SZUBT v Minister for Immigration

[2014] FCCA 2592

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUBT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2592

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

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

Applicant: SZUBT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 724 of 2014

Judgment of: Judge Driver

Hearing date: 11 November 2014

Delivered at: Sydney

Delivered on: 11 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F Taah of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 724 of 2014

SZUBT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 19 February 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of religious persecution.  The following statement of background facts relating to the applicant’s claims and the Tribunal decision on them is derived from the Minister’s outline of legal submissions.    

2. The applicant is a national of the People’s Republic of China who arrived in Australia on 13 February 2013 on a visitor visa.[1]  Shortly after, on 22 February 2013, the applicant lodged an application for a protection visa claiming to fear persecution in China due to her membership of an underground Catholic church.[2]

   [1] Relevant Documents (RD) filed 16 April 2014, pages 48; 70

   [2] RD 1-35

3. On 23 August 2013, the application for a protection visa was refused by a delegate of the Minister.[3]  On 11 September 2013, the applicant sought review with the Tribunal.[4]  She attended a Tribunal hearing on 6 February 2014.[5]  On 19 February 2014, the Tribunal affirmed the decision not to grant the applicant a protection visa.[6]

   [3] RD 48-61

   [4] RD 62-69

   [5] RD 84

   [6] RD 93-100

Applicant’s claims

1. In a statement annexed to the application for a protection visa, the applicant detailed how she was introduced to Christianity, claiming that she was introduced to Catholicism by her grandmother-in-law at a young age.  As she grew older, she refrained from attending church services and practised at home because she learned that believers in China were controlled by the Chinese Community Party.  Having found a gathering group that was not subject to government control, the applicant attended a gathering on 15 August 2009, however, the gathering was raided and she, along with others, were arrested and detained for 15 days. The applicant also claimed that she would be arrested and tortured if she returns to China due to her contact with foreigners.

Tribunal decision

1. The Tribunal considered the applicant’s evidence about her claimed Christianity to be vague, unconvincing, changing in nature, and lacking in credibility.

2. The Tribunal considered the applicant’s first reason as to why she was not baptised in China, that she did not want to annoy her mother who was Buddhist, to be unconvincing.[7]  The Tribunal did not accept her second reason, that she did not do so because she did not attend church on a regular basis, to be genuine, finding that the applicant would have mentioned it earlier to the delegate or in her written statement if it were true.[8]  The Tribunal also noted the changing nature of the applicant’s evidence with respect to her underground church attendance and doubted whether she had in fact ever attended such gatherings, given her evidence that her grandmother attended the official/registered Catholic church.[9]

   [7] RD 96 [17]

   [8] RD 96 [16]; 97 [20]

   [9] RD 97 [21]

3. The Tribunal rejected the applicant’s evidence that she was unable to provide documentary evidence on her alleged detention in 2009 because her application for a protection visa had led to the dismissal of her husband from the People’s Liberation Army, a claim that was raised for the first time at the Tribunal hearing.[10]  The Tribunal also doubted that the applicant came to Australia out of fear of persecution, given her evidence that she had not informed her husband of her fear of persecution in China, and she had also not informed her mother or husband that she had sought protection in Australia.[11]  The Tribunal further considered the considerable delay in the applicant departing China after her alleged arrest (a delay of over three years), leading the Tribunal to conclude that the applicant did not have a genuine fear of persecution prior to departing China.[12]

   [10] RD 98 [22]

   [11] RD 98 [22]

   [12] RD 98 [23]

4. The Tribunal did not accept that the applicant had attended the underground church in China, that she was arrested and detained in 2009, or that she was an underground Catholic in China.[13] Whilst the Tribunal accepted that the applicant had been attending a Catholic church since May 2013 in preparation for her baptism, it was not satisfied that the applicant did so otherwise than for the purpose of strengthening their claims to be a refugee and therefore disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Migration Act).[14]  The Tribunal was also not satisfied that the applicant would be tortured because of her contact with foreigners.[15]

   [13] RD 99 [25]

   [14] RD 99 [26]

   [15] RD 99 [27]

5. The Tribunal then considered whether the applicant satisfied the alternative criteria at s.36(2)(aa) of the Migration Act, considering in particular, whether her attendance at a Catholic church in Australia would result in a real risk of significant harm if returned to China. The Tribunal did not accept that the applicant would seek to practise her religion in underground churches upon her return to China or that the Chinese authorities would have any knowledge of her attendances here and concluded that she would not be harmed for that reason.[16]

   [16] RD 100 [29]

The present application

1. These proceedings began with a show cause application filed on 20 March 2014.  The applicant continues to rely upon that application.  Under the heading Grounds of Application, the applicant says two things.  First, she says that she is a genuine refugee.  Secondly, she says she is appealing against a decision of the Tribunal.  The second is an uncontroversial statement of fact.  That statement is repeated in the applicant’s supporting affidavit filed with the application.  The claim that the applicant is a genuine refugee does not bear on the question of whether the decision of the Tribunal is affected by some jurisdictional error. 

2. On its face, the application does not properly engage the jurisdiction of this Court.  When the matter first came before me on 22 April 2014, I gave the applicant the opportunity to file and serve an amended application.  She has not taken up that opportunity. 

3. I have before me as evidence, in addition to the applicant’s affidavit, the book of relevant documents filed on 16 April 2014. 

4. I invited the applicant to make oral submissions concerning any perceived problems with the Tribunal decision.  She chose to make no submissions. 

5. Although the applicant had received the Minister’s outline of submissions sent within the last week, she had not had the opportunity to read them.  I left the bench while the interpreter read those submissions to the applicant.  She again chose not to make any submissions.  When I gave the applicant a third invitation to speak she said that she hoped I would permit her to stay in Australia at least until Christmas.  As I explained to her, the Court’s jurisdiction is to consider whether the Tribunal fell into error, not to grant or refuse visas. 

6. The application before the Court is, in my view, incompetent because it does not allege any jurisdictional error by the Tribunal. The applicant has not otherwise alleged any error by the Tribunal. On my own reading of the available material, there is no arguable case of any jurisdictional error by the Tribunal. The Tribunal decision turned on its adverse credibility conclusions. Those conclusions were plainly open to the Tribunal on the material before it. The Tribunal met its statutory obligations under the Migration Act for the purposes of its review.

7. I conclude that no arguable case of jurisdictional error by the Tribunal is available. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

8. In consequence of the dismissal of the application, the Minister seeks an order for costs.  Scale costs were recently increased but, in my view, the appropriate course would be to apply the former amount.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  18 November 2014