SZTQY v Minister for Immigration

[2014] FCCA 1690

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1690

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZTQY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3101 of 2013

Judgment of: Judge Driver

Hearing date: 30 July 2014

Delivered at: Sydney

Delivered on: 30 July 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms F Taah

Australian Government Solicitor

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3101 of 2013

SZTQY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 7 November 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from China and had made claims of religious persecution.  Background facts relating to the applicant’s claims and the Tribunal decision on them are conveniently set out in the Minister’s outline of submissions filed on 22 July 2014. 

3. The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 12 September 2012 on a Business (Short Stay) visa (subclass 456)[1].  On 26 November 2012, he lodged an application for a protection visa[2].  On 5 April 2013, the delegate refused the application[3].  On 2 May 2013, the applicant lodged an application for review with the Tribunal[4].  On 4 November 2013, the applicant attended a Tribunal hearing[5].

   [1] Relevant Documents (RD) 3, 22

   [2] RD 1-33

   [3] RD 41-58

   [4] RD 59-63

   [5] RD 80-82

4. The applicant’s claims are set out in a statement that accompanied his application for a protection visa[6].  The applicant claimed to be a pig farmer with a well-founded fear of persecution in China because of his attendance at an unregistered church leading to ongoing harassment by Mr Li, the son of the local police chief.  The applicant claimed that he and his wife were arrested during bible study in May 2008; they were taken to the police station, tortured, and his wife was molested.  On 27 May 2008, Mr Li told the applicant that the local government wished to shut his pig farm down because he and his wife had participated in a cult; Mr Li offered to intercede on the applicant’s behalf for 20,000 RMB, which the applicant paid.  Mr Li then returned every week to extort money and pigs from the applicant.  On one occasion, Mr Li beat the applicant; on 17 February 2009, Mr Li came to the farm with police to take 26 pigs and “ruin” the premises.  The following day, the authorities cancelled a contract with the applicant on the basis that he and his wife were cult members.  The applicant attempted to sue Mr Li for corruption; this resulted in him being jailed for three days until his wife paid 20,000 RMB for his release.  Eventually, the farm had to close.  The applicant found some employment in a small company but was fired at the request of Mr Li.  Since then, the applicant has only been able to find temporary employment.

   [6] RD 29-30

Tribunal decision

1. On 7 November 2013, the Tribunal affirmed the decision under review[7].

   [7] RD 94-101

2. The Tribunal found the applicant to be “highly evasive” and his evidence to be “unspecific and lacking in detail”[8].  It ultimately found that the applicant had fabricated his claims[9].  The Tribunal identified a number of problems with the applicant’s evidence:

   [8] RD 96[10]

   [9] RD 99[11]

   a)there were inconsistencies in the applicant’s evidence on:

   i)the frequency of his church attendance[10];

   [10] RD 96[10a]

   ii)the date of his arrest during bible study[11] and the length of his subsequent detention[12];

   iii)when and how often Mr Li came to his farm[13];

   iv)the timing of his attempt to sue Mr Li[14];

   v)the length of his detention after he tried to sue Mr Li[15];

   vi)when his farm closed[16]; and

   vii)his employment and travel history[17].

   b)in particular, the applicant told the delegate and the Tribunal that he had also held a management position at an electronics company and had travelled to South Korea for work[18].  These matters had not been mentioned in his statement made in support of his protection visa application;

   c)he had difficulty explaining the difference between registered and unregistered churches; his claim that there were no registered churches in China was inconsistent with country information[19];

   d)he either misunderstood or was unaware of basic facts and concepts relating to Christianity[20].  When the Tribunal asked the applicant if he knew anything about Christianity or whether he could provide any information at all about Christianity, the applicant stated that he could not[21].  

   [11] RD 97[10c]

   [12] RD 97[10d]

   [13] RD 97[10e]-[10f]

   [14] RD 97[10g]

   [15] RD 98[10h]

   [16] RD 98[10i]

   [17] RD 98[10j]

   [18] RD 52, 98[10j]

   [19] RD 97[10b]

   [20] RD 99[12]

   [21] RD 100[12e]

3. The Tribunal rejected the entirety of the applicant’s claims, finding that the applicant had no interest in or commitment to Christianity, and that he had not participated in religious activities in either China or Australia[22].  It rejected the applicant’s Convention claims[23].  It also found that the applicant was not entitled to complementary protection[24].

   [22] RD 100[14]-[15]

   [23] RD 100-101[16]

   [24] RD 101[17]-[19]

The present application

1. These proceedings began with a show cause application filed on 12 December 2013.  The applicant continues to rely upon that application.  There are three grounds in the application:

   1. The Tribunal did not carefully review my case.  Regarding to the inconsistencies pointed out by RRT, for example, paragraph 10 (a), I answered the question about attending church while in China.  I claimed that I went to the church once a week if I had time.  RRT made a conclusion that I was unable to state the frequency of my attendance at church while in China based on my response, which was unfair to me.

   2. The Tribunal unfairly reviewed my case.  The Tribunal concerned that I have tailored my evidence just based on some inconsistencies of the details.  I am an aged person, my memory is not good.  It is normal I could not remember the details of events happened a few years or even more than ten years ago.  Moreover, the Tribunal unreasonably ignored that the ambience while writing statement was much different from interview and I felt nervous during the interview with the delegate.

   3. The Tribunal did not examine the risk of the persecution I will face if return to China.  Because of my religion believes as an underground Christian, the Chinese authorities wishes to harm me.  I evidenced that when I was in China I attended a Christian church and after arriving in Australia I had been to a church a few times.  This is credible evidence that I follows underground Christianity in china but ignored by the Tribunal. (errors in original)

2. I have before me as evidence the book of relevant documents, filed on 6 February 2014.  I also received as evidence paragraphs 1 and 2 of the applicant’s affidavit filed with his show cause application.  I received paragraphs 3 and 4 of that affidavit as submissions.

3. The applicant made oral submissions in support of his application.  He expressed concern in particular that the Tribunal had taken too strict an approach to his credibility, especially by reference to his church attendance in China.  The Tribunal’s adverse credibility finding was multifaceted, but the first particular, dealt with by the Tribunal at [10(a)] of its reasons[25] was the issue of the applicant’s church attendance in China.

   [25] RD 96

4. The Tribunal concluded at [11] of its reasons[26] that the combination of the various discrepancies and deficiencies in the applicant’s evidence caused it to conclude that the applicant had not been truthful.  The applicant’s church attendance in China was but one of many problems in his evidence leading to that conclusion.  Even when viewed in isolation, it was open to the Tribunal to conclude that the applicant’s claims about his church attendance in China had been variable.  That uncertainty and variability may have reflected a circumstance that he had not attended church in China at all.

   [26] RD 99

5. The Tribunal also quizzed the applicant on his knowledge about Christianity, and the details are dealt with at [12] of the Tribunal’s reasons[27].  Save for the fact that the Tribunal queried the applicant’s knowledge of the concept of the Trinity, the questions asked by the Tribunal were all questions that should have been capable of ready answer by someone with even a basic knowledge of Christianity.  The applicant maintains that he is an underground Christian and that he belongs to a class of persons who suffer disadvantage in China.  That reflects a disagreement with the outcome of the review before the Tribunal. 

   [27] RD 99

6. I agree with the Minister’s submissions at [11]-[19] that there is nothing in the grounds advanced by the applicant that supports an arguable case of jurisdictional error.  Neither is there anything in my own examination of the available material that would support such an argument.  I conclude that there is no arguable case available of jurisdictional error by the Tribunal. 

7. Accordingly, I will dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

8. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  1 August 2014