SZTLA v Minister for IMMIRGATION

[2015] FCCA 540

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLA & ORS v MINISTER FOR IMMIRGATION & ANOR [2015] FCCA 540

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.11.11, 44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 40
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46

First Applicant: SZTLA

Second Applicant: SZTLB

Third Applicant: SZTLC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2609 of 2013

Judgment of: Judge Nicholls

Hearing date: 23 February 2015

Date of Last Submission: 23 February 2015

Delivered at: Sydney

Delivered on: 23 February 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondent: Ms R Krishnan of Australian Government Solicitor

ORDERS

1. The application made on 25 October 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first and second applicants pay the first respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2609 of 2013

SZTLA

First Applicant

SZTLB

Second Applicant

SZTLC

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made to this Court on 25 October 2013 pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 September 2013, which affirmed the decision made by the delegate of the respondent Minister to refuse protection visas to the applicants.

The Issue

1. It is important to note that the application was set down for a hearing, pursuant to part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). That is, it is a “show cause” hearing.

2. In that light, the issue before the Court now is whether the grounds of the application raise an arguable case for the relief sought. In essence, the applicants seek that the Tribunal decision be quashed and returned to the Tribunal for reconsideration. 

3. Following such a hearing, if the Court cannot be satisfied that an arguable case is raised against the respondent, the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Background

1. In this case, the Minister has filed a bundle of relevant documents, and this is now in evidence before the Court (“the Court Book” – “CB”). The Minister has also filed written submissions. I note that the applicants have filed nothing further in support of the application, despite the opportunity that had been given to them by orders made at the first Court date in this matter (some 14 months ago).

2. The Minister’s written submissions set out the relevant background, a summary of the claims to protection, and a summary of the Tribunal’s decision.

3. Having regard to the material in the Court Book, I am satisfied that this is a reasonable summary of those three matters, and for convenience I adopt the Minister’s written submissions for the purposes of this judgment (see [3] – [11]):

   “[3] The first applicant is a citizen of the People’s Republic of China (PRC) (RD 13). She came to Australia on a student visa on 8 August 2007. The second applicant is also a citizen of the PRC (RD 28). He came to Australia on a student visa on 19 April 2008. Since December 2011, they have been in a de-facto relationship. They applied for PVs on 11 May 2012 (RD 1-33). The third applicant is their daughter, an infant, who was born in Australia on 8 August 2012 (RD 50).

   [4] On 1 November 2012, the first applicant attended an interview with the Department (RD 59). On 11 February 2013, a delegate of the Minister refused the PV (RD 66-83). On 7 March 2013, the applicants applied to the Tribunal for review

   
   

   (RD 84-88). On 20 August 2013 they attended a hearing before the Tribunal (RD 102) and on 25 September 2013, the Tribunal affirmed the delegate’s decision (RD 134-147).

   CLAIMS

   [5] The first applicant claimed that she will be persecuted if she were to return to the PRC for being a practising member of an underground Catholic church. The other applicants did not make separate claims for protection. Specifically, the first applicant claimed (RD 137-139):

   – She was born into a Catholic family and is committed to the Catholic religion. Her parents attended secret underground church gatherings (with a church not sanctioned or registered by the state)

   – In April 2006, her parents were arrested at an underground church gathering, detained for 3 days and fined

   – On 1 January 2007, she was baptised in a registered church

   – In April 2008, her parents were arrested at another underground church gathering. Her father was released on bail. Her mother was detained for 3 months and released after her father paid a fine

   – The head of their village threatened to report underground church activities to the authorities, because she refused to marry him

   – The authorities often came to her parents’ home to check on her.

   TRIBUNAL’S DECISION

   [6] In a decision dated 25 September 2013, the Tribunal affirmed the delegate's decision (RD 134-147).

   [7] The Tribunal found the first applicant was not a credible witness for the following reasons:

   – Her evidence about her religious activity and that of her parents was ‘vague and ‘evasive’: RD 142-143 at [45]

   – Her account was not credible. She gave evidence that she had not attended registered church services often when she was growing up, and that she had only attended one underground church service. She was only baptised in 2007. For the Tribunal, it was difficult to understand why she had such a limited association with either the registered or underground church, or why she was baptised so late, if both her parents were Catholic as claimed. Country information indicated that baptism was important to Chinese Catholics, and can be done provisionally by family members if priests are not available: RD 143 at [46]

   – Her knowledge of the differences between the registered and underground churches was extremely vague. She was unable to identify specific examples of how worship in the underground church differed to that in the registered church: RD 143 at [48]

   – She was unable to satisfactorily explain her long delay in applying for a PV: RD 144 at [51]

   – Her evidence of the threats allegedly made by the village head was vague, brief and lacking in detail: RD 144 at [52].

   [8] The Tribunal gave ‘little weight’ to the first applicant’s supporting documentation because country information indicated that fraudulent documents were readily available in the PRC: RD 144-145 at [53]. It also found that the first applicant’s account of how she acquired the documentation was vague and contradictory: RD 144-145 at [53]. Similarly, the Tribunal gave ‘little weight’ to evidence from a Father McGee that the first applicant was regularly attending church in Australia. That evidence relied on instructions from the first applicant herself as to when she commenced that church attendance: RD 145 at [57]. However, the Tribunal accepted that the first applicant’s religious activity in Australia may have become genuine over time. Accordingly, it was not satisfied that activity had been for the sole purpose of strengthening the first applicant’s claims: RD 146 at [59].

   [9] Ultimately, the Tribunal found that the first applicant was never a Catholic in the PRC, and that the authorities had never had any adverse interest in her or her parents. It also found that the village head had never threatened any of them: RD 145 at [55].

   [10] Nevertheless, the Tribunal went on to consider whether any of the applicants would face a real chance of serious harm should they choose to attend the underground church on their return to the PRC (more specifically, in Fujian, the first applicant’s home province). Country information indicated that Fujian was generally tolerant in dealing with unregistered Catholic churches: RD 146-147 at [61], [63]. The Tribunal therefore answered this question in the negative for each applicant: RD 147 at [63].

   [11] The Tribunal also found that none of the applicants would suffer significant harm should they return to the PRC: RD 147 at [64]-[66].”

Before the Court

1. Pursuant to r.44.13(1) of the FCC Rules, at a show cause hearing in migration matters, applicants are confined to the grounds that are actually raised in the application. The grounds in the application before the Court are a series of three numbered paragraphs, which can really be described as being a narrative that seeks to challenge various factual findings made by the Tribunal.

   “1. The Refugee Review (the Tribunal) did not review this case in a justice way. The Tribunal quoted document to show that a. the underground church and the public church are equal for believers and b. the Catholics are free to attend both type of the churches above, especially in Fujian Province (Decision Record, para. 33 to 40). This quotation did not reflect the facts. There are two basic truths about Catholics in China. Firstly, underground or unregistered Catholics and Protestants vastly outnumber those Catholics belonging to the official churches. Literally scores of millions of China’s Catholics prefer to remain in illegal gatherings rather than submit to the invasive monitoring involved in government registration and mandatory membership in party-run ‘Patriotic’ religious organizations. Their desire to run their own churches has resulted in them being called house churches or underground churches as they traditionally hold their meetings in believer’s homes. Secondly, the level of persecution aimed against unregistered Catholics in China is very high. This campaign against ‘illegal organizations’ is centrally directed, and involves Maoist-style propaganda, and which fosters Cultural-Revolution-levels of surveillance, and interference and police abuses including torture. But due to the underground nature of the plight of these Catholics, observers have difficulties in proving the importance and numbers of the underground religious organizations and the government’s harsh response. To prove these truths would require to bring victims up into the media spotlight, exposing them to further persecution. And documentary evidence has been hard to uncover due to the covert nature of the government campaign.

   2. The Tribunal challenged my baptism time and unreasonably refused my explanation. My parents are genuine Catholics who were involved in the Catholic Church in China. The truth ignored by the Tribunal is that when I was little the local church was under very severe surveillance and that’s why my baptism was delayed and I was afraid my classmates would discriminate against me. Thus, I was baptized at a later time.

   3. The Tribunal under evaluated the risk of serious harm that I will face if going back to China. I was afraid of revenge from the head of the village. Although it was a long time ago, my refusal of the marriage proposal was a long time ago I would face harm for this reason at any time, since Chinese Culture always encourage people to make revenge. My family faced threats, for example, the village head threatened my parents he would report their gatherings to the village.”

   [Errors in the original.]

2. Before the Court today, the first applicant (“the applicant”) appeared in person. She was assisted by an interpreter in the Mandarin language. The third named applicant is an infant child. I note that the applicant was appointed as the litigation guardian of the third applicant at the first Court date on 18 December 2013, pursuant to r.11.11 of the FCC Rules. The applicant told the Court that she would speak on behalf of the second applicant. Although the second applicant, her de facto partner, had remained outside the Court room after the hearing commenced, I gave him the opportunity to come into Court and to make any submissions that he wished to make.

Consideration

1. The grounds seek that this Court engage in impermissible merits review of the Tribunal’s decision.  In that circumstance, they do not raise an arguable case for the relief that the applicants seek. Having regard again to the background in this case, it is relevant to note that the claims to protection were only advanced by the applicant.  The second applicant, her de facto partner, confirmed to the Tribunal that he was not making any separate claims in his own right ([21] at CB 138 and [31] at CB 139). Nor were there any separate claims advanced on behalf of their infant child ([31] – [32] at CB 139).

2. The core of the applicant’s claim to fear harm on return to China was said to be based on her, and her family’s, Catholic Christian beliefs and practice.

3. The Tribunal did not find the applicant to be a credible witness in relation to her claim to have been a Catholic in China, and to have practised as a Catholic in China.  It did not believe the applicant’s entire factual account of claimed relevant events in China, and found that she had fabricated her claims in this regard.

4. The Tribunal’s findings, and its conclusion as to her lack of credibility, were all reasonably open to the Tribunal to make on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 40). On any plain reading of the Tribunal’s decision record, the Tribunal gave cogent reasons for its state of disbelief, and provided reasons which were probative of the material before it. The Tribunal’s findings, and its conclusion as to the applicant’s credibility, were all within jurisdiction.

5. In seeking to challenge these findings, and this conclusion, the narrative grounds of the application to the Court cannot be said to raise an arguable case for the relief that the applicants seek. 

6. The Tribunal accepted that the applicants attended a Catholic church in Australia, albeit not for the period that the applicant had claimed. The Tribunal was not satisfied that this was done for the sole purpose of strengthening her claims to protection. The evidence of a Catholic priest, who gave evidence in support of the applicants, was influential in the Tribunal’s analysis in this regard (see [59] at CB 146).

7. However, the Tribunal had regard to relevant country information. Based on the Tribunal’s references to what occurred at the Tribunal hearing, this was discussed with the applicant. I note that the applicants have not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. In light of that country information, the Tribunal found that the applicants would not suffer serious or significant harm on return for reason of having practised Catholicism in Australia. Further, that the applicant had not been of adverse interest to the authorities in the past.  Again, these findings were all reasonably open to the Tribunal on what was before it.

The Applicants’ Oral Submissions

1. Before the Court, the applicant, essentially, made two complaints to the Court. The first was that the Tribunal’s decision was not a “fair” decision. I understood this to be a complaint that the decision was not the “right” or “correct” decision. I understood this to be directed to the outcome of the Tribunal’s analysis. That is, the Tribunal’s conclusion that the delegate’s decision should be affirmed, and the applicants should not be granted protection visas. 

2. It is the case that applicants before the Tribunal are entitled to a fair hearing and a fair process during the conduct of the review by the Tribunal. However, that does not include, or mean, that they have any entitlement to what they would regard as being the “correct” decision. At best, the applicant’s complaint was particularised to be that the Tribunal should not have found adversely to her credit and that this was not “fair”.

3. In short, as I said, that while entitled to a fair process, the applicants are not entitled to what they would regard as the correct or advantageous decision (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1). The Tribunal’s findings as to the applicant’s credit were reasonably open to it on what was before it, and therefore, were within jurisdiction.

4. The second complaint made before the Court today was, in essence, to challenge country information on which the Tribunal relied.  In essence, I understood the applicant to seek to argue that conditions for “Catholic Christians” in China were not as the Tribunal had found, and as derived from country information before it.

5. It is the case that the choice and weight to be accorded to country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 “NAHI”). The applicant, therefore, seeks impermissible merits review from the Court.

6. The second applicant made a series of comments to the Court complaining about the lack of parental support in China and his responsibilities as a husband to obtain a property, to work and to support his family. When I asked how these matters were relevant to any revelation of legal error on the part of the Tribunal, the second applicant was unable to assist the Court in that regard.

7. It may be that the second applicant was seeking to explain to the Court why he could not go back to China and that conditions in China were less favourable to him, and his family, than the situation in Australia. This also seeks impermissible merits review from this Court, and does not raise an arguable case for the relief that the applicants seek.

Ground One

1. Ground one of the application, appears to complain that the Tribunal found that they would not face harm in China because the “underground”, and “registered churches” were “equivalent” in China for Catholics. That is, that as claimed adherents of the underground Catholic Church they could practice in the registered Catholic church. The complaint is that the Tribunal found there was no difference between the two churches. The specific complaint appeared to be that the Tribunal found that Catholics are able to attend either church in China.

1. In relation to the first complaint the Tribunal found ([34] at CB 140):

   “On doctrinal matters, there appears to be little difference between the two churches and it is difficult to distinguish members of the underground and open churches solely on the basis of their practices and rituals. Like Catholics around the world, both the official and the underground churches believe in the truth of the Bible, as interpreted by the church, accept the authority of priests to administer the sacraments, practice the seven Catholic sacraments of baptism, eucharist (or communion), reconciliation (or confession), confirmation, holy orders, matrimony, and anointing of the sick, and believe in the concepts of sin, heaven, hell, salvation, miracles, god’s grace, and the importance and divinity of Jesus. Similarly Mary is revered by Chinese Catholics, and a Marion Cult of devotion and prayer to Mary is strong in China. ”

2. Having regard to the country information before the Tribunal, the Tribunal’s finding was, again, reasonably open to it. No arguable case arises in these circumstances.

3. In relation to the second complaint, the Tribunal actually found, based on country information before it, that there were few reports of problems for Catholics in the applicant’s home province ([37] at CB 141).

4. In any event, to the extent that the ground of the application appears to argue that underground church members face persecution in the applicant’s home province, and that that would cause difficulties for her on return, the Tribunal found, based on country information, that the authorities in her home province were generally tolerant in their dealings with underground unregistered Catholic churches.

5. Again, the ground seeks impermissible merits review given that this finding was reasonably open to the Tribunal to make. Further, the weight to be accorded to this country information, and the view that the Tribunal took of that country information was a matter for the Tribunal (NAHI at [11] – [13] per Gray, Tamberlin and Lander JJ, Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J (as he then was) and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45] per Spender, Moore and Foster JJ).

6. The Tribunal’s conclusion that the applicants would not suffer harm on return to China if they were to attend such unregistered churches was reasonably open on the material before it, and no arguable case arises here.

7. For the remainder, ground one makes factual allegations or assertions about the situation for Catholics in China. It is trite to say that this Court cannot intervene to substitute its own findings of fact for those of the Tribunal. The applicants seek impermissible merits review in this regard. In all, therefore, ground one of the application does not raise an arguable case for the relief the applicants seek.

Ground Two

1. Ground two complains about the Tribunal’s rejection, and finding, concerning the applicant’s explanation as to the reason that she, who claimed to come from a Catholic family and to have practised Catholicism in China, was not baptised until 2007 when she was 18 years old. It had regard to her claim that her parents were active members of the underground Catholic Church and found the applicant’s explanation as to why she waited until she came to Australia to be baptised in a “registered Catholic Church” as being unpersuasive. The Tribunal’s finding that it was not persuaded by the applicant’s various explanations for this ([46] – [47] at CB 143), were, again, reasonably open to it. The applicant seeks to challenge the factual findings made by the Tribunal.  No arguable case arises here.

Ground Three

1. Ground three complains that the Tribunal erred in its evaluation of the risk of harm the applicants would face on return to China, given that the applicant had refused to be married to the head of her village. She claimed he would seek revenge. Again, it is clear on a plain reading of the Tribunal’s decision record, that this was a claim made to the Tribunal and considered by the Tribunal. However, the Tribunal found that the applicant’s evidence about this matter was vague and unpersuasive ([52] at CB 144).

2. In this light, and given its concerns about the applicant’s credibility in general, the Tribunal found that she, and her parents, had not been threatened by the head of the village as she had claimed, and that she had not come to the attention of the head of the village ([55] at CB 145 and [64] at CB 147). Again, these findings of fact were reasonably open to the Tribunal. The applicant seeks to challenge these findings of fact and no arguable case arises.

Conclusion

1. As I said earlier, at a show-cause hearing the applicants are confined to the grounds of the application as they are pleaded.  Those grounds do not reveal any arguable case for the relief that the applicants seek.  In any event I have had regard to the matters raised by the first and second applicants today. Those matters also do not assist the applicants in raising an arguable case for the relief sought.

2. It is appropriate in the circumstances, therefore, that the application to the Court be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order in that regard.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  10 March 2015