SZUEF v Minister for Immigration

[2015] FCCA 254

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUEF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 254

Catchwords:
MIGRATION – Migration Review Tribunal – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958

Applicant: SZUEF

First Respondent: MINISTER FOR IMMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 935 of 2014

Judgment of: Judge Street

Hearing date: 5 February 2015

Date of Last Submission: 5 February 2015

Delivered at: Sydney

Delivered on: 5 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Ms Sananayake

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant to pay the first respondent’s costs fixed in the sum of $5100.

3. I direct pursuant to s.91X of the Migration Act 1958 that the name of the Applicant and date of birth in the transcript of the proceedings not be published.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 935 of 2014

SZUEF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958. The applicant filed an application for a constitutional writ on two grounds identified as follows:

   1. The decision of the Tribunal is affected by error of law;  and

   2. The decision of the Tribunal failed to take into account relevant considerations.

2. At the hearing of this matter today, the applicant was present with an interpreter who was sworn and no submissions were advanced expanding upon the alleged error.  The Tribunal in its decision dated 5 March 2014 identified when the applicant was born and when he arrived in Australia on a student visa.  After that student visa expired, the applicant made an application for a Protection (Class XA) visa on 7 March 2013.  In that application, the applicant claimed fears of persecution because of his religion.  The applicant also claims he was forced to join the army against his will and was persecuted whilst in the army because of his religious practice.

3. The delegate, in a decision dated 18 November 2013, carefully set out the legal framework in relation to the subclass 866 protection visa and the relevant protection obligations, and addressed, in considerable detail, the applicant’s claims for protection.  The delegate said:

   The applicant fears persecution in China because he was an independent Christian and participated in home gatherings to follow and practice his faith rather than through the officially sanctioned Christian Church.

4. The delegate found:

   I am satisfied the Refugees Convention ground of religion is the essential and significant reason for the harm feared as required by paragraph 91R(1)(a) of the Migration Act.

5. The delegate then turned to address whether the harm feared amounted to persecution.  The delegate found:

   I am satisfied the harm feared is serious harm and systematic and discriminatory conduct as required by s.91R(1)(b) and (c) of the Migration Act. Therefore I am satisfied the harm amounts to persecution.

6. The delegate went on to address is the fear well founded, and said:

   The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed.

7. The delegate identified the country information, and proceeded to identify the evidence and reasons and made a finding:

   I am of the view that the applicant’s true motivation for coming to Australia was economically motivated rather than for any genuine intention of studying English or pursuing freedom of religion.

   …

   I do not accept that the applicant had any genuine intention of coming to Australia to study English given the amount of debt he had to incur and knowing that he would need to work in Australia to make repayments.  I find it far more likely that he has come to Australia for the purpose of working and that he has fabricated his claims for protection to maximise his period of lawful stay.  I am of the opinion that whilst I cannot discount the applicant’s attendance at the Bread of Life Christian Church at Ashfield, pursuant to section 91R(3) of the act, the applicant’s overall lack of knowledge and credibility in respect of Christianity, I am not satisfied as to the veracity and substance of his claims.

   Based on the above, I do not accept the applicant is of Christian background in China, nor was he a member of an illegal independent Christian Church or gathering group and that his responses at interview of little credit in further establishing those claims. Having had the opportunity of interviewing the applicant, I am also of the opinion that his written statement of claims is fabricated for the purposes of making an application for a Protection visa.

   …

   On the basis of the above information, I am not satisfied that the applicant was of any adverse interest to the Chinese authorities for a Convention-related reason prior to or at the time of his departure from China.  I am also not satisfied that there is any evidence to indicate he would be of any interest to the authorities for a convention related reason in relation to the foreseeable future if he were to return to China.

   …

   I am not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason. I am therefore not satisfied the applicant’s fear is well-founded.

   …

   I am not satisfied that Australia has protection obligations to the applicant [SZUEF] under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol. As a result, the applicant does not meet the criteria for the grant of a protection visa under subsection 36(2)(a) of the Migration Act and subclause 866.221(2) of Schedule 2 of the Migration Regulations.

8. The delegate addressed the issue of claimed harm amounting to significant harm and whether there was substantial grounds for believing that there was a real risk of significant harm, and said :

   In the present case, I am not satisfied the applicant has a real chance of being subjected to significant harm should he be returned to China. 

   Accordingly, I am not satisfied the applicant is a person in respect of whom Australia has protection obligations.

   …

   I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country there is a real risk that the non-citizen (the applicant) will suffer significant harm in his home region.

9. The delegate said that he was not satisfied that Australia has protection obligations to the applicant under s.36(2)(aa) of the Migration Act, and as a result does not meet the criteria for the grant of a protection visa under subs.36(2)(aa) of the Migration Act and subclause 866.221(4) of schedule 2 to the Migration Regulations.

10. The delegate concluded:

    I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36 of the Migration Act and subclause 866.221 of Schedule 2 to the Migration Regulations.

11. The delegate, for those reasons, refused the grant of a protection visa. 

12. The applicant applied for a review to the Tribunal.  On the material before the Court, it is clear that the Tribunal complied with the procedural requirements and the requirements of the Act in relation to its decision making process.

13. The applicant appeared before the Tribunal on 14 February 2014 to give evidence and present arguments.  The Tribunal in its decision set out the relevant law and gave consideration to the claims in evidence, and noted that the applicant is a national of China, and assessed the claims against that country. It also accepted that the applicant does not have a right to enter or reside in any other country. The Tribunal found that the applicant:

    18. …is not a credible witness and that he is not a genuine or a practising Christian for the following reasons. 

14. The Tribunal set out its reasons in detail and I can see no error in the reason and process. The findings, in my opinion, were open on the material before the Tribunal.  The Tribunal found:

    34. …The Tribunal finds applicant remained in Australia, after he ceased studying, for economic reasons.  It is not satisfied that the applicant was or is fearful of returning to China. 

15. The Tribunal continued:

    36. …The Tribunal finds that there is no real chance that the applicant will be persecuted for reasons of his religion or any other reason if he returns to China now or in the reasonably foreseeable future.

16. The Tribunal said in para.38:

    38. Having considered the problematic nature of the applicant’s evidence regarding his Bible, his cursory knowledge of Christianity, his reliance on information from the internet when making his protection visa application, and the various inconsistencies in his evidence, the Tribunal has concluded that the applicant is not a witness of truth. It finds it cannot rely on his evidence.

17. At para.40, the Tribunal said:

    40. The Tribunal is not satisfied the applicant has suffered any harm in the Army or anywhere else in China because of Christian practice.  It has found it is not satisfied he practised Christianity in China. It does not accept he possessed a Bible in China. Nor is it satisfied he was forced to join the Army. 

    41. Having considered all of the applicant’s claims singularly and cumulatively, the Tribunal is finds that there is no real chance the applicant will be persecuted for any Convention reason if he were to return to China now or in the reasonably foreseeable future.  The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.  He does not meet the refugee criterion under s.36(2)(a).

18. The Tribunal then proceeded to consider the complementary protection provisions. The Tribunal found that there was no risk that the applicant will suffer significant harm as a result of his religious beliefs.

19. The Tribunal was satisfied there was no real risk the applicant will suffer significant harm as a consequence of his period of service in the army and concluded:

    44. …that there are no substantial grounds for believing that it is a necessary and foreseeable consequence of the applicant being removed to Australia to a receiving country (China), there is a real risk that he will suffer significant harm.  The Tribunal finds that the applicant does not meet the complementary protection criterion in s.36(2)(aa).

    45. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect to whom Australia has protection obligations under the Refugee Convention.  Therefore the applicant does not satisfy the criteria of s.36(2)(a). 

    46. Having concluded that the applicant does not meet the refugee criteria in s.36(2)(a), the Tribunal has considered the alternative criteria under s.36(2)(aa).  The Tribunal is not satisfied the applicant is a person in respect of whom Australia has any protection obligation under s.36(2)(aa). 

20. The Tribunal noted that there was no suggestion that the applicant satisfied s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  For those reasons, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (class XA) visa.

21. On the material before the Court, the Tribunal has clearly complied with its statutory requirements and the findings made were open on the material before the Tribunal.  In my opinion, there is no error of law apparent on the material before the Court and no jurisdictional error has been identified by the applicant nor is any apparent to the Court.

22. In so far as it is suggested that there were relevant considerations not taken into account that does not, of itself, articulate what would be a proper jurisdictional error. In any event, the findings made by the Tribunal were clearly open and the Tribunal has properly addressed each of the statutory requirements in coming to its decision. Both grounds identified in the application are without substance. In these circumstances, I am satisfied there is no jurisdictional error which could support the application for relief.  The application is accordingly dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 February 2015