SZTUX v Minister for Immigration
[2014] FCCA 2346
•14 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTUX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2346 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Rules 2001(Cth) Migration Act 1958 (Cth), ss.36, 91R, 476 |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Others; ex parte Durairajasingham (2000) 58 ALD 609 |
| First Applicant: | SZTUX |
| Second Applicant: | SZTUY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 192 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2014 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms Z Taylor Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The first 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 192 of 2014
| SZTUX |
First Applicant
SZTUY
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 24 December 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, who are a mother and daughter. Any references in this judgment to “the applicant” are intended to be references to the applicant mother. Background facts relating to the applicant mother’s migration history and her claims for protection are set out in the Minister’s written submissions filed on 7 October 2014.
The applicant, a citizen of the People's Republic of China (Fujian Province), first arrived in Australia on 21 January 2004 as the holder of a visitor visa. The applicant entered Australia on a Malaysian passport in the name of [name A]. She was granted several student visas in that name and as a national of Malaysia. On the seventh occasion, her application for a student visa was refused[1].
[1] The decision to refuse that visa was affirmed by the Migration Review Tribunal on 8 August 2012
On 24 December 2012, the applicant lodged a protection visa application in the name of [name B aka name A][2]. The applicant's infant child was listed as a dependant in that application.
[2] Court Book (CB) 1-51
In her application for a protection visa, the applicant claimed that her Malaysian passport was not genuine, that her real name was [name B] and that she was a national of China. In support of her application she provided a copy of a national identity card from China, as well as a copy of a notarial certificate with a translation dated 24 October 2012.
On 24 July 2013, a delegate of the Minister rejected the applicants' application for protection visas[3].
[3] CB 63-81
On 15 December 2013, the applicants applied to the Tribunal for review of the delegate's decision[4].
[4] CB 82-88
On 19 December 2013, the applicant attended a hearing at which she gave oral evidence and elaborated on her claims[5].
[5] CB 98
On 24 December 2013, the Tribunal affirmed the delegate's decision[6].
[6] CB 119-131
Applicants' claims
The applicant claims to fear harm from the Chinese authorities because she is a member of the Local Church. The applicant also claims that she and her daughter will suffer harm if they return to China as they will not have any family support and will face discrimination and family disapproval. In support of these claims, the applicant asserts that:
a)she became a member of the Local Church when she was baptised at the age of 8. Her aunt and uncle introduced her to the local church and held gatherings at their home;
b)she signed a petition prepared by her uncle, an elder of the local church;
c)she was detained for one day in 1995 following the purchase by her Church of bibles from Hong Kong. The applicant states that her uncle and a man called [LX] were responsible for the purchase. Both of these men were arrested and detained for their involvement;
d)her uncle was detained again in 2001 after he organised a joint signature appeal demanding that the government recognise the Local Church (Appeal). The applicant claims that she also signed the Appeal;
e)after signing the Appeal, the applicant had to leave China and made arrangements to travel to Australia via Malaysia;
f)in Australia, she attended a Mormon church because she was not able to find a Local Church. Notwithstanding, she participated in Local Church gatherings held in China via webcam;
g)she was interviewed by a local journalist from China in 2010 with respect to her family's involvement with the Local Church. The applicant states that her uncle was arrested following the interview; and
h)she has been attending a Local Church in Sydney since June 2012.
Tribunal's findings
The Tribunal identified that the threshold issue was the applicants' nationality. The applicant claimed that she departed China in December 2003 on her Chinese passport and, after arriving in Malaysia, obtained a fraudulent Malaysian passport with the assistance of an agent (who she claims retained her Chinese passport). Neither the Malaysian or Chinese passports were submitted to the Tribunal. However, on the evidence before it, the Tribunal was not able to conclusively determine that the applicant was not a national of China as she claimed to be. Accordingly, the Tribunal found the applicants to be nationals of China for the purposes of the review[7].
[7] CB 126 [16]
For the reasons that follow, the Tribunal did not accept that the applicant gave a truthful account of her circumstances in China and was not satisfied that she was a credible witness:
a)the applicant's evidence at the hearing was confused, inconsistent and problematic in relation to many of her claims[8];
b)since leaving China nine years ago, the applicant maintained that she was a national of Malaysia before applying for a protection visa. The Tribunal considered that this generally undermined her credibility[9];
c)the applicant's evidence in relation to the alleged purchase of bibles from Hong Kong was inconsistent. In her statement she stated that [LX] was sentenced to three years imprisonment and her uncle for one year in a labour camp but at the hearing stated they were only detained for six months. Additionally, the Tribunal noted that the applicant's claims were inconsistent with various independent sources which reported that [LX] was arrested in 2001, and not 1995, for his involvement in importing or smuggling bibles from Hong Kong to a Christian group known as "the Shouters"[10];
d)the applicant's claim to have been unable to find a Local Church in Sydney until June 2012 - eight years after arriving in Australia - seriously undermined her claim to be a Local Church member in China. The Tribunal considered it highly unlikely that the Applicant would not have been able to locate a Local Church gathering in Sydney if she had genuinely attempted to find one[11];
e)the Tribunal had serious doubts concerning the applicant's claim to have participated in Local Church gatherings by webcam in the period since her arrival to Australia and that she was interviewed over the web by a Chinese journalist. The Tribunal noted the highly sophisticated methods used by the Chinese government to restrict and censor internet activities of this kind. Further, the applicant was unable to give any detailed information concerning what was discussed during the interview. The applicant also gave inconsistent evidence as to why the journalist wanted to speak to her. The Tribunal did not accept that the interview ever occurred[12];
f)the applicant's evidence as to why the Chinese authorities would have an interest in her was confused. The Tribunal did not accept that the applicant's use of a false passport while in Australia would be known to the Chinese government. Even if the information were disclosed, the Tribunal did not consider that would result in the applicant being harmed or detained[13]; and
g)the applicant's delay of nine years in lodging a protection visa application seriously undermined her claim to fear persecution[14].
[8] CB 126 [19]
[9] CB 126 [19]
[10] CB 127 [20]
[11] CB 127 [21]
[12] CB 128 [22]
[13] CB 128 [23]
[14] CB 129 [24]
The Tribunal rejected all of the applicant's claims to be a Local Church member in China. The Tribunal did not accept that the applicant:
a)was detained in relation to the purchase of bibles from Hong Kong;
b)had been reported to the village government in relation to a Taiwan missionary;
c)signed a petition in support of the Local Church; or
d)that she was of interest to the Chinese Authorities for the reasons that she claimed[15].
[15] CB 129 [25]
Whilst the Tribunal accepted that the applicant had been attending Local Church meetings in Sydney since June 2012, it was not satisfied that her attendance at the Local Church was otherwise than for the purpose of strengthening her claim to be a refugee. Accordingly, the Tribunal disregarded her conduct in attending church gatherings since June 2012 as required by s.91R(3) of the Migration Act 1958 (Cth) (Migration Act)[16].
[16] CB 130 [27]
The Tribunal found that there was no real chance that the applicant will face persecution because of her religion if she were to return to China now or in the reasonably foreseeable future. It noted that no claim was made that the applicant's daughter would face harm from the Chinese authorities for reasons of her religion[17].
[17] CB 130 [28]
In relation to the claim that the applicants' would face social discrimination, the Tribunal considered:
a)any societal discrimination faced by the applicant on her return to China as a single mother would not be at a level as to constitute serious harm for the purposes of the Convention[18];
b)whilst the applicant asserted that her daughter had "diseases", the Tribunal noted there was no medical evidence in support of that claim and rejected it[19]; and
c)the discrimination faced by the applicant's daughter, as the child of a one parent family who was born overseas would be of a low level and would not constitute serious harm. The Tribunal did not accept that the applicant would be unable to afford to support her daughter if she were to return to China[20].
[18] CB 130 [30]
[19] CB 130 [30]
[20] CB 130 [30]
The Tribunal also considered whether the applicant and her daughter met the alternative criterion in s.36(2)(aa) of the Migration Act. Although the Tribunal accepted that the applicant had attended Local Church gatherings in Australia, it found that this did not amount to a real risk that the applicant or her daughter would suffer significant harm[21]. For this and the reasons already given, the Tribunal concluded that the applicants were not persons to whom Australia owed protection obligations under s.36(2)(aa) of the Migration Act and affirmed the delegate's decision.
[21] CB 131 [32]
The present proceedings
These proceedings began with a show cause application filed on 28 January 2014. The applicant continues to rely upon that application. In it she asserts:
Orders sought by Applicant
1, I disagree with Immigration and RRT's decision. They did not consider that my child and my 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 returned. They did not trusted me and have [prejudice] 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 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. (errors in original)
The application is supported by a short affidavit by the applicant which I treated as a submission.
I have before me, as evidence, the court book filed on 11 April 2014.
Only the Minister took up the opportunity to file written submissions in relation to this matter.
In her oral submissions, the applicant expressed her strong disagreement with the Tribunal’s decision. She believes that she was treated unfairly by reference to her migration history. The Tribunal did place some emphasis on her delay in seeking protection. However, the Tribunal’s conclusions set out at [24] of its decision record[22] were open to it on the material before it.
[22] CB 129
The applicant asserts that the Tribunal showed pre-judgement or prejudice. In my view, that assertion reflects a misunderstanding. The Tribunal was under a statutory obligation to invite the applicant to a hearing because it was unable to make a favourable decision on the papers. The Tribunal extended that invitation and the applicant accepted it.
The Tribunal used that opportunity to question the applicant about her claims. The Tribunal’s concerns as a result of what occurred at that hearing were increased rather than allayed. However, there is nothing to support the assertion of pre-judgement. The adverse credibility conclusions reached by the Tribunal were open to it on the material before it.
The applicant is also concerned that her daughter’s circumstances were not considered by the Tribunal. That is incorrect. The Tribunal dealt with that issue at [29] and [30] of its reasons[23]. The applicant considers that their daughter suffers from developmental problems. She told me that her daughter is aged seven and a half, but it is still in grade 1 at school. She told me that her consultations with the school and a medical practitioner did not result in an assessment that her daughter has any particular problems. She was not able to present to the Tribunal either any medical assessment or any assessment from the school that her daughter has developmental problems. In the circumstances, I see no arguable case of error on the part of the Tribunal in dealing with that issue.
[23] CB 130
In other respects, I agree with and adopt the Minister’s submissions.
Ground 1
It appears that the reference in Ground 1 to the decision of “Immigration” is a reference to the delegate's decision. That decision is a primary decision within the meaning of s.476(4) of the Migration Act. As such, the delegate's decision is not subject to review by the Court[24].
[24] Migration Act, s.476(2)
Grounds 1, 2and 3
Grounds 1, 2 and 3 essentially assert that the Tribunal failed to consider the applicants' claims and, in particular, their fear of persecution should they return to China. Factually these grounds are misconceived and must fail. The Tribunal's decision record discloses that it considered each and every claim raised by the applicants. Indeed, much of the decision is referrable to the question of whether the applicants' claims gave rise to a well-founded fear of persecution. These grounds confuse the fact that the Tribunal “did not accept that the applicant was a Local Church member or had involvement with the Local Church in China”[25] with a failure to consider the applicant's claims. At [19]-[24], the Tribunal gave detailed reasons as to why it did not accept that applicant's claims in respect of her religion and rejected them. The Tribunal also considered any social discrimination that may be faced by the applicants but concluded that it would not be of such a level as to constitute serious harm.
[25] CB 126 [18]
Ground 3
Ground 3 raises a further distinct claim that the Tribunal did not trust the applicant and was biased. This ground permits two possible readings. On the first reading, the applicants challenge the Tribunal's finding that the applicant was untruthful and therefore lacking in credibility. As I have already stated, this ground must fail. Save in exceptional circumstances[26], which are not apparent in this matter, the Court cannot disturb credibility findings nor the weight to be attached to evidence as determined by the Tribunal. It is trite to observe that credibility findings are within the realm of the Tribunal par excellence[27]. The Tribunal gave detailed and cogent reasons in support of its conclusions. As such, there is no proper basis upon which the Court could intervene and substitute its own factual findings for those of the Tribunal[28].
[26] For example, SZLGP v Minister for Immigration & Anor [2008] FCA 119 where Gordon J found that the Tribunal's credibility findings were unsupported by factual findings
[27] Re Minister for Immigration and Others; ex parte Durairajasingham (2000) 58 ALD 609 at [67]
[28] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
On an alternate reading of Ground 3, the applicants raise an unparticularised complaint of actual or apprehended bias against the Tribunal. An allegation of actual bias must be “clearly alleged and proved” and only in “rare and extreme” cases will actual bias be disclosed by the Tribunal's written reasons alone[29]. Ground 3 does not meet this strict threshold and must fail.
[29] SBBS v Minister for Immigration (2002) 194 ALR 749 at [43] to [44]
The three grounds under the heading, “Grounds of Application” reiterate the applicant’s protection claims.
The last ground does raise the assertion that the Tribunal failed to consider the reality that both the applicant’s child and she would be denied by Chinese society. As I have already noted, the applicant’s claims concerning her daughter were dealt with by the Tribunal. The applicant’s claims concerning herself focused on her asserted Christian faith which was rejected by the Tribunal and her use of false documents to travel from Malaysia to Australia. Those claims were considered by the Tribunal.
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Rules 2001(Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. When I invited the applicant to make submissions on costs, she remained silent.
I will order that the first 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 thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 October 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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