SZUER v Minister for Immigration

[2014] FCCA 1271

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUER v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1271

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal refusing to grant the applicant a Protection (Class XA) visa – Application referred for immediate show cause hearing pursuant to reg.44.11(a) of the Federal Circuit Court Rules 2001 (Cth) – No reviewable error – Application dismissed pursuant to reg.44.12(1)(a).

Legislation:

Migration Act 1958 (Cth), s.91r(3)

Federal Circuit Court Rules 2001 (Cth), reg.44.12(1)(a)

Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Ramasahayam v Minister for Immigration & Anor [2014] FCCA 442

Applicant: SZUER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 987 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 17 June 2014

Delivered at: Sydney

Delivered on: 18 June 2014

REPRESENTATION

The Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the First Respondent: Ms N. Senanayake of DLA Piper

The Second Respondent: The second respondent filed a submitting notice of appearance.

ORDERS

1. The application be referred for an immediate show cause hearing pursuant to reg.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The application filed on 8 April 2014 is dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,170.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 987 of 2014

SZUER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 10 April 2014 by the applicant, SZUER, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member S. Pinto on 24 March 2014, affirming the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa. The applicant, pursuant to s.91X of the Migration Act 1958 (Cth) (the “Migration Act”) has been granted a pseudonym and cannot be identified by name.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 8 January 2013 as the holder of a Subclass 456 (Short Term Business) visa.  The applicant applied for a Protection (Class XA) visa on 6 August 2013.

3. In the applicant’s Protection visa application the applicant claimed:

   a)He became a Christian in June 2012 when he and his wife attended a house church;

   b)In September 2012 the son of the head of the town (“Mr Z”) where the applicant lived asked the applicant if he could rent some of the applicant’s land in order to build a factory, to which the applicant refused as the amount offered was too low;

   c)He attended a house church in September 2012 where four policemen raided and declared it to be an evil religious organisation.  The applicant knew it was Mr Z who had reported him to the town police as he had told him of his religious involvement;

   d)The applicant was then held by police for two days and only released when his wife contacted Mr Z and agreed to lease him the land and paid 5,000 Yuan to police;

   e)The applicant was angry with Mr Z and reported Mr Z and his father the Municipal Government;

   f)In November 2012, his mother was taking a walk and hit by a car.  After conducting a “private investigation” the applicant found the car had been driven by Mr Z, but could not take any legal action; and

   g)Because of these incidents, his persecution by Mr Z and lack of religious freedom the applicant left China.

4. On 6 August 2013 a delegate of the Minister refused to grant the applicant a Protection visa.

5. The applicant applied to the Tribunal for review of the delegate’s decision on 2 April 2013.  The applicant attended a hearing before the Tribunal on 19 March 2014 and provided:

   a)Photographs of himself being baptised and attending Campsie Congregational Church; and

   b)A statement dated 16 March 2014 from Reverend Chu of the Campsie Congregational Church.

   The applicant stated at the hearing before the Tribunal that in addition to fearing harm due to his religion and protests against Mr Z, he also feared being unable to seek employment on his return because of Mr Z.  Further, the applicant claimed his mother had since died.

6. On 24 March 2014 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a Protection visa.  In its Decision Record, the Tribunal:

   a)Was not satisfied the applicant was a truthful witness and found his evidence inconsistent, vague and unpersuasive (at [10);

   b)Found the applicant had manufactured the totality of his claims for leaving China and fearing harm in China (at [10]);

   c)Found the applicant’s oral evidence in respect of claimed events in China to be inconsistent with his written claims (at [11]);

   d)Did not accept the applicant would  be unable to recall when and for long he had been arrested and when he was released when asked about these claims at the hearing (at [12]);

   e)Did not accept the applicant had given consistent evidence in relation to the actions he claimed to have taken after his mother was hit by the car and did not accept the applicant would be unable to recall if he took any action after his mother’s hospitalisation (at [14]);

   f)Considered the applicant’s evidence in respect of his Christianity given at the hearing to be vague and unimpressive, including the applicant stating he was unable to remember when he became Christian and was baptised in China (at [15]);

   g)Did not accept the applicant’s evidence in respect of the use of the Lunar calendar and found the applicant had used this to attempt to overcome his inability to recall important dates (at [16]);

   h)Found the applicant’s evidence in relation to his purported Christianity to be indicative of the fact the applicant had learned aspects of Christianity since coming to Australia and had not been a Christian in China (at [16]);

   i)After finding the applicant’s evidence to be vague and inconsistent, did not accept any of the applicant’s claims save for his mother’s involvement in a car accident and subsequent death, however, found this had no connection with Mr Z or Mr Z’s father (at [17]);

   j)Considered the applicant’s attendance at and involvement with Campsie Christian Church, but disregarded this conduct having found only to have been done for the purposes of strengthening his claim to be a refugee, pursuant to s.91R(3) of the Migration Act (at [18]).

7. The Tribunal was ultimately not satisfied the applicant had a well founded fear of persecution if he returned to China now or in the reasonable foreseeable future for any Refugees Convention reasons (at [19]). The Tribunal also found, although s.91R(3) of the Migration Act does not apply to the Complementary Protection provisions of the Migration Act, it was not satisfied the applicant’s return to China would result in him being harmed. It ultimately found there was no real risk as a necessary and foreseeable consequence of being removed from Australia that applicant would suffer significant harm (at [20]). It found the applicant did not meet the criterion in ss.36(2)(a) or 36(2)(aa) of the Migration Act and affirmed the decision under review.

Current Proceedings

1. The applicant filed an application in this Court on 10 April 2014 seeking review of the Tribunal’s decision made on 24 March 2014.  The application pleads the following two grounds:

   1.  The Tribunal is not satisfied that there is a real chance that I will suffer harm or for any other convention reason.  The Tribunal made error in this finding.

   2.  The Tribunal is not satisfied that I am a person to who Australia has protection obligations under Refugees Convention.  The Tribunal did not refer to any independent information for the consideration of my application.  The Tribunal failed to carry out its statutory duty.

2. The proceedings were listed for a first court date directions hearing on 17 June 2014. The applicant appeared in person with the assistance of a Mandarin interpreter. I indicated to the parties present the matter was being set down for an immediate show cause hearing pursuant to reg.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).

3. It was explained to the applicant that on review of the Tribunal’s Decision Record and Court Book provided by the representatives of the first respondent, while noting the two unparticularised grounds outlined in the application, the Court was of the view it would be extremely difficult to find there had been an error of law made by the Tribunal, or that the matter could proceed to a final hearing.

4. The applicant was invited to make submissions in support of his application.  The applicant’s submissions effectively were that the Tribunal did not believe various aspects of his evidence.  It was explained to the applicant that findings of fact are matters for the Tribunal (see Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). Ultimately, for the reasons below I was not satisfied an arguable case for relief had been raised by the applicant and dismissed the application pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Consideration

1. The first ground of the application alleges the Tribunal made an error in finding it was not satisfied there was a real chance the applicant would suffer harm (if returned to China) or for any other Convention reason.  When asked to make submissions on this ground the applicant stated the Tribunal had not believed a number of claims he had made before it.  The Tribunal made its finding there was not a real chance the applicant would suffer harm if returned to China because it found that the applicant had manufactured the totality of his claims to fear harm in China (see [10] of the Decision Record).  The Tribunal then went on to consider each of the applicant’s claims and made findings in respect of them.

2. In Ramasahayam v Minister for Immigration & Anor [2014] FCCA 442 his Honour Judge Turner stated at [30]-[36]:

   30. The matters raised by the applicant in the application for judicial review and in the Cover Letter raise no errors of law. To the extent that the Cover Letter invites a review of the merits, findings of facts are not amenable to review.

   31. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full court decided at [10]:

   In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.

   32. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347:

   A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

   33 The court refers to the following decisions:

   Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:

   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. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

   The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact: see W148/00 A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and par excellence Durairajasingham (above) at [67].

   So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp 558 to 559 and W148/00A (above) at [64]–[69] per Tamberlin and R D Nicholson JJ.

   The Tribunal’s findings were open for the reasons it gives. The court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 272.

   Abebe v Commonwealth (1999) 197 CLR 510 at [137]:

   … there is no error of law … in making a wrong finding of fact …

   34. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

   The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.

   35. A wrong finding of fact is not a jurisdictional error: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at pp 35 to 36 per Brennan J.

   36. The court refers to the following passages in Quin (above) at pp 35 to 36:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

   The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modem development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

   There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”

3. I accept Judge Turner’s approach in Ramasahayam to be appropriate in respect of ground one of the application in these proceedings.  Accordingly, ground one must fail and should be dismissed.

4. In respect of ground two of the application, this ground appears to plead that the failure of the Tribunal to refer to any independent information in respect of the applicant’s application was a failure by the Tribunal to carry out its statutory duty.

5. The Tribunal found the applicant had manufactured the entirety of his claims to fear harm in China and rejected them. It did not do this as the result of consideration of independent evidence, but on its findings that the applicant’s evidence was vague, inconsistent and unpersuasive. There is no statutory obligation prescribed by the Migration Act on the Tribunal to consider independent information in respect of every application before it, and there has been no submission put forward by the applicant as to why it should have. The documentation provided by the applicant to the Tribunal at the hearing before it (noted at [5] above) was disregarded pursuant to s.91R(3) of the Migration Act, and no error in the Tribunal’s approach to this issue is apparent. Accordingly, this ground cannot be sustained and should be dismissed.

6. No grounds in the application filed on 10 April 2014 can be sustained and the application does not raise an arguable case for relief. The application should be dismissed pursuant to reg.44.12(1)(a) with costs awarded to the Minister.

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

Associate: 

Date: 18 June 2014