SZTTX v Minister for Immigration
[2015] FCCA 834
•30 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTTX v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 834 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.91R |
| Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; [1998] FCA 1126 Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 |
| Applicant: | SZTTX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 95 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 30 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2015 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,300.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 95 of 2014
| SZTTX |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for a review of a decision of the Refugee Review Tribunal dated 19 December 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of the People’s Republic of China, arrived in Australia in 2007 as the holder of a student visa. That visa expired in March 2011. The Applicant was granted a bridging visa which expired in October 2012. He applied for a protection visa in March 2013.
In a written statement accompanying his protection visa application the Applicant claimed to be an adherent of the Local Church in China, having followed in his “uncle’s footsteps”. His uncle was a church elder and the Applicant lived with him. The Applicant claimed that he was baptised when he was 10 years old and also that his uncle was arrested at that time. The Applicant claimed that he had been arrested three times during high school due to his church membership.
The Applicant claimed that he was in conflict with his mother who would not allow him to join the Church and that he had not kept in touch with her. He claimed that after he came to Australia in 2007 he could not find a Local Church, but kept in touch with the church in China through the internet. He claimed he sent forbidden or censored information from gospels from Brother Changshou Lee back to his church in China.
The Applicant returned to China in 2009 and 2011. In his written statement he claimed he participated in church activities on his return. He claimed that in June 2012 he learnt that his uncle had been arrested while preaching the gospel, together with other church members and that the authorities had forced the church to disband and the members to join the “patriotic churches”. He claimed that his uncle was put under surveillance and had warned him that the police were aware of his involvement.
He also made claims about getting fellow athletes to join the church and that around Christmas 2012 two other church members were detained by the police for one month.
The application was refused and the Applicant sought review by the Tribunal. He attended a Tribunal hearing.
The Tribunal affirmed the delegate’s decision. It found, in essence, that the Applicant was not a credible witness and that he was not a genuine member of the Local Church. It gave extensive reasons for such findings.
In particular, the Tribunal had regard to inconsistencies in the Applicant’s evidence.
First, it found that the Applicant’s inconsistent oral evidence about the preparation of his protection visa application demonstrated a willingness on his part to be dishonest in the evidence that he gave to the Tribunal, albeit that his changing evidence about the application process, whether or not he had assistance of a migration agent and such matters was not, of itself, highly significant.
The Tribunal also took into account inconsistencies between the Applicant’s written statement and his oral evidence to the Tribunal, including in relation to whether he lived with his family or with his uncle and changes in his evidence when that issue was raised with him at the Tribunal hearing. This led the Tribunal not to be satisfied that the Applicant had lived with his uncle. It was of the view that the Applicant had amended his oral evidence because he realised the significance of his evidence about living arrangements in China, given that his oral evidence was contrary to his written claims.
The Tribunal had regard to the fact that the Applicant did not know his uncle’s current address or, indeed, the uncle’s address in 2009 or 2011. The Tribunal did not accept that the Applicant had a close relationship with his uncle as claimed. It found that problems with his evidence raised doubts about the Applicant’s claims to have lived with and followed his uncle into the Local Church.
The Tribunal found that the Applicant’s history of studying and time in Australia indicated that he had some English language skills (at least since studying in 2008) that raised significant doubts about his claim to the Tribunal that he could not find the Local Church in Sydney until April 2013 because he did not have sufficient English to look for it on the internet. The Tribunal considered that this explanation was manufactured because it was clearly problematic that the Applicant claimed to be a committed Local Church member since childhood but did not attend the Local Church in Australia until April 2013 (after he lodged his protection visa in March 2013). The Tribunal did not accept his claim that he did not have to locate a church in Sydney because he was participating in the Local Church in China by video as, for the reasons that followed, it was not satisfied that the Applicant participated in the Local Church in China and that he had a congregation in China with whom he could worship.
The Tribunal considered that the Applicant’s evidence at the hearing that he did not go home to China in 2009 (when he could no longer afford to study) because he was fearful was problematic. It found that this raised a concern as to why he did not apply for a protection visa until March 2013 after a “highly significant” delay. The Tribunal was not persuaded by the Applicant’s explanation that he did not know he could make such an application. It was of the view that he did not make such an application before 2013 because he was not genuinely fearful of returning to China. The Tribunal found that the fact that the Applicant did return to China in 2009, albeit briefly, cast serious doubt over his claim about not going home because of fear.
The Tribunal also had regard to the fact that, contrary to this claim, the Applicant had told the delegate that he did not apply for a protection visa earlier because he was not fearful of returning to China until events of 2012 when his uncle was arrested. He made this statement notwithstanding that in the written statement he had claimed that both he and his uncle had been arrested long before that time. The Tribunal considered the Applicant’s explanations, but found that he had not satisfactorily addressed the inconsistencies in his evidence about why he had not applied for protection earlier if it was true that both he and his uncle had been arrested by the authorities prior to his initial departure from China in 2007.
The Tribunal recorded that when it had asked the Applicant for further evidence about being arrested in China, he had said he was last arrested when he was 10 years old. The Tribunal found that this was contrary to his written claims that he was arrested on three occasions in junior high school, that he had been unable to provide an explanation and that this cast serious doubt over whether he was ever arrested.
The Tribunal addressed the Applicant’s evidence about his return to China in 2009 and 2011 to visit friends and relatives. It recorded that when it put to the Applicant that this conduct may not be indicative of a person fearing harm, he had suggested that it was impossible to be detained by the authorities because he was not an international criminal and because he held a temporary Australian student visa. The Tribunal did not find this to be an acceptable explanation. It also found the Applicant’s subsequent claim that he did not have a problem on return to China because he did not participate in the Local Church at that time to be inconsistent with his written statement. The Applicant could not explain this inconsistency which the Tribunal found demonstrated the Applicant’s propensity to change his evidence when an earlier version of events cast doubt over his claims.
The Tribunal found that the inconsistencies in the Applicant’s evidence about his arrests in China, who he lived with, his reasons for not applying for protection earlier and about whether he participated in the Local Church in China in 2009 and 2011 raised serious doubts about his credibility, as did his claim about not being able to locate the Local Church in Sydney for 5 years when he subsequently located the church after he had made a protection visa application and the delay in his application notwithstanding the nature of his claims about earlier arrests.
On the evidence before it, the Tribunal was of the view the Applicant was not a witness of truth. It did not accept his claims about involvement in the Local Church in China or that he (or his uncle) was arrested because of Local Church involvement. It did not accept he was warned or punished by the police as he claimed or that he was mocked at school because of his religion. The Tribunal found that the Applicant did not attend the Local Church in Sydney until April 2013 because he was not a genuine member of the Local Church. It did not accept he participated from Australia in Local Church meetings in China via video prior to April 2013. It did not accept he was baptised in China, that he was a genuine Christian, that he sent religious material to his uncle in China, that the authorities were interested in him or that he proselytized in China before he came to Australia. It found the Applicant had manufactured all of these claims.
The Tribunal addressed the Applicant’s evidence about attending the Local Church in Sydney. It found it problematic that he happened to locate such church just two weeks after his protection visa application. Despite the absence of documentary evidence in support of this claim, the Tribunal accepted that the Applicant could provide some basic information about Witness Li, the Recovery Bible and Local Church practices. It accepted that he probably had been attending meetings and learning information about the Local Church since April 2013. However, having regard to its credibility finding, the Tribunal did not accept that the Applicant was engaging in such conduct because he was a genuine Local Church member or Christian. It was of the view he had been doing this solely for the purposes of strengthening his claim to be a refugee and in the context of the Refugees Convention criterion disregarded this conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth) (the Act).
Having found that the Applicant was “not genuinely interested in, or committed to, the Local Church or Christianity”, the Tribunal found that he would not engage in any religious activities (with the Local Church or any other church) if he returned to China and that on all the evidence there was no real chance he would be persecuted for reasons of his religion or any other reason if he returned to China now or in the reasonably foreseeable future.
The Tribunal also considered the complementary protection criterion. It noted that, having rejected the Applicant’s claims about events in China as fabricated, it did not accept he would engage in religious activities if he returned to China. It accepted he had attended that Local Church in Australia and was mindful that s.91R(3) of the Act was not applicable to this criterion. However it found nothing to indicate that the Chinese authorities were aware of the Applicant’s conduct in Australia or that they would be concerned by it. The Tribunal reiterated that it had found that the Applicant had no genuine commitment to the Local Church and that his conduct was engaged in solely for the purpose of the protection visa application. It found he would not participate in activities of the Local Church in China and that there was no real risk he would suffer significant harm as a result of his religious beliefs.
The Tribunal found that the Applicant did not meet the complementary protection criterion or the Refugees Convention criterion and affirmed the delegate’s decision.
The Applicant sought review by an application filed in this Court on 15 January 2014. The application contains an attachment headed “Attachment to Grounds of Application”. Under the heading “Orders sought by Applicant” there are four numbered paragraphs which appear to be intended to be grounds, followed by four “Grounds”. I have considered each of these paragraphs and the matters raised by the Applicant in oral submissions. He did not file written submissions.
The first ground (under the heading “Orders sought by Applicant”), is a contention that the Department and the Tribunal decisions were unfair and unreasonable as they failed to take into consideration what is described as a “good consideration” of the Applicant’s commitment to his religion and ignored his background and actual practice of Christianity in China and Australia. There is some overlap between this ground and other grounds insofar as the Applicant contended that the Tribunal’s decision was unreasonable in that it failed to believe what he had said and the evidence he provided in support of his claims and asserted that the Tribunal’s finding as to credibility was unreasonable because it took into account the absence of evidence.
The delegate’s decision is not and cannot be the subject of these proceedings. I have considered all of the Applicant’s contentions in relation to unreasonableness on the part of the Tribunal. However, as submitted by the First Respondent, the Applicant has not established that the Tribunal decision or findings were unreasonable in the sense considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 or Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18 (and see SZSKR v Minister for Immigration [2014] FCCA 2 at [34]).
The Applicant has not shown that the approach adopted by the Tribunal in its decision-making was lacking in any evident and intelligible justification or that it was arbitrary, capricious or clearly unjust. The Tribunal made detailed findings that were open to it on the material before it in relation to its rejection of the Applicant’s credibility. It carefully considered the Applicant’s claims as set out in the statement accompanying his protection visa application and the claims that the Tribunal recorded he raised with the delegate and at the Tribunal hearing. The only evidence before the Court as to what occurred at the Tribunal hearing is the Tribunal account in its reasons for decision.
I asked the Applicant what the evidence was that he claimed the Tribunal did not consider. The only evidence to which he referred was his statement of written claims accompanying his protection visa application. Beyond this, it appears that the only material he provided to the Tribunal consisted of written extracts from his passport. The Tribunal considered the Applicant’s claims and his written and oral evidence concerning his involvement with the Local Church and his commitment to proselytizing (an issue specifically raised in the orders sought) but, for the reasons given, did not accept these claims as credible. In particular, the Tribunal considered the Applicant’s claimed practice of and commitment to his religion (both in China and Australia) and also about his background and “actual practice” of Christianity in China and Australia. It did not ignore such claims.
The Tribunal’s findings were reasonably open to it in the sense considered in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; [1998] FCA 1126. Findings as to credit are findings of fact and a matter for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). Insofar as the Applicant takes issue with the factual findings of the Tribunal, he seeks impermissible merits review.
The Applicant asserts a lack of fairness. The Tribunal’s account of the hearing indicates that it explored the Applicant’s claims and raised issues of concern with him. There is nothing in the material before the Court to support any contention that the Tribunal failed to comply with the procedural requirements in Division 4 of Part 7 of the Act.
It has not been established that the Tribunal decision was unreasonable or unfair on any of the bases contended for by the Applicant. The first ground is not made out.
The second ground in the application is associated. It is that the Tribunal did not consider the Applicant’s “statement and comments given to the questions asked in the hearing and judge [his] faith simply by knowledge, instead of real practice and fact”.
Contrary to this claim, the Tribunal did consider the Applicant’s written statement. It addressed the explanations he provided when issues were raised at the Tribunal hearing, insofar as these matters appear on the Tribunal decision record. It has not been established that the Tribunal inappropriately set itself up as an arbiter of religion or religious knowledge (WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2). The Tribunal accepted that the Applicant had some basic knowledge about matters relevant to the Local Church, but it also took into account what it accepted and did not accept in relation to the Applicant’s practice of that religion in rejecting his claims about his involvement in the Local Church in China. It accepted that he had attended the Local Church in Australia but, as was open to it, disregarded this conduct under s.91R(3) for the purposes of the Refugees Convention criterion. In considering the complementary protection criterion it found, for the reasons set out above, that there was nothing to indicate an awareness or concern on the part of the authorities about such attendance and that the Applicant had no genuine commitment to the Local Church. This ground is not made out.
The third ground is that the Tribunal “failed to prudently consider [the Applicant’s] risk due to [his] commitment” to what is described as “paralyzing” (sic) but is clearly intended to be a reference to proselytizing if he returned to China. Insofar as this is a claim of unreasonableness, it has been considered above. The Tribunal did consider the Applicant’s claims but, as indicated, rejected, relevantly, the claims that the authorities were interested in him or that he proselytized in China before he came to Australia. It found that he would not engage in any religious activities if he returned to China. Such findings were open to the Tribunal, having regard to its credibility finding. This ground is not made out.
The fourth ground under the heading “Orders sought by Applicant” is that “RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole”.
Insofar as this is a ground asserting unreasonableness on the part of the Tribunal, it has been considered above. Insofar as it might be said to raise an issue of a failure to have regard to relevant considerations, it is not made out. The Tribunal considered the integers of the Applicant’s claims to fear persecution and also in the context of the complementary protection criterion. The Applicant has not identified a particular integer of his claim which he says was not identified except, perhaps, the proselytizing claim. That claim was considered. The claims that he feared persecution based on his association and activities with the Local Church were also considered and, as indicated, the only evidence that he provided was his written statement which was addressed by the Tribunal. This ground is not made out.
Under the heading “The Grounds of the Application” in the first paragraph the Applicant reiterated his claim to fear persecution on the basis of Christianity and his involvement in the Local Church. Such a claim seeks impermissible merits review. It does not establish jurisdictional error on the part of the Tribunal.
Similarly, in the second paragraph, the Applicant claimed he had been “actively involved in church activities in Australia” and that his “action and religious performance” was “evidenced by church elder with reference”. Contrary to this claim, the Tribunal recorded that the Applicant did not provide any documentary evidence from the Local Church in support of his claim to have attended in Australia. The Tribunal considered the Applicant’s claimed involvement in church activities in Australia. This ground is not made out.
Ground three is that the Tribunal unreasonably suspected the truthfulness of the Applicant’s claims “just because of the absence of evidence”. The Tribunal did not reach its findings based only on the absence of evidence. As indicated, it took into account significant inconsistencies in the Applicant’s claims in a number of respects and also matters such as the Applicant’s delay in applying for protection, notwithstanding his claims about earlier arrests in China. This ground is not made out.
Finally, the Applicant contended that the Tribunal had been “over-objective” in judging his explanation and his responses at the hearing. The issue of reasonableness is discussed above. As indicated, the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision and there is nothing in the Tribunal’s account that is indicative of bias. It is a rare and exceptional case in which bias can be established solely on the basis of the Tribunal’s reasons for decision (SZHVL v Minister for Immigration and Citizenship [2008] FCA 356). The mere fact of adverse findings or an adverse decision does not, of itself, give rise to an inference of bias or of themselves suggest that the decision-maker approached the task other than with a mind open to persuasion (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). There is nothing in the Tribunal’s reasons for decision to suggest that it did approach its task other than with an open and impartial mind (NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115]).
Insofar as this may be taken to be an allegation of apprehended bias, there is nothing in the material before the Court to establish an apprehension of bias viewed from the perspective of the appropriately informed lay observer (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [28]). The Tribunal is entitled to assess the evidence before it and to attach such weight to that evidence as it regards appropriate. Neither actual nor apprehended bias is made out on the material before the Court. This ground is not made out.
In oral submissions today, the Applicant raised three issues. The first was that it was unreasonable for the Tribunal and the Department not to believe what he said to them and all the materials he submitted to them. He confirmed that the only materials submitted were the written claims accompanying the protection visa application and pages from his passport. The delegate’s decision is not the subject of review in these proceedings. The Applicant’s disagreement with the Tribunal’s credibility findings does not establish jurisdictional error. Such findings were open to it on the material before it for the reasons which it gave. Unreasonableness has not been established and merits review is not available.
Insofar as the Applicant claimed that the Tribunal did not consider his claims or his evidence that issue has been canvassed above. Contrary to the Applicant’s submission, the Tribunal did consider his written statement and the oral claims that he made. Insofar as his concern is that the Tribunal did not believe him, this does not establish jurisdictional error.
The Applicant also raised an issue about a matter being raised with him about some other person not having trouble travelling to and from China and a finding being made on that basis that he would not have such problems. Such issues were not addressed in the Tribunal’s findings and reasons. Insofar as the Applicant takes issue with the delegate’s reasoning, that decision is not the subject of review in these proceedings. The Tribunal considered the Applicant’s evidence and claims about the circumstances in which he returned to China, relevant to whether such returns were consistent with his claims to fear returning to China because of prior events. The claims that the Applicant makes in this respect are not indicative of jurisdictional error on the part of the Tribunal. The Tribunal considered, but rejected, the Applicant’s claims that he would be of interest to the Chinese authorities for reasons of his religion or, indeed, for any other reason.
None of the issues raised by the Applicant in his application or in oral submissions today is indicative of jurisdictional error. Accordingly, the application must be dismissed.
The Applicant has been unsuccessful. The First Respondent seeks costs in the sum of $3,300. The Applicant indicated that he could not afford to pay costs at the moment. However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. The amount sought is considerably less than the amount provided for in the Federal Circuit Court Rules 2001 (Cth). It is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 9 April 2015
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