SZTNF v Minister for Immigration

[2014] FCCA 2446

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNF v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2446

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

Legislation:

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

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

Applicant: SZTNF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2835 of 2013

Judgment of: Judge Manousaridis

Hearing date: 18 July 2014

Delivered at: Sydney

Delivered on: 24 October 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Mr D Nguyen

Australian Government Solicitor

ORDERS

1. Subject to order 3, 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.

3. The applicant have liberty to apply by no later than 14 November 2014 to re-open his case to the extent he wishes to make submissions in relation to grounds [3] and [4] stated in the attachment to the grounds of application under the heading “The Grounds of the Application”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2835 of 2013

SZTNF

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) dismissing an application for judicial review filed by the applicant on the ground the application does not raise an arguable case for relief.

The applicant’s claim for protection

1. The factual assertions on which the applicant relied for a protection visa are as follows.[1]

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

   b)The applicant and his brother were raised by the applicant’s uncle. The uncle established a Local Church but, after it had gained a following and the uncle had refused to register the church, the village government sealed the church.

   c)The uncle subsequently conducted Local Church services at a large warehouse on the mountain. A Buddhist temple, however, commenced services across the mountain ridge, and some of its members objected to the applicant’s uncle conducting services at the Local Church because it “was destroying their aura”. The police sided with the Buddhists, accusing the Local Church of being a cult. The police sealed the Local Church, fined its members, and detained the applicant’s uncle. The applicant was bailed by his school, but the school official criticised the applicant in front of the whole school and the applicant was punished for being involved in a cult. The applicant’s family, after being informed of these incidents, took the applicant’s teacher’s advice to study overseas so that the applicant could stay away from the church.

   d)The applicant entered Australia in 2007 on a student visa. He maintained close contact with his uncle. He attended some preaching conferences in secret, and browsed gospel information online which he forwarded to his uncle.

   e)In 2011, the applicant’s uncle’s church gathering was again discovered, and sealed. The police found the gospels the applicant sent to his uncle. The applicant’s uncle was then sent to “labour reformation for two weeks”. In the meantime, and by chance, the applicant “got information about the Local Church”. He attended their services, and was baptised.

   f)The applicant continued to send information about the Local Church to his uncle and his brother, and “the information also went onto the church flyers and blog”. The Chinese government discovered that information. That led to the applicant’s brother being expelled from school, and the applicant’s uncle advising the applicant “to never go back since the religious environment in China now is hopeless”.

   [1] CB25-26

The Tribunal’s reasons

1. The Tribunal did not accept the applicant was a practising Christian, and that he attended the Local Church in Australia for the sole purpose of establishing and advancing a protection visa claim.[2] The Tribunal’s conclusion was based on the applicant’s not having commenced attendance at the Local Church until five years after he arrived in Australia;[3] the applicant had poor knowledge of the Local Church;[4] and the applicant had not been baptised in China.[5] The Tribunal also found that evidence the applicant gave in relation to other matters to be evasive and not truthful.[6]

   [2] CB71, [14], and CB74, [18]

   [3] CB71-72, [14], first dot point

   [4] CB72, [14], second, third and fifth dot points

   [5] CB72, [14], fourth dot point

   [6] CB73, [15]

2. The Tribunal, therefore, was not satisfied the applicant was involved in the Local Church with his uncle in China, or that the applicant’s uncle operates a Local Church, or that the applicant’s uncle had been arrested, or that the applicant provided his uncle with any religious materials.[7] The Tribunal, therefore, was not satisfied the applicant had a well-founded fear of persecution.[8] Nor was the Tribunal satisfied that the applicant satisfied the criterion provided for by s.36(2)(aa) of the Migration Act 1958.[9]

   [7] CB74, [17]

   [8] CB74, [20]-[21]

   [9] CB75, [25]

Grounds of application

1. In his application, the applicant, who is not legally represented, made the following grounds.

   Orders sought by Applicant

   1.I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christianity in China and Australia.

   2.RRT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3.RRT failed to prudently consider my risk due to my commitment of paralyzing [sic – proselytizing(?)] if I return to origin.

   4.RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

   The Grounds of the Application are:

   [1]I am a Chinese student and have faithful and committed Christian faith. I have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.

   [2]I have been actively involved in church activities in Australia. My action and religious performance has been evidenced by church elder with reference.

   [3]RRT unreasonable [sic] suspect of the truthfulness of my claims just because of the absence of the evidence.

   [4]Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing.

2. At the hearing before me, the applicant was invited to make submissions in support of the grounds set out in his application. With the possible exception of grounds [3] and [4] (to which I will return later in these reasons), each of the grounds was interpreted to the applicant and the applicant was invited to make submissions in relation to each ground. The applicant made submissions in relation to grounds 3 and [1]. As to ground 3, the applicant submitted that if he was sent back to China, he will be persecuted, and that he did not want to go back. In relation to ground [1], the applicant submitted that the underground church is destroyed, “so we cannot go back now”.

3. At the hearing, the interpreter interpreted ground [3]. After that was done, I asked the applicant whether he understood it. Having heard the recording of the hearing when considering my decision, however, I have become aware that I asked my question by reference to ground [4]. In response to my question, the applicant said he did not understand the ground. In those circumstances, I am not satisfied that ground [4] was interpreted to the applicant; and I am not satisfied the applicant was given a full opportunity to make submissions in relation to grounds [3] or [4].

4. In my opinion, it is most unlikely that this has occasioned any injustice to the applicant. Ground [3] in substance repeats grounds 1 and 2; and, given the applicant made no submissions in relation to grounds 1 and 2, and the submissions he made in relation to grounds 3 and [1] were very limited, it is unlikely the applicant would have made any submissions, or any submissions that extended beyond the submissions he made in relation to grounds 3 and [1]. And I invited the applicant to make submissions in relation to his application as a whole. I propose, therefore, to deal with the Minister’s application to dismiss the proceedings on the assumption the applicant would not have made any additional submissions in relation to grounds [3] and [4]. I will reserve, however, liberty to the applicant to apply to re-open his case to make submissions in relation to grounds [3] and [4].

Does the applicant have an arguable case for relief?

1. Ground 1 in effect claims the Tribunal failed to properly consider the applicant’s claims he was a practising member of the Local Church. That claim does not raise an arguable case for relief. The Tribunal did consider the applicant’s claims. Most of the Tribunal’s reasons are devoted to those claims. The Tribunal did not accept them. It is not arguable that it was not reasonably open to the Tribunal to reject the applicant’s claims for the reasons, and on the basis of the materials on which the Tribunal relied.

2. Ground 2 complains the Tribunal’s not being satisfied the applicant was a Christian was based on the applicant’s lack of knowledge. This claim also does not raise an arguable case for relief. Although the Tribunal did rely on the applicant’s apparent ignorance of matters relating to the Local Church, that was not the only matter on which the Tribunal relied for not being satisfied the applicant was not a Christian. The Tribunal relied on the applicant’s not having been baptised, and on the applicant’s not becoming a member of a Local Church in Australia until five years after he entered Australia.

3. Ground 3 claims the Tribunal failed to consider the risk of the applicant’s being exposed to persecution if he were to return to China because of his intention to proselytize. That claim does not raise an arguable case for relief. The Tribunal in terms found it was not satisfied the applicant had a well-founded fear of persecution because it did not accept the applicant’s claim he was a Christian.

4. Ground 4 is a claim that the Tribunal failed to consider the applicant’s evidence and submissions. That claim does not raise an arguable case for relief. As I have set out in paragraph 5, the Tribunal did take into account the applicant’s evidence and submissions. Further, according to the Tribunal’s reasons, the Tribunal raised with the applicant the matters on which it came to rely in its reasons for not accepting the applicant’s claims.[10]

   [10] CB74, [16]

5. Grounds [1] and [2] on their face disclose no arguable case for relief. They are factual assertions in support of the proposition that the applicant has a well-founded fear of persecution. This Court does not have jurisdiction to determine whether the applicant has a well-founded fear of persecution. That was a matter within the Tribunal’s jurisdiction.

6. Ground [3] claims the Tribunal acted unreasonably in not accepting the applicant’s evidence to the extent the Tribunal did so because of an absence of evidence. The ground does not identify the passage or passages in which the Tribunal did not accept the applicant’s evidence because of an absence of evidence. I have been unable to identify any such passage. In any event, even if the Tribunal did not accept the applicant’s evidence because of the absence of evidence, that by itself cannot disclose any jurisdictional error. Ground [3], therefore, is not arguable.

7. The meaning of ground [4] is unclear. Perhaps the claim is the Tribunal was overly critical or sceptical of the applicant’s claims. Or it may simply be a criticism of the judgment the Tribunal made of the applicant’s claims. Either way, the ground discloses no arguable case for relief. At most it expresses disagreement with the Tribunal’s findings of fact.

Conclusion and disposition

1. None of the grounds stated in the application for review discloses an arguable case for the relief the applicant seeks. Accordingly, I propose to dismiss the application, and order that the applicant pay the Minister’s costs. I propose, however, to reserve to the applicant liberty to apply within twenty-one days for leave to re-open his case for the purpose of making submissions in relation to grounds [3] and [4].

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 24 October 2014