

SZTKX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2598 of 2013

Judgment of: Judge Manousaridis

Hearing date: 30 April 2014

Delivered at: Sydney

Delivered on: 27 June 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Mr L Dennis

Sparke Helmore Lawyers

ORDERS

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

2. The applicants pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2598 of 2013

SZTKW

First Applicant

SZTKX
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are husband and wife, and are citizens of the People’s Republic of China.

2. On 29 October 2012 the applicants applied to the first respondent (Minister) for a protection visa. The first applicant (applicant) claimed she feared persecution in China because she was a Christian.

3. A delegate of the Minister rejected the application, and the Tribunal, by a decision made on 26 September 2013, affirmed the delegate’s decision.

4. On 24 October 2013 the applicants applied for judicial review of the Tribunal’s decision. At the first court date of that application, the Minister indicated that he wished to move for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR) dismissing the application on the ground that it raises no arguable case for the relief the applicants seek.

5. These reasons, therefore, consider whether the applicants have an arguable case for the relief they seek. To determine that issue, it will be necessary to set out the claims for a protection visa that were considered by the Tribunal, and the reasons the Tribunal rejected those claims.

Facts

1. The applicant’s claims for a protection visa, as summarised by the Tribunal’s reasons, was based on the following asserted facts:

   a)In December 2007 the applicant became a Christian in China and began to regularly attend family churches every Sunday.[1]

   b)On 20 February 2011 police went to a service and arrested the participants, including the applicant. The police demanded the applicant identify all other church members, and when she refused to do so she was beaten and detained for fifteen days.[2]

   c)The applicant was released from custody on 7 March 2011, but only after she was coerced into signing a statement promising not to participate in family churches.[3]

   d)The applicants came to Australia in November 2011 after the applicant’s husband was selected to work in Australia by his employer. Soon after the applicants arrived in Australia, the applicant found and began to attend a Christian church.[4]

   e)In February 2012 the applicant’s husband had an argument with his employer, as a result of which the applicants decided to return to China. However, when the applicants went to the airport on 23 February 2012, their flight was delayed, and the applicant told her husband that she wanted to stay in Australia because there was no religious freedom or human rights in China. The applicant’s husband agreed.[5]

   [1] CB100, [3]

   [2] CB100-101, [4]

   [3] CB101, [4]

   [4] CB101, [5]

   [5] CB101, [5]

Tribunal’s decision

1. The Tribunal did not accept the applicant as a witness of truth. The Tribunal relied on the following reasons:

   a)The Tribunal did not consider it credible that the applicants had attended the airport to return to China yet the applicant, at the airport, persuaded her husband to not go to China.[6]

   b)In any event, the applicant’s deciding to go the airport in the first place did not indicate she feared harm in China.[7]

   c)The applicant’s evidence suggested that the reasons the applicant left China for Australia was to work in Australia, not because the applicant feared harm in the future.[8]

   d)The delay and timing of the applicants’ lodging an application for a protection visa indicate that the applicants did not seek protection for the reasons the applicant claims they did.[9]

   e)The applicants did not attend an interview with the delegate, and the Tribunal did not accept the applicant’s explanation for not attending.[10]

   f)The applicant was not baptised until March 2013, and the Tribunal did not accept the applicant’s explanation for not having been baptised before that date.[11]

   g)The applicant displayed only a limited knowledge of Christianity.[12]

   h)The applicant’s involvement in the Kogarah Christian church “has been solely for the purpose of strengthening her claims for refugee status”.[13]

   i)The second applicant gave evidence that he was not a Christian in China and, although he attended some services with the applicant in Australia he has not been baptised. The Tribunal was not satisfied that the applicant’s husband would practice Christianity if he returned to China.[14]

   [6] CB102, [11]

   [7] CB102, [11]

   [8] CB103, [12]

   [9] CB103, [13]

   [10] CB103-104, [14]

   [11] CB104, [15]

   [12] CB104-105, [16]-[18]

   [13] CB105, [18]

   [14] CB105-106, [20]

2. The Tribunal, accordingly, was not satisfied that the applicant had a well-founded fear of persecution.[15] The Tribunal was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ being removed from Australia to China, there is a real risk that they would suffer significant harm.[16]

   [15] CB106, [21]

   [16] CB106-107, [22]

Grounds of review

1. The first ground of review is as follows:

   There exists a jurisdictional error. Some questions asked by Tribunal Member are misleading.

2. At the hearing the applicants, who were not legally represented made three submissions in relation to this ground. First, the Tribunal did not believe the applicant’s explanation for not attending an interview before the delegate. They submitted they did not receive a letter from the delegate inviting them to be interviewed. Second, contrary to what the Tribunal found, the flight to China the applicants were due to board was delayed. Third, the reason the applicants did not immediately attend church when they first arrived in Australia was because they did not have a familiarity with the local locations of churches.

3. In my opinion, neither the ground set out in the application, nor the submissions made at the hearing, disclose a reasonably arguable claim that the Tribunal made any jurisdictional error in affirming the delegate’s decision. The submissions indicate disagreement with findings made by the Tribunal on matters the Tribunal, and not this Court, had jurisdiction to decide.

4. The second ground of review is:

   Tribunal Member does not take into account my evidence which proves that I was prosecuted [sic] by Chinese government.

5. At the hearing, the applicant submitted that the Tribunal “did not carefully consider our evidence” and that the applicant really did fear persecution upon her return to China. The applicant submitted that the reason she did not get baptised in China was because she lived in the country area.

6. The applicant does not identify the evidence she claims the Tribunal failed to consider. In my opinion, however, the Tribunal did consider evidence the applicant gave that could be characterised as persecution. The Tribunal referred to the applicant’s claim that she was tortured and harmed in China, as well as being detained for fifteen days. The Tribunal also referred to the applicant’s claim that she will continue to believe in Jehovah if she returns to China. The Tribunal, however, did not accept the applicant’s claims.[17] The applicant’s second ground, therefore, discloses no arguable case that the Tribunal has made a jurisdictional error.

   [17] CB106, [21]

7. The third ground of review is that the applicants “wish the Federal Circuit Court of Australia could consider our situation”. That obviously does not disclose a reasonably arguable case that the Tribunal made a jurisdictional error.

Conclusions and disposition

1. The grounds raised in the application, and the submissions made at the hearing, amount to a contention that the Tribunal was wrong not to accept the applicant’s claims for a protection visa.

2. Although this Court has jurisdiction to review decisions of the Tribunal, the Court’s jurisdiction is a limited one. The Court cannot inquire into whether the Tribunal was correct, or made an error in concluding, that the applicants were not entitled to a protection visa. The Court can only enquire into whether the Tribunal made its decision according to law; or, to be more accurate, whether the Tribunal made the decision without committing a jurisdictional error. None of the grounds identify a reasonably arguable case that, in affirming the delegate’s decision, the Tribunal made a jurisdictional error.

3. Accordingly, I propose to order that the application be dismissed with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 June 2014