SZTYR v Minister for Immigration

[2015] FCCA 869

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTYR & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 869

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

First Applicant: SZTYR

Second Applicant: SZTYS

Third Applicant: SZTYT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 527 of 2014

Judgment of: Judge Street

Hearing date: 7 April 2015

Date of Last Submission: 7 April 2015

Delivered at: Sydney

Delivered on: 7 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms A. Wong
DLA Piper

ORDERS

1. The application be dismissed.

2. The First Applicant and Second Applicant pay First Respondent’s costs fixed in the sum of $4600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 527 of 2014

SZTYR

First Applicant

SZTYS

Second Applicant

SZTYT

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958, in which the applicants seek a Constitutional writ in respect of the decision of the Tribunal made on 7 February 2014, affirming the decision of the delegate not to grant the applicants’ Protection (Class XA) visas. 

2. The grounds refer to an attachment to the application, which states as follows:

   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 Christian in Chian 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 our risk, especially my child due to my commitment of paralysing if we return to origin.

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

   5, RRT treat my case unfair and unreasonable and did not consider that I will be punished by the Chinese government due to family planning issue.

   The Ground 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 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 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.

3. The first applicant is the only one of the applicants to advance positive claims of fear of persecution.  No claims at all have been advanced by the second applicant, although the second applicant is a member of the family unit of the first applicant, and the third applicant is a child. 

4. It is clear from the decision of the Tribunal that the Tribunal did not accept the credibility of the first applicant, and materially found that the first applicant had contrived all the main claims provided in support of the application, with the belief that it would enable her and the other applicants to obtain protection visas.  That adverse finding was open on the material before the Tribunal.  The finding cannot be said to lack an evident and intelligible justification. 

5. It is relevant in relation to that finding to identify that the first applicant came to Australia on a student visa in 2008.  That student visa expired on 15 March 2010.  The second applicant also came to Australia in 2008 and his visa expired also on 15 March 2010.  There is no evidence from the second applicant as to any fear of persecution, nor any evidence in support of the first applicant’s assertion of fear based on her faith and the practising of her faith of Christianity, although the second applicant’s application, like the first applicant’s application, identifies his religion as being Christian.

6. It was in the circumstance of the expiry of the first and second applicants’ visa applications, and continuing to reside in Australia unlawfully, and the failure to make any protection visa until 14 September 2012, that the claims of the applicants came to be evaluated.  It is clear that the Tribunal took into account the applicants’ written claims, as identified in para.14 of the Tribunal’s decision, and it is clear that the facts identified earlier in the Tribunal’s decision reflect details obtained from the applicant’s statement.  The Tribunal also identified that it had listened to the interview of the applicant with the delegate on 18 March 2013, and the applicants appeared before the Tribunal on 6 February 2014, and the first applicant gave evidence assisted by an interpreter. 

7. It is clear from the decision of the Tribunal that the Tribunal carefully considered the claims of the applicant and the applicant’s evidence, and relevantly found in paras.41, and 44 as follows:

   41.    The Tribunal has considered all the evidence provided in support of the application and it is not satisfied that Applicant 1 is a credible witness or that she provided an accurate and truthful account of her own circumstances or the circumstances of the other applicants.

   …

   44.    The Tribunal has considered the applicant’s claim that she is a committed local church member who participated in religious activities in China and Australia. She claims that for many years after she arrived in Australia she did not participate in the local church in Sydney, preferring to participate in the church in China via internet, because she could not find it.  She claims that she will continue to be involved with the church if she returns to China. The Tribunal accepts that the applicant and her partner have been participating in a local church in Sydney since July 2012.  However, after considering the applicant’s long delay in joining the church, the reasons she provided for the delay, the applicant’s limited understanding of the church’s primary and distinct beliefs and activities, and the reasons she provided for her limited knowledge, the Tribunal has formed the view that the applicant’s involvement with religion in Australia has been contrived to enhance the application. The Tribunal is not satisfied that the applicant became involved with religion in Australia because she has a genuine interest in it. Applicant 1 claims that she did not participate in the local church from 2008 until 2012 because she could not find one. However, the Tribunal is not satisfied that the applicant either looked for a church or had any interest in finding one. The Tribunal is satisfied that finding a local church in Sydney is an easy task for anyone interest in the church. It finds that if Applicant 1 wanted to find such a church she had the time, opportunity, and ability to do so. The Tribunal finds that the applicant became involved with the local church in 2012 to enhance the protection visa application. The Tribunal does not accept as credible Applicant 1’s claim that she and her partner have a genuine interest in religion; or that Applicant 1 was involved with the local church in China; or that she sent religious literature to her relatives in China which has attracted the adverse interest of the PRC authorities; or that she has a genuine intention of participating in religious activities in China which will attract the adverse interest of the PRC authorities. It finds that all these claims were contrived by Applicant 1 to support the protection visa application.

8. It was clear on the evidence before the Tribunal that the first and second applicants are citizens of China, and that the applications were considered by reference to that country.  The Tribunal concluded, relevantly:

   52. The applicant claims that she will not have the resources to pay the fine in China.  However, the Tribunal has formed the view that the applicant has concealed her actual financial situation from the Tribunal. The Tribunal finds that the applicant and her partner will continue to constitute a family unit in the reasonably foreseeable future. It is satisfied that they have and will continue to have the ability and capacity to pay any fine imposed against them by the PRC authorities. The Tribunal is satisfied that Applicant 3 will be registered and she will not suffer the harm which her mother claims for her.

   53. Accordingly, the Tribunal is not satisfied that there is a real chance that Applicant 1 will be subjected to persecution in China for reasons of religion, or her membership of a particular social group, with that group possibly being ‘women who have children outside marriage’, or any other Convention reason. 

   …

   56. The Tribunal is satisfied by information from external sources relating to the application of the PRC government’s family planning laws, that registering a child born out of wedlock is a straightforward procedure. In the present matter, the applicant’s mother or parents will have to undertake certain steps, as outlined in the information referred to at the hearing, and pay a fine before the child can be registered. The Tribunal is satisfied that once the fine is paid, the child will be registered, and she will have access to the rights and privileges of other PRC children.

   57. The applicant’s mother claims that she cannot afford to pay the fine and that the applicant will remain unregistered. However, in view of the above findings, that the applicant’s parents have the intention and ability to pay the fine, the Tribunal has formed the view that the applicant’s mother has contrived these claims for her daughter to enhance the protection visa application. The Tribunal does not accept as credible the claim that the applicant will be a black child in China or that she will be subjected to circumstances amounting to persecution for reasons of her membership of a particular social group, with that group possibly being black children in China.

   58. Accordingly, the Tribunal is not satisfied that there is a real chance that Applicant 3 will be subjected to persecution in China for a Convention reason. 

   …

   61. The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that the applicants will suffer significant harm under the complementary protection criterion.  

   62. The Tribunal has considered the claims provided by Applicant 1 in support of the application.  However, in view of the above findings regarding the credibility of those claims, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm in China for any of the reasons provided.

   63. The Tribunal has found that Applicant 1 contrived all the main claims provided in support of the application. The Tribunal has rejected the claim that the applicants face harm in China for their involvement in religion or for breaching the PRC government’s family planning provisions. The Tribunal finds that similar considerations apply with regards to complementary protection; and it is not satisfied that there is real risk that the applicants will be subjected to significant harm for their involvement in religion or for breaching the PRC government’s family planning law. It finds that these claims were, for reasons already provided, contrived by Applicant 1 to enhance the protection visa application.

   64. The Tribunal has accepted the claim that the applicants have attended religious activities in Australia. It has found that their involvement in those activities was undertaken for the purpose of enhancing their protection visa application. The Tribunal is not satisfied that the applicants have a genuine interest in religion and it does not accept as credible the claim that they will participate in religious activities in China which will attract the adverse interest of the PRC authorities in the reasonably foreseeable future. It finds that their involvement with religion in Australia will not be a matter of particular or adverse interest to the PRC authorities. The Tribunal is not satisfied that the applicants are at risk of being subjected to significant harm by the authorities in China for participating in religious activities in Australia.

   65. Accordingly, it finds that there is no real risk that the applicants will suffer significant harm under the complementary protection criterion for any of the reasons provided.

   66. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

9. In relation to the first ground, it is clear that the Tribunal carefully considered the claims of the applicant in relation to her alleged faith and the findings made were open on the material before the Tribunal.  In relation to ground 2, it is not the case that the Tribunal came to an adverse theory as to the first applicant’s credibility based on her answers as to her knowledge of the alleged faith alone, and it is clear that the adverse finding of the Tribunal as to the first applicant’s alleged faith was open on the material before the Tribunal. 

10. In relation to the third ground concerning a fear based on alleged proselytising, the Tribunal did not accept the credit of the applicant in this regard, nor was this a claim that the applicant in fact advanced before the Tribunal, and it cannot be said to have been an essential integer of the first applicant’s claims.  Further, the adverse finding in relation to the first applicant’s credit in respect of her alleged faith means there is no substance in relation to ground 3. 

11. In relation to ground 4, it is clear from the Tribunal’s decision that the Tribunal had regard to the first applicant’s evidence, and her explanations, and her statement, and it was open to the Tribunal to make the adverse finding as to credit of the applicant.  In relation to the fifth ground, it is clear that the Tribunal carefully considered the fears and claims of the applicant and the adverse findings as to family planning issues at paras 49 and 50 made were open to the Tribunal. 

12. To the extent that the application identifies four further propositions under the heading Grounds of the Application, there is no substance in any of those grounds and they are impermissible challenges to findings of fact. It is clear the Tribunal properly considered the applicant’s fears and made adverse findings that were open on the evidence.  The application is dismissed. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 April 2015