SZUDA v Minister for Immigration

[2014] FCCA 2553

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2553

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(3)

Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1995) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZUDA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 824 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 5 November 2014

Delivered at: Sydney

Delivered on: 14 November 2014

REPRESENTATION

The Applicant: The Applicant appeared in person.

Solicitor for the First Respondent: Ms M Stone of DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application filed on 27 March 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 824 of 2014

SZUDA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in this Court on 27 March 2014 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1313504, a decision of Tribunal Member K. Raif dated 25 February 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the Minister filed on 13 May 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.  

3. The applicant was granted leave on 27 May 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely, however, elected not to do so.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.

2. The applicant is a male citizen of the People's Republic of China (“China”). He arrived in Australia on 29 February 2012, using a passport that had been issued in the name of [ZP], as the holder of a Subclass 571 Student visa.  This passport was later found to have been legitimately manufactured, but fraudulently altered.

3. On 15 January 2013, the applicant applied for a Protection visa (CB 1-37). The applicant's claims were set out in a statement which was attached to his application (CB 35-37).  The applicant:

   a)Claimed that his mother is an active member of the unregistered church and was frequently involved in church activities. The applicant claimed that his mother taught him and his sister to become Christians.  Gradually the applicant became a believer and started participating in church activities. The applicant claimed that he was baptised in 2009;

   b)Claimed that his mother came to the attention of the authorities in 2005 and in 2011, at which times she was detained and fined. The applicant was arrested, detained and fined on one occasion in 2011.  The applicant's family was monitored and harassed and his mother was forced to report to the authorities regularly; and

   c)Claimed that he left China in order to seek safety, and that he had been involved in Christian activities since his arrival in Australia.  The applicant claimed to fear returning to China as he would join the home church and gatherings, and be imprisoned as a result.

4. The Protection visa application was refused by a delegate of the Minister in a decision dated 15 August 2013 (CB 58-71).  The applicant applied to the Tribunal for review of the delegate's decision on 12 September 2013 (CB 72-76). 

5. The applicant was invited to, and attended, a hearing before the Tribunal held on 21 February 2014 (CB 81-88).

6. The Tribunal made its decision on 25 February 2014, affirming the decision of the delegate not to grant the applicant a Protection visa (CB 93-100).

Tribunal’s Decision

1. The Tribunal found that the applicant's oral evidence to the Tribunal shifted and that he was evasive in many of his responses.  The Tribunal considered that the applicant's answers were “extremely vague” and that he provided minimal information in response to questions posed to him (CB 95 at [11]).  The Tribunal also noted inconsistencies between the applicant's oral evidence and his written claims (CB 95 at [11]).  The Tribunal set out in detail its specific concerns with the applicant’s claims and evidence (CB 95-97).

2. The Tribunal also expressed concern about the delay in the applicant lodging his application for a Protection visa, being a delay of one year from his arrival in Australia.  The Tribunal considered the applicant's explanation that he was unaware of Protection visas, but found that if the applicant had come to Australia to avoid persecution and was genuinely fearful for his safety he would have taken steps to inquire about the possibility of seeking protection.  The Tribunal found that the fact that the applicant did not do so suggested that he had not been truthful in his evidence (CB 98 at [12]).

3. The Tribunal concluded that the applicant was not a witness of truth, and that he had been entirely untruthful in his claims. The Tribunal rejected the entirety of the applicant's claims regarding his past experiences in China, and found that these had been fabricated (CB 98 at [12]). The Tribunal accepted that the applicant had attended Church in Australia on limited occasions, and was of the view that the limited knowledge displayed by the applicant of Christian beliefs was acquired through such attendance. The Tribunal was not satisfied that the applicant engaged in that activity otherwise than for the purposes of strengthening his claim to be a refugee, and disregarded that conduct pursuant to s.91R(3) of the Migration Act (CB 98-99 at [13]).

4. The Tribunal found that the applicant had no interest in or commitment to the Church or to Christianity and that he would not engage in any religious activities if he returned to China (CB 99 at [14]). In considering complementary protection the Tribunal correctly acknowledged that s.91R(3) of the Migration Act did not apply to that criterion, but found that there was nothing to indicate that the Chinese authorities were aware of the applicant's conduct in Australia or that they would be concerned by the applicant's Church attendance in Australia (CB 99 at [17]).

5. The Tribunal concluded that the applicant did not satisfy the criteria for grant of the visa in s.36(2)(a) or in s.36(2)(aa) of the Migration Act (CB 99 at [15] and CB 100 at [19], respectively).

Current Proceedings

1. The application pleads the following four grounds:

   1.  During the hearing, I evidenced that my mother is an active member of the unregistered church and was frequently involved in religious activities of the church.  My mother taught my sister and me to become Christians and gradually I became a believer and also participated in church activities, including gatherings, bible study and spreading Christianity.  The [Tribunal] had unfairly concluded that I was not a truthful witness.  Nevertheless, the Tribunal did not accept that I came to the adverse attention of the authorities in China because of my religion activities, including underground church meetings.

   2.  The Tribunal ignored the fact that I suffered serious [threats] in China.  I provided evidence that I was arrested and detained on one occasion and fined.  My family was monitored and harassed and my mother was required to report regularly.  The Tribunal did not accept that I am fearful to return to China as I will join the home church and gatherings and will be imprisoned.  Thus, the Tribunal did not fairly value my evidence.

   3.  The Tribunal unreasonably rejected my explanation to why I did not apply [for] the protection visa immediately after my arriving to Australia.  The truth ignored by the Tribunal was that I did not know about protection visa until my neighbour told me about it.  I came to Australia to avoid persecution and I was genuinely fearful for my safety and well-being, but it is not necessary to conclude that I would have taken at least some steps to inquire about the possibility of seeking protection in Australia, since I did not know about it.

   4.  According to [s.]36(2)(aa) of the [Migration] Act, the Tribunal should consider the alternative criterion other than the refugee criterion in s.36(2)(a).  As [an] underground Christian, I will face significant harm if returning to China.  The Tribunal should have examined my risk in the hearing.

2. Orders were made by the Court granting leave to the applicant to file and serve affidavit evidence, an amended application and written submissions, however, the applicant indicated at the hearing he had not undertaken any of these actions. 

Applicant’s Submissions

1. The applicant was then asked if he had any oral submissions to make in support of his application.  He indicated he did not have any submissions to make.

Minister’s Submissions

1. Ms Stone, appearing for the Minister, indicated, on the basis that the applicant did not wish to make oral submissions, she was content to rely on her written submissions.  These submissions have been reproduced immediately following.

Ground one

1. The first ground of review repeats the applicant's claims for protection and takes issue with the Tribunal’s finding that the applicant was not a truthful witness.

2. The Tribunal’s findings on credibility were open to it to make as decision-maker par excellence.  This ground goes no higher than to seek impermissible merits review.

Ground two

1. The second ground of review again takes issue with the merits of the Tribunal’s findings.

2. To the extent that it is alleged that the Tribunal ignored the applicant's claim to have suffered serious threats in China, the applicant did not specifically make this claim discretely in his written statement, nor is it noted in the delegate's decision. The only claims which could potentially include threats are the applicant's claims of being discriminated at school and his claimed arrest and detention, which were addressed by the Tribunal at [11g] (CB 97) and rejected at [12] (CB 98).  The Minister contends that this ground goes no higher than to take issue with the merits of the Tribunal’s findings.

Ground three

1. The third ground of review alleges that the Tribunal was unreasonable to reject the applicant's explanation as to why he did not immediately apply for a protection visa upon arriving in Australia.

2. The Tribunal considered the applicant's explanation for the delay in applying for protection, and did not accept it.  The first respondent submits that this finding was reasonably open to the Tribunal for the reasons which it gave.  In particular, the Tribunal noted that the applicant was able to find accommodation and a job in Australia, but took no steps to inquire about seeking protection in Australia. The Tribunal ultimately found that if the applicant was genuinely fearful of persecution in China then he would have taken steps to make inquiries about seeking protection in Australia.

3. The Minister contends that this ground goes no higher than to take issue with the merits of the Tribunal’s findings in this regard.

Ground four

1. The fourth ground of review alleges that the Tribunal did not examine the risk of significant harm the applicant will face if he returns to China, under the complementary protection criterion found in s.36(2)(aa) of the Migration Act.

2. Contrary to the allegation made by this ground, the Tribunal addressed the applicant's claims against the complementary protection criterion at [16]-[19] of the Decision Record. The Tribunal found that the applicant did not satisfy that criterion, due to its rejection of the entirety of the applicant's claims.  This ground accordingly cannot be made out.

Conclusion

1. There being no jurisdictional error established on the part of the Tribunal, the decision of the Tribunal is a privative clause decision within the meaning of s.474(2) of the Migration Act and is not amenable to judicial review by this Court.

2. The application should be dismissed and the applicant ordered to pay the costs of the first respondent in a fixed amount.

Applicant’s Submissions in Reply

1. The applicant stated at the hearing that the Minister’s written submissions had been translated to him prior to the commencement of it.  When asked if he had any oral submissions to make in response, he indicated he did not.

Consideration

Ground 1

1. I first address ground one of the application.  The applicant takes issue with the Tribunal’s credibility findings in respect of him and his evidence and restates a number of his substantive claims before the Tribunal. 

2. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 his Honour McHugh J stated at [67]:

   … [A] finding on credibility … is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

3. I am satisfied that the Tribunal’s findings in respect of the applicant’s credibility were open to it on the material before it.  Consequently, this ground cannot be sustained.

Ground 2

1. This ground has, in my view, been addressed in the Minister’s written submissions noted at [21]-[22] above. However, I wish to make a number of further comments in respect of this ground.

2. To the extent that the applicant claims the Tribunal failed to address an integer of his claim, being that the Tribunal did not address his claims to have suffered serious threats in China, this cannot be sustained.  On a fair reading of the Court Book and, particularly the applicant’s Statement (CB 35-37) and Decision Record, the only claims of threats to him put forward by the applicant are recorded at [11g] (CB 97) of the Decision Record and expressly addressed by the Tribunal at [12] (CB 98).

3. Further, to the extent that the applicant complains about the weight given to his evidence, this seeks to engage the Court in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1995) 185 CLR 259 at 281-281 per Brennan CJ, Toohey, McHugh and Gummow JJ).

4. Accordingly, this ground cannot be sustained.

Ground 3

1. Ground three of the application states the Tribunal acted unreasonably when rejecting the applicant’s explanation for why he did not apply for a Protection visa immediately after arriving in Australia.

2. In Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Crennan and Bell JJ summarised the principles to be applied as follows at [123] where their Honours stated:

   123. Judicial review has commonly been relied on to set aside a discretionary decision which “is so unreasonable that no reasonable authority could ever have come to it“ or decisions “which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful“. As remarked by Gaudron J in Abebe v Commonwealth:

   [I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.

   This court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.

   Their Honours then continued in respect of decisions of the Tribunal at [130]-[131] where they stated:

   130. In the context of the Tribunal’s decision here, “illogicality“ or “irrationality“ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust“ or “arbitrary“ or “capricious“ or “unreasonable“ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

3. More recently, in Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 his Honour French CJ similarly observed at [30]:

   30. The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker …

4. The Tribunal’s findings in respect of the applicant’s delay in seeking a Protection visa are found at [12] of the Decision Record (CB 98).  On a fair reading thereof, noting the applicant failed to make any further submissions in support of this ground, the Tribunal’s finding was reasonably open to it on the material before it and no unreasonableness is apparent, noting the authorities above.  This ground does no more than seek impermissible merits review and cannot be sustained.

Ground four

1. This ground alleges the Tribunal failed to consider the applicant’s Protection claims as against the complementary protection criterion found in s.36(2)(aa) of the Migration Act.

1. This allegation cannot be sustained.  The Tribunal clearly considered the applicant’s claims against this criterion at [16]-[19] of the Decision Record under the heading Does Australia have protection obligations to the applicant under the complementary protection criterion (CB  99-100).  The Tribunal ultimately found, after discussing the applicant’s claims and rejecting the entirety of them, that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia … there is a real risk that he will suffer significant harm. 

2. Accordingly, this ground cannot be sustained.

Conclusion

1. As addressed above, none of the pleaded grounds in the application can be sustained.  On a fair reading of the Court Book and Decision Record no error on the part of the Tribunal is apparent.  Accordingly, the application should be dismissed with costs awarded to the Minister.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 14 November 2014