SZTVZ v Minister for Immigration

[2015] FCCA 2245

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2245

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal denied the applicant procedural fairness and reached the wrong conclusion.

Legislation:

Migration Act 1958, ss.36, 91R, 420, 422B, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Applicant: SZTVZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 300 of 2014

Judgment of: Judge Cameron

Hearing date: 23 July 2015

Date of Last Submission: 23 July 2015

Delivered at: Sydney

Delivered on: 23 July 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr S. Speirs of Clayon Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 300 of 2014

SZTVZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who last arrived in Australia on 5 November 2012.  On 17 January 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in China because of his religious beliefs and because he had breached China’s one child policy.  On 24 July 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were relevantly set out in the Tribunal’s decision as follows.

2. In his protection visa application the applicant claimed that:

   a)in 2001 and 2002 he and his wife had difficulties with the Chinese authorities after the birth of their second child.  He had to pay 20,000 Yuan to stop his wife having a “ligation operation”;

   b)he was introduced to Christianity in April 2012 and started attending an unregistered house church.  On 28 October 2012 he was arrested while attending a gathering and accused of participating in a cult.  At the time he held a visa to travel to Australia so he asked to use the toilet and took the opportunity to escape the police station and flee to Australia;

   c)he had been attending church in Australia; and

   d)he would not have the freedom to practise his religion if he returned to China.  The authorities would seek to harm him for his Christian beliefs and for having had a second child.

3. The applicant made the following additional claims at a Tribunal hearing on 7 January 2014:

   a)he had been arrested on 28 September 2012.  He later said it was on 28 October 2012;

   b)he first became involved with Christianity in September 2012.  He then said it was in August 2012 and later that it was in July 2012;

   c)he was embarrassed by his body when naked.  He became a Christian because reading the Bible reduced his feelings of shame over his physical appearance.  He had been afraid that if he had remained in China he would have been arrested for being a Christian, taken to a police station and forced to remove his clothing, which would have humiliated him;

   d)his second child was adopted.  When it was put to him that this was inconsistent with his evidence in his protection visa application, the applicant said that his wife had been pregnant with their second child but had suffered a miscarriage.  He said that she then went into hiding and returned a month later with an adopted child and he paid a fine for the adopted child;

   e)when he was seventeen some land belonging to his family had been taken by the Chinese authorities; and

   f)he was unable to recall anything from the Bible because he was tired and inarticulate.  The inconsistencies in his evidence arose because he was tired and could not remember some things.

4. The applicant provided to the Tribunal a membership certificate issued to him by the Campsie Chinese Congregational Church on 8 December 2013 and photographs he claimed were taken on the day he received the certificate.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal did not accept as credible the applicant’s claims that he had been implicated in religious activities in China, that he had been detained for attending an underground church or that he was at risk of being detained and humiliated by the Chinese authorities because he was a Christian and had escaped from police custody.  It found that the applicant had contrived his claims relating to Christianity in order to enhance his visa application.  In that regard the Tribunal noted that:

   i)the applicant gave inconsistent evidence about when he first became involved with Christianity and when he was arrested.  The Tribunal did not accept his explanation that he had been tired and had difficulties remembering his claims.  It found that the discrepancies in the applicant’s evidence arose because his claims were contrived; and

   ii)the applicant was unable to discuss his claimed religion and knowledge about it.  The Tribunal rejected his claims that he had been tired and inarticulate and found that he was unable to discuss his claimed religion or provide information about it because he was not a Christian and had no real interest in religion;

   b)while accepting that the applicant had attended church in Australia, the Tribunal did not accept that he had done so because he had a real interest in religion. It formed the view that the applicant had become involved in religious activities in Australia for the sole purpose of strengthening his claim to be a refugee and so, pursuant to the then s.91R(3) of the Act, it disregarded that conduct;

   c)the Tribunal also did not accept that the applicant had a genuine interest in religion or had been involved with religion in China and was not satisfied that he would participate in any religious activities which would attract the adverse interest of the Chinese authorities if he returned to China;

   d)the Tribunal considered that the applicant had given vague and inconsistent information in support of his claim that in 2001 or 2002 he had had difficulties with the authorities because he and his wife had had a second child.  It also noted that the applicant had claimed at its hearing that land belonging to his family had been taken away when he was seventeen but found that he had not provided information on that issue or stated whether it would influence his circumstances in the future.  On the information provided by the applicant, the Tribunal was not satisfied that at the time he departed China in 2012 he had had any difficulties with the authorities related to the Chinese government’s family planning laws or its land acquisition activities.  It was not satisfied that the applicant faced a risk of harm in China for those reasons; and

   e)the Tribunal noted that the applicant had raised others matters related to his physical condition but found that there was no information to indicate that those issues were Convention-related or that the difficulties he anticipated as a result of those matters would amount to significant ham.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal is not satisfied that there is a real chance that I will suffer harm or for any other Convention reason.  The Tribunal made error in this finding.

   2.The Tribunal is not satisfied that I am a person to whom Australia has protection obligations under Refugees Convention.  The Tribunal did not refer to any independent information for the consideration of my application.  The Tribunal failed to carry out its statutory duty.

2. In his affidavit in support of his application the applicant also alleged:

   I was denied procedural fairness in connection with the making of the decision.

3. The applicant raised further matters in written submissions received by the Court on 21 July 2015, and also in his oral address at the hearing of this application.

Ground 1

1. The first ground of the application invited the Court to reach a conclusion on the merits of the applicant’s visa application different from the one the Tribunal reached.  As explained earlier in these reasons, the Court has no power to review that aspect of the Tribunal’s reasons.  On that basis, the first ground of the application did not identify a basis for the Court to set the Tribunal’s decision aside.

Ground 2

1. The essence of the second ground of the application was that the Tribunal did not refer to independent information when considering the applicant’s application.  It must first be observed in relation to this allegation that the Tribunal was not obliged to refer to independent information.  The second point to make in relation to this allegation is that in fact the Tribunal did refer to independent information and did so at some length in para.18 of its reasons.  Consequently, the second ground of the application does not disclose a basis upon which the Tribunal’s decision should be set aside.

Ground 3

1. The third issue raised by the applicant was the allegation made in his affidavit that he had been denied procedural fairness. The Tribunal’s duty to provide procedural fairness is, by virtue of s.422B of the Act, codified in div.4 of pt.7 of the Act. The applicant did not particularise his allegation that he had been denied procedural fairness, but of all the sections in div.4 of pt.7, the only one which might arguably have had some relevance to this allegation was s.425 which relevantly provides:

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   …

2. The applicant was invited to a hearing which he attended and, as paras.12, 14, 16, 17, 18 and 19 of the decision record disclose, the Tribunal put to the applicant issues which were determinative of the review.  I conclude that the Tribunal satisfied its procedural fairness obligations to the applicant and that the matter he raised in his affidavit does not disclose a basis to set the Tribunal’s decision aside.

Ground 4

1. In paras.9 and 10 of his written submissions the applicant stated that the Tribunal failed to consider whether he would continue to be a member of the Christian faith in China and whether he would be persecuted in China as a result.  These allegations failed to take account of the Tribunal’s findings at paras.30 and 31 of its decision record that the applicant was not a Christian and had no real interest in religion.  Its findings were a rejection of the applicant’s allegation that he had been involved with religion in China.  Accordingly, there was no reason for the Tribunal to consider whether the applicant would pursue the Christian faith in China and whether he would suffer persecution as a result.

Ground 5

1. In paras.11, 12 and 13 of his written submissions the applicant referred to the former sub-s.420(1) of the Act, and by implication alleged that the Tribunal had breached it. At the time of the Tribunal’s decision sub-s.420(1) provided:

   420   Refugee Review Tribunal’s way of operating

   (1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

2. Section 420(1) did not establish procedures that were required by the Act to be observed: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324 at 14; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 635 [77], 642-643 [108], 659 [158]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at 342-343 [12], 359 [53]. Division 3 of pt.7, in which s.420 is located, does not set out how the Tribunal is to conduct a review, the provisions of div.4 of pt.7 of the Act do that. The allegation therefore involves a misconception of s.420. Consequently, any perceived failure by the Tribunal to comply with the exhortation which was found in s.420(1) does not ground a finding of jurisdictional error.

Ground 6

1. In para.14 of his written submissions the applicant alleged the Tribunal erred in reaching the findings which it expressed.  As noted earlier in these reasons, the Court’s task is not to reconsider the Tribunal’s findings of fact but to determine whether it is guilty of jurisdictional error, which can be explained as the Tribunal not following proper procedure or misapplying the law in reaching its conclusions.  The fifth ground raised by the applicant does not disclose error on the Tribunal’s part. 

Ground 7

1. In para.15 of his written submissions, the applicant said:

   This RRT decision in [sic] not on [sic] my best interest.

2. A matter of the sort alleged by the applicant is not a basis for finding jurisdictional error in that it misconceives the Tribunal’s task, which is to consider whether an applicant satisfies the criteria for the grant of a protection visa, not whether he or she would be better off if granted such a visa. 

Conclusion

1. For all these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  19 August 2015