SZTZU v Minister for Immigration

[2014] FCCA 2108

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZU & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2108

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no arguable case raised by the applicant – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.91R, 424A, 476

Migration Regulations 1994 (Cth), reg.2.08

SZTBV v Minister for Immigration & Anor [2014] FCCA 2106
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster  v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 203 ALR 112

First Applicant: SZTZU

Second Applicant: SZTZV

Third Applicant SZTZW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 601 of 2014

Judgment of: Judge Nicholls

Hearing date: 9 July 2014

Date of Last Submission: 9 July 2014

Delivered at: Sydney

Delivered on: 12 September 2014

REPRESENTATION

Applicant: First Applicant in person, and on behalf of the second applicant and as litigation guardian for the third applicant

Appearing for the Respondents: Ms C Hillary

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 12 March 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first and second named applicants pay the first respondent’s costs set in the amount of $2,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 601 of 2014

SZTZU

First Applicant

SZTZV

Second Applicant

SZTZW

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 March 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 February 2014 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from it.

2. The applicants are all nationals of the People’s Republic of China (“China”) (CB 13, CB 28 and CB 79). The first and second named applicants applied for protection visas on 7 December 2012 (CB 1 to CB 65). The first named applicant before the Court arrived in Australia on 13 June 2007 as the holder of a student visa She was granted another student visa which ceased on 15 March 2010. She remained in Australia unlawfully after this date (CB 96).

3. The second named applicant arrived in Australia on 14 April 2007, also as the holder of a student visa. He was granted a number of subsequent visas, the last of which ceased on 17 February 2011. He also remained in Australia unlawfully after this date (CB 55 and CB 96).

4. The first and second named applicants described their relationship as being a “de facto marriage” (CB 95). The third named applicant before the Court is their son, born in Australia after his parents made the application for the protection visa (CB 74). He was added to his parents’ application on 29 May 2013 (noting that as he was born after the first and second named applicants had lodged their application, he is deemed to be included in their application under reg.2.08 of the Migration Regulations 1994 (Cth)) (CB 75 to CB 85).

5. The first and second named applicants initially submitted written statements setting out their claims (CB 59 to CB 65). They were assisted in their application by a registered migration agent (CB 42 to CB 44).

6. The first named applicant claimed to have been introduced to the practice of religion in an “underground Christian Assembly” by a relative (CB 60). She claimed to have subsequently been baptised. In May 2007 while attending a Bible gathering, the applicant claimed that she was arrested by police and detained (CB 61). She was subsequently released but she was warned not to continue her involvement with the underground church. She had attended church services after arriving in Australia (CB 61).

7. The first named applicant claimed to fear returning to China for two reasons (CB 62). One, that she would continue to attend illegal church gatherings in China. Two, she feared discrimination, including from members of her family, because of the birth of her child in circumstances where she and the child’s father, the second named applicant, were not married. Further, she claimed the child would have difficulties in obtaining “registration” in China.

8. The second named applicant claimed to have converted to Christianity after meeting the first named applicant (CB 62 to CB 65). As such, he also feared harm in China on religious grounds.

9. The delegate rejected their claims to be adherents of the church or to be genuine and committed Christians. The delegate also found that the child’s circumstances would not result in serious or significant harm to them if they returned to China (CB 93 to CB 119).

The Tribunal

1. The applicants applied for review to the Tribunal on 30 August 2013 (CB 121 to CB 126). They were again assisted by a registered migration agent (CB 127). The applicants attended a hearing before the Tribunal on 12 December 2013. At the hearing the applicants reiterated their earlier expressed claims and added claims concerning the difficulties to be encountered by their child. Their representative was also present (CB 166). The representative made written submissions after the hearing which sought “to address the issues raised during the applicants’ hearing… as to the situation of underground Christians in China” (CB 189). The submissions referred to country information about this issue.

2. The Tribunal accepted some aspects of the applicants’ claims, but did not find all of their claims to be credible. The Tribunal found some aspects to be exaggerated, some aspects speculative, and in other respects, contrived ([38] – [39] at CB 221).

3. The Tribunal noted the representative’s submissions that the first named applicant had provided a consistent account of her claims, but found that her testimony was not entirely credible ([40] – [41] at CB 221). It found that she was willing to exaggerate and embellish her claims. The Tribunal also considered country information, and came to the conclusion that the applicants would not be persecuted for attending underground churches in China, particularly in their home province of Fujian ([41] at CB 221).

4. The Tribunal accepted that the first named applicant had attended church in China, but rejected her claim to have suffered harm as a result of any religious activity ([46] at CB 223).

5. The Tribunal accepted, albeit with some reservations, that she was a Christian and had been attending church in Australia because she was a genuine Christian. It, therefore, did not disregard this conduct pursuant to s.91R(3) of the Act ([47] at CB 223).

6. While the Tribunal found that the second named applicant’s evidence was of concern, it accepted that he had attended church in Australia and it did not have the sole purpose of strengthening his refugee claims. It, therefore, did not disregard this conduct pursuant to s.91R(3) of the Act ([50] at CB 224).

7. The Tribunal accepted that if the applicants attended church they would do so with the third named applicant ([51] at CB 224). Despite concerns about her evidence, and the rejection of some factual claims, the Tribunal accepted that the first named applicant, and the other applicants, would attend an unregistered church in Fujian, the first and second named applicants’ home province ([51] at CB 224).

8. The Tribunal considered country information before it, including that referred to in the applicants’ representative’s post-hearing submissions. It found that while some churches in China were the subject of adverse action by the authorities, the applicants’ church (“Christian Assemblies”, otherwise known as “Little Flock” churches) was separate from those which were of concern ([52] at CB 224 to [53] at CB 225).

9. The Tribunal did not accept that the first named applicant had ever been of interest of the Chinese authorities, and given the first and second named applicants’ intention to practice in an unregistered Little Flock Church or Christian Assembly, there would not be a real chance that they would face serious harm ([55] at CB 225). Nor would they face such harm from having attended the Christian Assembly Church in Australia ([57] at CB 225 to CB 226).

10. The Tribunal relied on its findings of fact to find that the applicants would not face a real risk of significant harm by reason of religious practice if they were to return to their home province ([60] at CB 226).

11. The Tribunal found that the third named applicant was born in breach of relevant “Population and Family Planning” laws in China. However, based on the first named applicant’s evidence, the Tribunal found that the first and second named applicant would be able to pay a relevant “social compensation fee” and, subsequently, the third named applicant would be able to obtain household registration ([62] at CB 226 to [63] at CB 227).

12. The Tribunal had concerns about the first and second named applicants’ reasons for not marrying, and the first named applicant’s evidence regarding her relationship with her family. The Tribunal rejected the first named applicant’s claims that she would be separated from her child by the second named applicant’s family. It rejected the applicants’ claims that any of the applicants would face harm for any reason in relation to their respective families ([66] at CB 227 to [69] at CB 228).

13. Further, the Tribunal did not accept that any social “opprobrium or discrimination” the applicants may face because of the third named applicant being born out of wedlock would amount to serious or significant harm ([71] at CB 228). In all, the Tribunal affirmed the delegate’s decision not to grant the applicants’ protection visa on 6 February 2014.

Application Before the Court

1. The grounds of the application before the Court are in the following terms:

   “1. The tribunal has bias against my husband simply because he can’t tell ten commandments.

   2. The tribunal has bias against me for my background in Fujian.

   3. The tribunal says we can go to the government organized church which is not my practice of my belief. This is unfair.”

Before the Court

1. At the first Court date in this matter, the first named applicant appeared in person on behalf of the second named applicant. She was assisted by an interpreter in the Mandarin language. The first named applicant was appointed as the litigation guardian for the third named applicant. I set their matter down for mention on 9 July 2014 so as to give the applicants the opportunity to obtain legal advice, given the grounds they had advanced and the nature of these proceedings. They were also given the opportunity to file any amended application and evidence in support through orders made at that time. They were on notice that if nothing of substance was filed, the Minister may press for an immediate “show cause” hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

2. On that date the first named applicant appeared in person. She was assisted by an interpreter in the Mandarin language. She said she would speak on behalf of the second named applicant. Ms C Hillary appeared for the Minister.

3. Nothing further had been filed by the applicants. The Minister pressed for an immediate show cause hearing, and it was appropriate, in the circumstances, to proceed on this basis.

4. The issue before the Court now is whether the application raises an arguable case for the relief sought.

5. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. As I stated in SZTBV v Minister for Immigration & Anor [2014] FCCA 2106, I note that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster  v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219) or is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

The Applicants’ Complaints Before the Court

1. Before the Court, the first named applicant made the following complaints. She repeated much of the applicants’ claims before the Tribunal. First, that the Tribunal did not believe that the second named applicant, her de facto spouse, was a genuine Christian. Second, that the Tribunal relied on country information concerning religion in certain regions in China which was “not sufficient” for the Tribunal to make its decision. Additionally, that the information relied on by the Tribunal was general and was not relevant to rural areas.

2. Third, that the second named applicant’s parents did not accept her, they only her child, the third named applicant. If the applicants were to return to China, their marriage would only be recognised if the parents were to “agree”. Further, that currently there is contact with the parents “every fortnight”. The first named applicant also submitted that her parents did not accept the third named applicant, and that they had demanded she have an abortion, and she had resisted.

3. Fourth, that the third named applicant, the child, would face “discrimination” because he was born out of wedlock.

4. As the Minister submitted, the first named applicant, in making these submissions to the Court relating to her factual claims to protection, was seeking impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). In relation to the first complaint, the Tribunal accepted that the first named and second named applicants were genuine Christians. In relation to the third and fourth complaints, the Tribunal dealt with these claims in its decision record. It was not persuaded by the applicants’ evidence, and made findings open to it that were probative of the evidence before it.

5. In relation to the second complaint about the Tribunal’s use and reliance on country information, as the Minister submitted, the weight assigned to, and choice of country information, are matters for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). Further, pursuant to s.424A(3)(a) of the Act, the Tribunal is not required to give or put to the applicant general country information on which it relies. Therefore, no procedural fairness complaint rises to establish an arguable case for the relief sought.

6. In all, the complaints put by the first named applicant before the Court do not raise an arguable case for the relief sought.

Consideration of the Grounds of the Application

1. The first ground of the application before the Court alleges bias on the part of the Tribunal. This is said to arise from the Tribunal’s approach to the second named applicant’s inability to give evidence about the Ten Commandments. This complaint appears to be directed to the Tribunal’s findings at [50] (CB 224).

2. This allegation does not raise an arguable case for the relief sought. The Tribunal’s relevant analysis was addressed to the second named applicant’s claim that he was a Christian, and that he would suffer harm for that reason if he returned to China where he would attend at an unregistered house church.

3. The Tribunal considered and assessed the second named applicant’s own evidence in this regard. The Tribunal accepted that it was not surprising that he did not display the same level of knowledge about Christianity as the first named applicant, given that he only became a Christian in 2012. The Tribunal acknowledged that he could not be expected to have extensive knowledge of biblical matters ([50] at CB 224).

4. However, the Tribunal was concerned with the second named applicant’s own evidence that he was familiar with the Ten Commandments. When asked about them, he could not remember them. The Tribunal found that his explanation that he was nervous was not particularly persuasive ([50] at CB 224).

5. The applicants have not put evidence before the Court as to what occurred at the Tribunal hearing, despite opportunity to do so. The Tribunal’s account, contained in its decision record, reveals that the second named applicant made some attempt to answer the Tribunal’s question. It may be that a different Tribunal member may have taken a different view of the second named applicant’s reference to “graven images”, “honouring parents” and “not commit[ing] adultery”.  However, it was reasonably open on the evidence before it for the Tribunal to make the finding that it did.

6. In any event, the Tribunal’s concerns went no further, since given other evidence put by the second named applicant, the Tribunal accepted a central part of his claim that he was brought to the church by the first named applicant in 2012 and had attended church regularly since that time.

7. The test for bias is well settled and essentially directed to the question as to whether the decision maker brought an open mind to the proceedings (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). The applicants’ allegation of bias in this regard is either misconceived or a deliberate misrepresentation of what the Tribunal reasoned. The very fact that the Tribunal found positively for the second named applicant on the question of his Christian practice, despite its concerns, is an indication of the open mind that it was required to bring to the disposition of the review. Ground one does not raise an arguable case for the relief sought.

8. Ground two asserts bias on the part of the Tribunal against the first named applicant because of her “background in Fujian”. It is difficult to see what the complaint is here. In light of what the applicant said before the Court, at best, I understood the complaint to be in relation to the country information that the Tribunal relied upon in finding that followers of “Little Flock” or “Christian Assembly” churches did not receive adverse attention in Fujian province. I have already dealt with the complaint in relation to country information made before the Court above, and as such it does not raise an arguable case for the relief sought.

1. The ground can also be understood as a complaint that the Tribunal exhibited bias in finding adversely to the first named applicant in relation to some of her factual claims about what had occurred in China in the past. For example, that she had been detained for reason of her religious practice.

2. The Tribunal accepted that the first named applicant attended church gatherings in Fujian Province. This was so despite its concerns regarding her credibility and her “tendency to exaggerate and embellish her claims” (CB [46] at CB 223). What the Tribunal was unable to accept was that she had experienced any harm as a result of this religious activity.

3. In the circumstances before the Court the following can be said in answer to this ground. First, the Tribunal’s findings were reasonably open to it on what before it. The evaluation of evidence and its subsequent findings, including findings on credibility were all within its jurisdiction, and for it to make in the exercise of that jurisdiction.

4. Second, no bias is exhibited in these circumstances. Again, the Tribunal’s analysis reveals that, despite its concerns, it was prepared to make some findings positive to the first named applicant’s case. The applicants’ allegation of bias in these circumstances, and in relation to the conclusion that the first named applicant did not suffer any harm, is no more than a disagreement with the Tribunal’s finding. In the circumstances, the ground seeks impermissible merits review

   
   

   (Wu Shan Liang). Therefore, the ground does not raise an arguable case for the relief sought.

5. Ground three asserts that it was “unfair” of the Tribunal to find that on return the applicants could attend the “government organised church” which was not the church in which the first named applicant says she would practice her beliefs.

6. It is the case that an expectation that a person should modify their behaviour to avoid harm, or to act discreetly to avoid harm, is revelatory of jurisdictional error (S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 203 ALR 112).

7. However, on a plain, let alone fair, reading of the Tribunal’s decision record this is not a case where the Tribunal proceeded on the basis that the first named applicant should modify her place, or Church, of Christian practice in order to avoid harm.

8. The Tribunal accepted the applicants’ representative’s post-hearing submissions that in Fujian Province a “banned protestant group”, known as the “Shouters”, was the subject of adverse interest and action by the authorities. It also acknowledged that the “Local Church” has “historically” been branded an “evil cult” ([53] at CB 225).

9. However, the Tribunal found that, based on country information, “the practice of Assemblies or Little Flock Church are separate from those of the Local Church” ([53] at CB 225). That is, it was a different type of underground church and was not subject to the same adverse attention as the “Local Church”. That finding was reasonably open to it on what was before it.

10. The Tribunal rejected any suggestion in the applicants’ representative’s submissions before it that the first named applicant was a member of the “Local Church” ([53] at CB 225). It relied on an assessment of the first named applicant’s own evidence as to her religious practice. It proceeded on the basis that she claimed to be a member of the “Church Assembly” and her own description of her religious practice and country information for this finding ([54] – [56] at CB 225).

11. As stated above, the ground asserts that the Tribunal found the first named applicant could, or would, practice her religion in a government organised church. However, there is nothing in the evidence before the Court to indicate that the Tribunal made any such finding. The Tribunal’s relevant findings, in this regard, arose from an acceptance that she would practice in the “Assemblies” or “Little Flock” Church.

12. The applicants’ complaint therefore is to take issue with the Tribunal’s reliance on country information that the chance of suffering harm for this reason on return to China was remote. In the circumstances where those findings were reasonably open to the Tribunal, and for which it gave cogent reasons probative of the material before it, no arguable case for the relief sought arises.

Conclusion

1. In all, the grounds of the application and the complaints before the Court do not raise an arguable case for the relief sought. Nor can I otherwise see such an argument on the material before the Court. It is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make the order accordingly.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  12 September 2014

Corrections

1. In paragraph 29 the word success was corrected to succeed.