SZTZZ v Minister for Immigration

[2015] FCCA 451

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 451

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa.

ADMINISTRATIVE LAW – Bias.

Migration Act 1958, ss.36, 91R, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTZZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 610 of 2014

Judgment of: Judge Cameron

Hearing date: 6 February 2015

Date of Last Submission: 6 February 2015

Delivered at: Sydney

Delivered on: 6 February 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 610 of 2014

SZTZZ

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 arrived in Australia on 13 January 2008.  On 15 December 2011 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in China because of her religious beliefs.  On 22 June 2012 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.  She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant.  A previous Tribunal decision dated 17 October 2012 was quashed by order of this Court on 18 October 2013.

3. In these proceedings for judicial review the Court cannot re-consider 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 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

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

Background facts

1. As summarised by the Tribunal, the applicant relevantly made the following claims:

   a)she became a Catholic after she married her husband in 1989;

   b)in November 2003, while attending a three-day religious retreat, she was detained by the police, held for three days, questioned and threatened;

   c)she came to Australia on 13 January 2008 on a student guardian visa;

   d)in November 2009 her husband was detained because he was involved in the building of a church.  He and his family had had some difficulties with the authorities because of their religious activities;

   e)in 2006 the authorities destroyed a printing factory which her underground church had relied on to produce their literature.  She and her husband subsequently found a new printing company and she took over the task of ordering and delivering the material;

   f)on 20 August 2011 the police raided and searched her house.  They found receipts issued to her by the printing company which implicated her in the procurement of illegal religious material.  The police started looking for her but stopped when they were told she was in Australia.  They also visited her husband’s employer looking for him but he had not been present and he did not return home after hearing that the police were looking for him.  The police would seek to punish her and her husband for their involvement in the printing of illegal religious material;

   g)her husband and his family owned a piece of land which was near a polluted river.  Her husband and other residents had approached the suspected polluting company and the environmental protection agency and, as a result, from April 2011 he was harassed by the provincial authorities and the company; and

   h)she was inclined to be involved in her husband’s protest activities which would further attract the adverse interest of the authorities.  She would be arrested and tortured for her own and her husband’s activities.

2. The applicant made the following additional claims at a Tribunal hearing on 23 January 2014:

   a)she had been told by her priest, whose name she did not know, that the person who had previously managed the church’s printing, whose name she also did not know, had been detained in 2006 and imprisoned for three years;

   b)the police had not previously taken action against her because she had just been following her religion but when they found the receipts they had the documentary evidence they required to arrest her.  She had kept the receipts so she could be reimbursed by the church but had forgotten to destroy them before leaving for Australia;

   c)as she had been implicated in an illegal activity she assumed that there might be charges pending against her;

   d)she had not applied for a protection visa earlier because she had only realised in August 2011, when the police found the printing receipts, that it was dangerous for her to return to China; and

   e)she attended a Catholic church in Sydney.  The church services were conducted in English and even though she did not understand or communicate in English she attended because she needed a venue to practise her religion.  It was also not convenient for her to attend the Chinese language Catholic churches and she preferred to attend a church close to her home.

3. After taking evidence from the applicant, the Tribunal adjourned its hearing in order for her to arrange for witnesses who could give evidence to support her claims.  The adjourned hearing was scheduled for 14 February 2014.  On 13 February 2014 an officer of the Tribunal contacted the applicant’s migration agent who advised that the applicant’s son and husband would be available as witnesses at the adjourned hearing.  However, on the adjourned hearing date the applicant attended alone.  She said that her son had refused to attend because he was afraid that he would be arrested and deported and that she had not made arrangements for any other witnesses to appear.  The applicant did produce a piece of paper which she said bore the name of her priest in China but said that she did not have his contact details.  The Tribunal advised the applicant that it did not have the capacity to find the priest if she did not provide his contact details and would make a decision on her application for review on the information it had.

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.

2. In reaching its decision, the Tribunal stated that it was not satisfied that the applicant was a credible witness or that her claims were credible.  It did not accept any of her claims about events which occurred in China and found that she had contrived them in order to enhance her protection visa application.  In that regard:

   a)the Tribunal found the applicant’s evidence regarding her religious activities in China to be vague and unconvincing.  In particular, she did not know the name of her priest or the identity of the previous church member who had organised the printing and was consequently imprisoned for that activity.  The Tribunal found that the applicant could not provide those details because she had not been involved with a church in China and had contrived the claim in order to enhance her application for protection.  The Tribunal also found contrived the applicant’s claims that she had been implicated in illegally printing religious material, that another person had been imprisoned for undertaking the same activity and that the authorities had incriminating receipts which would result in her prosecution;

   b)the Tribunal found that if, as the applicant claimed, when she arrived in Australia she had already been detained in 2003, had been involved in illegal activities for her church which led to the imprisonment of her predecessor and if her husband and family had been harassed by the authorities for their involvement with the underground church movement, those circumstances would have alerted her to the possibility that she required protection when she arrived in Australia.  The Tribunal did not accept her explanation that the authorities could not take action against her because they had no documentary evidence, finding that such evidence would not have been required if the applicant had indeed been implicated in illegal activities.  The Tribunal further noted that even though the applicant claimed that within eighteen months of her arrival in Australia her husband participated in protests which led to the authorities targeting him and his family, she still did not apply for a protection visa.  It noted that she claimed that it only became apparent to her that she was at risk of harm when the receipts were found in August 2011 but was not satisfied that her reasons adequately accounted for her delay in seeking protection.  The Tribunal concluded that the applicant had not sought protection for a considerable period of time after her arrival in Australia because the circumstances she described had not happened and she had not required protection; and

   c)in light of its other findings, the Tribunal was not satisfied that the applicant’s claims that her husband had attracted the adverse attention of the Chinese authorities because of his involvement with the underground church movement and his protest activities against the provincial government were credible.  It found that the applicant had contrived those claims in order to enhance her application for a protection visa.  It found that her further claim that she was inclined to participate in protest activities with her husband was also contrived.

3. The Tribunal went on to consider the applicant’s church activities in Australia. While it accepted that the applicant had attended a church in Australia, the Tribunal found that her evidence indicated that her involvement with that church had been limited and superficial. In that respect it noted that the church conducted its activities in English, a language the applicant did not understand, and found that if she had had a genuine interest in religion she would have made an effort to attend a Chinese language church. The Tribunal was not satisfied that the applicant had a genuine interest in religion, that she attended church in Australia because she had a genuine interest in religion or that she intended to participate in religious activities in China which would attract the adverse interest of the Chinese authorities. It found that her church attendance in Australia had been undertaken for the sole purpose of strengthening her claim to be a refugee and therefore disregarded that conduct in accordance with s.91R(3) of the Act.

Proceedings in this Court

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

   1.The Tribunal member reject my case should not base on that I couldn’t submit the information due to the persecution cause me difficulty/could not obtain.

   2.The member should not reject my application by using his own personal capability to scale me.

   3.The member should not reject me if he thinks that I still need 2^nd interview.

Ground 1

1. As elucidated by her written submissions, the applicant alleged in the first ground of her application that her failure at the Tribunal’s second hearing session to present further evidence other than the name of her priest in China caused the Tribunal to take an adverse view of her case and to determine it against her without proper regard to its merits.  She asserted in her address to the Court that the Tribunal had become annoyed and upset at the second hearing session.   

2. The Tribunal’s reasons do not record anything about its second hearing session which would suggest to the relevant lay observer that it might not have been bringing an open mind to the review and there was no other evidence on the topic before the Court.  Relevantly, what the Tribunal recorded was:

   The Tribunal commented that it would be useful for the Tribunal in resolving its doubts regarding the applicant’s credibility, if it could obtain evidence regarding her circumstances from other sources, such as members of her family or anyone associated with her church in China.  The applicant stated that she could arrange witnesses but the Tribunal was asking too much from her.  She stated that the Tribunal was being particularly harsh in requiring more information from her than would normally be required from an applicant.  The Tribunal commented that it was not its intention to make her circumstances more difficult.  It commented that it had doubts as to whether she was a credible witness and it was giving her the opportunity to obtain more information which would strengthen her claims and eliminate doubts regarding her credibility.  The Tribunal commented that it was up to the applicant whether she pursued the avenues suggested by the Tribunal.  It commented that if the applicant did not wish to obtain more information, the Tribunal would accept her decision and proceed with the information it had.

   …

   The Tribunal adjourned the hearing.  It commented that it would resume at a time when the Tribunal could take evidence from witnesses.  The Tribunal asked the applicant’s migration agent to advise the Tribunal if the witnesses were not available or if the applicant did not wish to provide witnesses.  An officer of the Refugee Review Tribunal contacted the applicant’s migration agent the day before the hearing to inquire as to whether there would be witnesses when the hearing resumed.  The agent stated that the applicant’s son and husband would be available as witnesses.

   The hearing resumed on 14 February 2014.  The applicant attended alone.  She stated that her agent had asked her for more money and she could not afford to pay him.  She stated that her son refused to come to the hearing because he was afraid that he would be arrested and deported.  The Tribunal asked the applicant if she had organised any witnesses as discussed at the previous hearing.  The applicant appeared confused.  She asked the Tribunal what witnesses it was referring to.  She was asked if she had arranged for the Tribunal to take evidence from any witnesses.  The applicant stated that she had not.  The Tribunal commented that the only reason for the hearing was to obtain evidence from witnesses and, as none were provided, the hearing was over. …  (paragraphs 18, 21 and 22 of the Tribunal’s reasons)

3. Overall, the Tribunal’s reasons, as summarised above at [9], disclose a thorough and careful analysis of the evidence and arguments advanced by the applicant.  The applicant’s failure to produce more evidence at the Tribunal’s second hearing session was relevant only to the fact that she did not put before the Tribunal additional material which might have put its concerns regarding her credibility to rest.

Ground 2

1. The second ground of the application was, as explained by the applicant at the hearing of this application, that the Tribunal used its own capabilities or capacities to reach a decision on her review application.  However, as counsel for the Minister pointed out in his address, that is exactly what the Tribunal is expected to do. 

2. The applicant’s address to the Court focused principally on the merits of her visa application and it appears that the second ground of the application also sought to raise the merits of that application.  As explained to the applicant at the hearing, the Court does not have power to reconsider the merits of her visa application and so to that extent the second ground of the application and her submissions to the Court disclose no basis upon which the Tribunal’s decision might be set aside. 

3. An additional point also appeared to arise from the applicant’s address to the Court to the effect that the Tribunal brought certain preconceived views to the determination of her application and, in particular, whether her church attendance in Australia was genuine in circumstances where she could not understand the liturgy because it was expressed in English.  The applicant’s address would appear to imply some bias on the part of the Tribunal in the sense of pre-judgment.  However, the fact that a decision-maker brings a certain frame of mind to the decision-making process is not sufficient to prove bias.  It is necessary to demonstrate that the decision-maker’s mind was not open to persuasion and I am not persuaded that the applicant has done that.  As noted earlier in these reasons, the Tribunal’s reasons disclose a thorough and careful analysis.

Ground 3

1. The third ground of the application implied that the Tribunal proceeded to make a decision although it had not completed its review of the applicant’s claims.  It referred implicitly to that part of the Tribunal’s decision recorded at paragraphs 18, 21, and 22 of its reasons to which reference has already been made. 

2. That allegation is misconceived.  The Tribunal afforded the applicant a second hearing session to give her an opportunity to put before it such further information as she might have been able to muster.  In the result, all she submitted was the name of her priest in China.  In such circumstances, no error is disclosed by the Tribunal thereupon proceeding to a decision. 

Conclusion

1. 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-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  2 March 2015