SZTMO v Minister for Immigration

[2014] FCCA 1350

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1350

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)
Schedule 1, Part 3, Division 1, item 2(b)

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: SZTMO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2745 of 2013

Judgment of: Judge Manousaridis

Hearing date:	14 May 2014
Delivered at:	Sydney

Delivered on: 27 June 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

ORDERS

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

2. The applicant pay the first respondent’s costs in the amount of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2745 of 2013

SZTMO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) applies for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR) that the application commencing these proceedings be dismissed.

2. To properly assess the Minister’s application, it is necessary to set out the grounds on which the applicant applied to the Minister for a protection visa, and the ground on which the second respondent (Tribunal) affirmed the decision of a delegate of the Minister who refused to grant the applicant the protection visa.

Grounds on which protection visa sought

1. The grounds on which the applicant claimed he was entitled to a protection visa, as set out in the Tribunal’s reasons, are based on the following asserted facts:

   a)The applicant is a citizen of the People’s Republic of China.

   b)The applicant’s grandfather and the applicant’s parents practised the Christian faith in underground house churches.

   c)In 1987 the applicant was dismissed by a company because of his Christian faith. The applicant then worked as a driver for the church earning a low income.

   d)Because of his Christian faith, the applicant was accused of counterfeiting money, as a result of which he was detained for four days. He was released after the applicant’s wife paid a fine of 15,000 yuan.

   e)The applicant was later arrested while attending a church gathering. That resulted in his being detained in a psychiatric hospital for a week, and the payment of a fine of 20,000 yuan.

   f)In 2008 the neighbourhood in which the applicant lived was demolished, but no compensation was paid to the applicant. This led to the applicant writing letters to the Chinese government expressing opposition to the demolition.

   g)When the applicant returned to China from visiting his daughter in Malaysia, he was arrested, and was asked to confess he had contacted a “foreign cult” in Malaysia, he was locked up for a week, and then released after paying a fine of 10,000 yuan.

   h)After he was released, the applicant and his wife decided they could not have a peaceful life in China. With the help of an elder of the church, the applicant and his wife came to Australia in August 2012.

   i)When he arrived in Australia, the applicant began to attend church.

Tribunal’s decision

1. The Tribunal was not satisfied the applicant had given truthful evidence in relation to his claims to be a Christian.[1] That was so for the following reasons:

   a)The Tribunal considered the applicant’s evidence to be “extremely confused, inconsistent and problematic”.[2]

   b)The applicant’s account of his experiences in China and his reasons for leaving China differed between his application for a protection visa, and his evidence before the Tribunal.[3]

   c)The applicant had an extremely limited knowledge of Christianity.[4]

   [1] CB113, [14]

   [2] CB113, [14]

   [3] CB115, [19]

   [4] CB115-116, [20]-[21]

2. The Tribunal was also not satisfied that the applicant gave truthful evidence of his employment or education in China, including his working as a driver for the church. It was not satisfied because of what the Tribunal held to be inconsistent evidence.[5] And the Tribunal did not accept that the applicant’s house had been demolished, or that the applicant had protested against the government, or that he had any adverse political profile in China.[6]

   [5] CB114-115, [15]-[17]

   [6] CB117, [25]

3. For these reasons, the Tribunal did not accept that the applicant had a well-founded fear of persecution in China on the ground the applicant was a Christian. Nor did the Tribunal accept that the applicant satisfied the criterion specified in s.36(2)(aa) of the Migration Act 1958 (Cth).[7]

   [7] CB118-119, [29]-[30]

Grounds of review

1. The application states three grounds of review.

Ground 1

1. The applicant’s first ground of review is:

   The Refugee Review Tribunal (RRT) did not fairly consider whether my case has a well-founded fear of persecution in China for Convention reasons. The Convention reasons raised relate primarily to my religion and my political opinion. I have given truthful evidence in relation to my claims to be a Christian, with different political opinion against Chinese government. I left China as a result of the demolition of my home, and my family’s political profile. But RRT did not make any efforts to evaluate the persecution I suffered because of my political opinion. There is a real chance that I will face harm in relation to my political opinion and my family’s profile upon my return to China. I genuinely fear harm in relation to this issue.

2. At the hearing, the applicant, who was not legally represented, made one submission in relation to this ground. The applicant submitted that the demolition of his house was not the only reason “it has cost me to come to Australia”.[8] The applicant said his family “owned a church before”.[9]

   [8] T4.5

   [9] T4.5

3. There is also no arguable case for the claim made in ground 1 that the Tribunal did not fairly consider the applicant’s claim to the extent it was based on a well-founded fear of persecution because of his religion. As my summary of the reasons of the Tribunal’s decision indicates, and as a reading of the Tribunal’s reasons will demonstrate, the Tribunal did consider the applicant’s claim. And there is nothing in the material to suggest that the Tribunal did not consider the claim fairly.

4. As to the submission made by the applicant at the hearing, he informed me that he did not submit to the Tribunal that his family owned a church in China. It follows that the Tribunal made no jurisdictional error by not considering the claim based on the applicant’s leaving China because his family owned a church in China.

5. In my opinion, therefore, ground 1 of the application for review discloses no arguable case for the granting of relief.

Ground 2

1. The second ground of review is as follows:

   RRT did not consider the physical damage I suffered from the persecution, and this is not fair. I have been subjected to arrest more than one time and spiritual persecution. This resulted in my memories of history, and may appear vague memory problems. RRT should take full account of my physical condition, if necessary, my physical condition should be evaluated. RRT ignored that both the hearing and interview were stressful situations. Also due to memory loss arising from the persecution, I could not provide evidence for my Christian knowledge.

2. At the hearing, the only submission the applicant made in relation to ground 2 was that the applicant’s “brain is not working very properly now because of the persecution” and that the applicant’s “memory is not good”.[10]

   [10] T4.25

3. From the Tribunal’s reasons, it appears the applicant submitted to the Tribunal that he was unable to provide a consistent account because of his memory loss. In response to the Tribunal’s putting to the applicant inconsistencies in his evidence, the applicant “claimed that he had been bashed during the Cultural Revolution and it had affected his memory”. [11] The Tribunal did not accept that submission:[12]

   The Tribunal does not accept that the applicant, who was able to recall many other details relating to his family and other circumstances, was unable to provide a consistent account of his experiences in China as a result of memory loss. The Tribunal instead considers that the applicant was unable to do so because he had manufactured his claims to have been harmed in China as a result of his Christianity and his claims to have left China for this reason.

   [11] CB114, [18]

   [12] CB115, [19]

4. It also appears from the Tribunal’s reasons that the applicant claimed that “he was very nervous during the Department interview”.[13] The Tribunal, however, did not accept that the applicant’s being nervous affected his evidence:[14]

   The Tribunal accepts that both the hearing and interview are stressful situations for applicants. However, the applicant has claimed to have been a Christian all his life and to have been from a Christian family. The Tribunal does not accept that his extremely limited understanding of very basic Christian beliefs and concepts is in any way consistent with his claim to be a long standing Christian from a Christian family.

   [13] [20]

   [14] CB116, [21]

5. In my opinion, therefore, ground 2 of the application for review raises no arguable case for the relief the applicant seeks in his application.

Ground 3

1. The third ground of review is as follows:

   Although RRT accepted my evidence of a certificate from the Reverend of the Anglican Church in Auburn and my attending and participating in church services in Australia, RRT unreasonably ignored the relationship of my worship activities in China and Australia, and the fact that the Reverend genuinely believe that I am a Christian, and was a Christian in China. The evidence that I attended church services involved in Christian activities in Australia as I am a sincere Christian was not examined by the RRT.

2. The applicant made no submission at the hearing in relation to ground 3.

3. The ground relates to a certificate from a Reverend of the church which the applicant attended in Australia,[15] and to which the Tribunal referred in its reasons.[16] The Tribunal accepted that the Reverend genuinely believed the applicant is a Christian and was a Christian in China. The Tribunal, however, did not accept the letter overcame “the problematic nature of the applicant’s own evidence”.[17]

   [15] CB54

   [16] CB116, [22]

   [17] CB116, [22]

4. In my opinion, it is not reasonably arguable to contend that the Tribunal unreasonably ignored the letter from the Reverend. There is no question that it was reasonably open to the Tribunal to conclude, as it did, that the letter did not outweigh the unsatisfactory nature of the applicant’s evidence the Tribunal described elsewhere in its reasons.

Conclusion and disposition

1. The applicant cannot demonstrate he has an arguable case for the relief he seeks in his application.

2. I propose to order that the application be dismissed with costs. I propose to fix the first respondent’s costs in the amount of $3,326 being the costs specified in item 2(b) of Part 3 Division 1 of Schedule 1 to the FCCR.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 June 2014