SZTMU v Minister for Immigration

[2014] FCCA 2791

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2791

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal (Tribunal) – whether Tribunal considered first applicant’s claims – whether second applicant made any claim for protection – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2)(c)

First Applicant:

Second Applicant:

SZTMU

SZTMV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2763 of 2013

Judgment of: Judge Manousaridis

Hearing date: 6 May 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms Wong of
DLA Piper

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2763 of 2013

SZTMU

First Applicant

SZTMV

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant (applicant), a national of the People’s Republic of China, applied for a protection visa on the ground that he feared persecution in China because he is a Christian. The second respondent (Tribunal) affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa, largely because the Tribunal did not accept the applicant was a person worthy of credit.

Applicant’s claim for protection

1. The applicant’s claim for protection, as stated in his application, was based on the following asserted facts. He was a Christian in China, attending Local Church family gatherings.[1] In 1990 the church was investigated as a cult and the applicant’s father was arrested and sentenced to labour reform for six months.[2] The applicant hid in North West China,[3] and returned to his home town in 1994, but within three months, a church gathering was attacked by police and the village security, and the applicant and his father were detained for two days and fined.[4] The applicant moved to another area where he participated in another church which by 2006 had grown to 30 members.[5] However, the applicant returned home after many members of the church had been summonsed by the police, and the applicant heard the police were searching for him.[6]

   [1] CB151, [9], second bullet point.

   [2] CB151, [9], third bullet point.

   [3] CB151, [9], third bullet point.

   [4] CB151, [9], fourth bullet point.

   [5] CB151, [9], fifth bullet point.

   [6] CB151, [9], fifth bullet point.

2. In 2008 his family lost their property in a fire, and the applicant’s father and wife contracted a disease, resulting in their incurring substantial medical expenses.[7] The applicant borrowed money from a loan shark and, to repay the debt, the applicant went to Papua New Guinea (PNG) in 2009 to work.[8] In 2012, when he returned to China, the church gathering he attended was attacked by the village security force, and the applicant was detained for five days and subjected to brain washing.[9] The applicant came to Australia in 2012 and began to practice with the Local Church.[10]

   [7] CB151, [9], seventh bullet point.

   [8] CB151, [9], seventh bullet point.

   [9] CB151-152, [9], eighth bullet point.

   [10] CB152, [9], ninth bullet point.

3. The applicant gave additional information at a departmental interview, and also at a hearing before the Tribunal, which included the following. The applicant had been to PNG twice, and to Australia five times.[11] The applicant’s passport had been issued in 2007, and he used it to leave China three times and return twice, and that he never experienced trouble at the airport.[12] The applicant made a number of brief visits to Cairns from PNG so that he could deliver money to his son.[13] The applicant’s most recent arrival into Australia was in May 2012, and before that the applicant had lived in China for seven months.[14]

   [11] CB152, [11], second bullet point.

   [12] CB155, first bullet point.

   [13] CB155, third bullet point

   [14] CB155, fourth bullet point

Tribunal’s reasons

1. The Tribunal was not satisfied “as to the credibility of the Applicant’s claims to have been a member of a branch of the Local Church in China, and to have suffered harm as a result”.[15] That was so because his description of the activities of the church was “generally vague and devoid of circumstantial detail”;[16] the Tribunal was not satisfied the applicant’s returning to China from PNG on two occasions was consistent with his fear of harm after having already experienced arrest and detention for illicit religious activity;[17] the applicant failed to seek protection in PNG or at any time during the applicant’s first four visits to Australia;[18] and the applicant had left China without any difficulty.[19] The Tribunal accepted the applicant attended a Local Church in Sydney after his most recent arrival in Australia.[20] The Tribunal, however, was not satisfied that he attended the Local Church otherwise than for the purpose of strengthening his claim to be a refugee.[21]

   [15] CB157, [16]

   [16] CB157, [16], first bullet point

   [17] CB157, [16], second bullet point

   [18] CB157, [16], third bullet point

   [19] CB158, second bullet point

   [20] CB158, [19]

   [21] CB158-159, [20]

2. The Tribunal, therefore, was not satisfied the applicant met the criteria specified in s.36(2)(a) of the Migration Act 1958 (Cth) (Act). Nor was the Tribunal satisfied the applicant met the criteria specified in s.36(2)(aa) of the Act.

Grounds of application

1. The applicant, who is not legally represented, has included the following grounds of review in a document attached to the application and titled “Attachment to Grounds of Application”:

   Orders sought by Applicant

   1, I disagree with Immigration and RRT’s decision. They did not consider that my child and our family will be in danger if we return.

   2, RRT did not consider that I will be persecuted and in big trouble if I return home.

   3, RRT member failed to consider my fears and concerns about my faith in particular my child’s future if return. They did not trusted [sic] me and have prejedous [sic] attitude to my application. RRT should grant my application.

   The Grounds of the Application are:

   1, I am a Chinese citizen and Christian who has been persecuted by Chinese government. I had been warned by the corrupted government and police.

   2, I can not [sic] go back to China since I am very scared to be sentenced.

   3, My child will be facing challenge and social biases if return. RRT failed to consider the reality that both my child and I will be denied by the society.

2. The first-stated ground claims the Tribunal failed to consider that the applicant’s child and his family will be in danger. If that claim can be made out, it would demonstrate jurisdictional error. The claim, however, cannot be made out. Although the applicant’s son, the second applicant, was an applicant before the Tribunal, the second applicant did not make any claims for protection.[22] The second applicant only relied on his being a member of the family unit of which the applicant was a member. There was, therefore, no claim for protection made by the applicant for the Tribunal to consider. Nor was there any claim for protection made by any other family member of the applicant.

   [22] CB28; CB151, [8]. See also s.36(2)(c) of the Migration Act 1958 (Cth) which prescribes as a criteria for the granting of a protection visa a person’s being a non-citizen in Australia who is a member of the same family unit as a non-citizen referred to in s.36(2)(aa) and who holds a protection visa.

3. The second-stated ground is in effect a claim the Tribunal did not consider the applicant’s claims. That ground cannot be made out. The Tribunal accurately set out the applicant’s claims, it asked the applicant questions in relation to the claims he made, and provided reasons for the Tribunal’s not accepting the applicant’s claim.

4. The third-stated ground contains two claims.

   a)The first repeats the substance of the first two-stated claims, namely, that the Tribunal did not consider the applicant’s claims or the dangers that the second applicant would face if he returned to China. As I have already found, the Tribunal did consider the applicant’s claims; and the second applicant made no independent claim for the Tribunal to consider.

   b)The second alleges prejudice. There is nothing in the material before me that could give rise of a reasonable apprehension of bias on the part of the Tribunal. Nor is there any evidence of actual bias.

5. The fourth-stated and fifth-stated grounds of review do not disclose any arguable ground of jurisdictional error. They only repeat the substance of the claims the applicant made before the Tribunal, namely, that he feared persecution if he returned to China.

6. The sixth-stated ground claims, in effect, that the Tribunal failed to consider the applicant’s and the second applicant’s claims. As I have already found, the Tribunal did consider the applicant’s claims; and there were no claims for protection made by the second applicant which the Tribunal was required to consider.

Conclusions and disposition

1. The applicant has not established any of the grounds on which he relies. I propose, therefore, to dismiss the application, and order the applicant pay the first respondent’s costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 November 2014