SZUAE v Minister for Immigration

[2014] FCCA 2107

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2107

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no arguable case for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 424A, 476

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

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
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
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
Wu Shan Liang v Minister of Immigration and Ethnic Affairs [1994] FCA 926; (1994) 32 ALD 735
Xie v The Immigration Department [1999] FCA 365
Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40 (2009) 238 CLR 642
SZSHJ v Minister for Immigration and Border Protection [2014] FCA 268
SZREM & Anor v Minister for Immigration & Anor [2014] FCCA 129
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

Applicant: SZUAE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 637 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

The Applicant: In Person

Appearing for the Respondents: Ms C Hillary

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 14 March 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 637 of 2014

SZUAE

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 14 March 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 February 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

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 drawn from it.

2. The applicant is a citizen of the People’s Republic of China (“China”) (CB 13). She arrived in Australia on 22 February 2008 on a student visa which ultimately ceased on 21 September 2010 (CB 14). The applicant remained unlawfully in Australia after that date. She applied for a protection visa on 5 December 2012 (CB 1 to CB 32, with attachments). The delegate refused the application for a protection visa on 9 August 2013 (CB 34 to CB 58).

The Tribunal

1. The applicant applied for review of this decision to the Tribunal on 5 September 2013 (CB 59 to CB 64).

2. Her claims to protection can be summarised as follows:

   1)She is a Christian who has been a member of the “Local Church” in China since she was 10. She came to the notice of local authorities because the church was an “underground church”, and her “uncle was a servant of the church” (CB 29 to CB 31). Further, that she had been involved with the “Church” in Australia.

   2)The applicant is an unwed mother (CB 31). She gave birth to a child in Australia in May 2012. For this reason, she claims to fear harm in China if she returned.

   3)She is concerned about the welfare of her child who would not be able to obtain registration in China given her unwed status, and as such the child would be denied education and health care (CB 31).

3. The applicant attended a hearing before the Tribunal on 12 February 2014 and gave evidence (CB 95). There are various references in the Tribunal’s decision record to what was discussed. She also provided further documents to support her claim (CB 98 to CB 99).

4. The Tribunal affirmed the delegate’s decision on 17 February 2014. The Tribunal found that the applicant was not a “witness of truth” ([12] at CB 109). It found that she had manufactured the totality of her claims in relation to religion ([12] at CB 109). The Tribunal gave reasons for this finding, including the significant delay in lodging the application for the protection visa (made four years after her arrival in Australia), her evidence as to her church involvement, and concerns regarding her evidence as to her claimed Christian knowledge ([13] at CB 109 to [24] at CB 113).

5. The Tribunal rejected the applicant’s claims to fear discrimination and harm because of her unwed status, noting its concerns about her truthfulness, and having regard to her personal circumstances and capacity to pay relevant fines on return to China ([25] at CB 113 to [28] at CB 115).

6. The Tribunal accepted that, as a single mother, she and her child may experience some societal disapproval, but found this would not rise to serious harm if she were to return to China ([29] at CB 115 to [30] at CB 116).

7. The Tribunal concluded that the applicant did not satisfy the criterion set out at s.36(2)(a) of the Act. Further, it found that that she did not meet the criterion at s.36(2)(aa) of the Act ([34] – [36] at CB 117).

Application Before the Court

1. The application to the Court sets out three grounds of review and refers to five orders that the applicant seeks which are, essentially, additional complaints regarding the Tribunal’s decision.

2. The “Orders” and grounds are in the following terms:

   “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 China and Australia.

   2, RRT did not consider our 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 our commitment to paralyzing if we return to origin.

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

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

   The Grounds of the Application are:

   1, I have been actively involved in church actives in Australia. my action and religious performance has been evidenced by church elder with reference.

   2, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

   3, The tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observe”

   [Errors in the original.]

3. The applicant’s “Orders” repeatedly use the first person plural (“our”) in referring to the complaints about the Tribunal. I note that no other person applied for the protection visa with the applicant, nor sought review by the Tribunal, nor attended at the hearing.

4. This could be perceived as an attempt to include a reference to the father of the applicant’s child. However, he is not a party to these proceedings. Nor did he make any application to the Tribunal, or participate in the conduct of the review.

5. It may be that this is some typographical error. In the alternative, it may be that this is an attempt to include the applicant’s infant child in the application to the Court. However, the child was not an applicant before the Tribunal. Nor has any formal application been made to join the child as a party to these proceedings. In any event, to the extent that the applicant referred to the child before the Tribunal, there is no evidence before the Court that the Tribunal failed to deal with the child’s relevant circumstances in the manner presented by the applicant. In this regard, the use of the plural “our” is not of consequence in revealing, or asserting, jurisdictional error on part of the Tribunal.

Before the Court

1. The applicant appeared in person at the first Court date in this matter on 9 April 2014 and was assisted by an interpreter in the Mandarin language. I noted to the applicant the lack of particularity to her grounds and what appeared to be challenges to the merits of the Tribunal’s findings of fact.

2. I gave the applicant time to seek legal advice and noted the availability of community legal centres, given her claimed financial position. I made various orders providing for the filing of any amended application and evidence. The matter was set down for mention on 9 July 2014. The applicant was put on notice of the possibility that the Minister may seek an immediate “show cause” hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth)

   
   

   (“the FCC Rules”).

3. The applicant appeared in person on 9 July 2014. She was assisted by an interpreter in the Mandarin language. Ms C Hillary appeared for the Minister.

4. Nothing further was filed by the applicant. The Minister sought an immediate show cause hearing pursuant to Part 44 of the FCC Rules.

5. In support of her application before the Court, the applicant stated that it was not easy to raise a child on her own. Further, she reiterated her statement in the application, that she believed that the Tribunal’s decision was “unfair”.

6. As I explained to the applicant at the first Court date, the Court cannot consider the merits of her claims to protection in Australia (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Her complaint that it is “not easy to raise a child on her own” does not rise above a statement of her personal circumstances. No assertion of jurisdictional error is apparent. No arguable case for the relief sought is raised. In relation to her submission that the Tribunal was “unfair”, I will deal with that in the consideration of her application below.

The Issue Before the Court

1. The issue before the Court today is whether the application raises an arguable case for the relief sought. I understood this to be that the applicant seeks orders that the Tribunal decision be quashed on the basis that it is infected with jurisdictional error and that the matter be returned to the Tribunal for reconsideration. I have treated the “Orders” sought by the applicant as further grounds, or complaints, about the Tribunal’s decision.

2. 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 where it is a hopeless case that would fail if it were to proceed to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. To the extent that Order one complains about the delegate’s decision then, in the circumstances, this Court has no power to review the delegate’s decision (s.476 of the Act). In any event, any defect in that decision would be, absent error in the Tribunal’s decision, “cured” by the Tribunal’s decision (Wu Shan Liang v Minister of Immigration and Ethnic Affairs [1994] FCA 926; (1994) 32 ALD 735 at [14] to [21] per Wilcox J (not disturbed on appeal), see also Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495 at [92] to [96] per Gyles J, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261 and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314).

2. Although Order one uses the words “fair” and “reasonable”, the applicant’s complaint really seeks to challenge the Tribunal’s findings in relation to the applicant’s claims to have been a Christian in China and to have practiced this religion in Australia.

3. As referred to above, the Tribunal found the applicant’s claims, based on her claimed religious activities in China, to have been manufactured. This was reasonably open to the Tribunal on what was before it. It gave reasons probative of this material (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405).

4. In relation to her religious conduct in Australia, the Tribunal disregarded this conduct pursuant to s.91R(3) of the Act. The Tribunal accepted that she had attended Church at the “Bread of Life Christian Church” some years after her arrival in Australia and shortly before her application for a protection visa. In all the circumstances, the Tribunal was not satisfied that this conduct was engaged in other than to strengthen her refugee claims ([23] at CB 113).

5. Importantly, the Tribunal specifically noted that s.91R(3) of the Act did not apply to the complementary protection criterion (s.36(2)(aa) of the Act). However, it gave reasons reasonably open to it, as to why this activity would not result in significant harm on the applicant’s return to China ([32] at CB 116).

6. Order two seeks to complain that the Tribunal did not accept her evidence as to her religious faith and knowledge. I understood the reference “did not consider” to mean did “not accept”. The Tribunal clearly accepted her evidence as that was presented (see [30] below). The applicant has not said which other matters the Tribunal failed to consider in this regard.

7. It is important to note that the Tribunal did accept that the applicant exhibited some knowledge of important aspects of Christianity ([19] at CB 111 to CB 112). However, it gave reasons probative of the material before it as to why this did not assist the applicant.

8. I note also, to the extent that the Tribunal referred to what had happened at the interview with the delegate ([25] at CB 113 to CB 114), the Tribunal made specific reference that it relied on a copy of the delegate’s decision which the applicant had provided to the Tribunal (see [10] at CB 108). The information relied on by the Tribunal, therefore, fell within s.424A(3)(b) of the Act, and consequently the obligation in s.424A(1) of the Act was not engaged in this regard.

9. Order three is difficult to understand without particulars or explanation. At best, it appears to be a challenge to the Tribunal’s conclusions. It may be that the applicant intended to say “proselytising” as opposed to “paralysing”. However, as the Tribunal rejected the applicant’s religious claims, it was not necessary for the Tribunal to consider whether she would proselytize in China. No arguable case arises here.

10. Order four again lacks particularity. A failure to consider a claim, or, in certain circumstances, evidence, may lead to jurisdictional error being revealed (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317). But there is nothing from the applicant, nor is it apparent on the material before the Court, as to what claims or evidence were not considered by the Tribunal. In the circumstances, this again seeks to challenge the Tribunal’s findings of fact, including findings on credibility. This does not raise an arguable case for the relief sought.

11. Order five asserts that the Tribunal’s decision was “unfair” and “unreasonable”. The Tribunal is not obliged to make a fair, or what an applicant considers to be the “right”, decision. Its obligation is to provide fairness in the procedures it employs in the conduct of the review (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1). There is nothing before the Court to show that an arguable case is raised here.

12. As to unreasonableness, the Tribunal’s conclusions were such as to say that minds may differ, however, it was reasonably open for Tribunal to make the conclusions it did based on its findings of fact (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [84] – [85] per McKerracher and Rares JJ). No arguable case for the relief sought arises.

13. Ground one asserts that the applicant participated in church activities in Australia and refers to the letter from the church Pastor which the applicant submitted to the Tribunal (see CB 98). This assertion can only be understood as a complaint that the Tribunal either should have accepted her evidence, or not have disregarded the conduct pursuant to s.91R(3) of the Act.

14. In relation to the first, the Tribunal accepted that the applicant had engaged in such conduct, and in part relied on the letter from the Pastor for this purpose ([11] at CB 109).

15. As to the second, the Tribunal’s analysis in relation to s.91R(3) of the Act and the approach adopted, as set out above, is consistent with relevant authority (see Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40, (2009) 238 CLR 642, SZSHJ v Minister for Immigration and Border Protection [2014] FCA 268 and SZREM & Anor v Minister for Immigration & Anor [2014] FCCA 129). No arguable case for the relief sought is raised in these circumstances.

16. Ground two takes issue with the Tribunal’s adverse credibility finding. As set out above at [26], this does not assist the applicant. Ground two does not raise an arguable case for the relief sought.

17. Ground three asserts that the Tribunal’s decision gives rise to an apprehension of bias. As stated above, the applicant has not filed any evidence in support of her application. There is nothing in the material before the Court to suggest that a fair minded lay observer might conclude that the Tribunal did not bring an open mind to its task in reviewing the delegate’s decision (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). As such, no arguable case for the relief that the applicant seeks is raised in this ground.

Conclusion

1. In all, the complaints and grounds raised in the application, and by the applicant before the Court, do not raise an arguable case for the relief that the applicant seeks. Nor can I otherwise see on the material before the Court any other matter that gives rise to an arguable case as to any jurisdictional error in the material before the Court. It is appropriate the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  12 September 2014

Corrections

1. In paragraph 23 the word success was corrected to succeed.