SZUHA v Minister for Immigration

Case •

[2014] FCCA 2850

•

5 December 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2850
Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case raised –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 430, 476

Federal Circuit Court Rules 2001 (Cth) rr.1.06, 44.12, 44.13
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
Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598
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; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
SZBYR v Minister for Immigration and Border Protection & Anor [2007] HCA 26
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Applicant: SZUHA
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1161 of 2014
Judgment of: Nicholls
Hearing date: 8 October 2014
Date of Last Submission: 8 October 2014
Delivered at: Sydney
Delivered on: 5 December 2014

REPRESENTATION

Applicant: In Person
Solicitor for the Respondents: Mr. M Wiese of Clayton Utz

ORDERS

  1. The application made on 30 April 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 $ 3326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1161 of 2014

SZUHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 April 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 April 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 (“the Court Book” – “CB”). The following background is relevant.

  2. The applicant is a national of the People’s Republic of China (“China”). He arrived in Australia on 7 October 2006 as the holder of a student visa (CB 4). The applicant did not complete his studies due to his family’s claimed financial difficulties (CB 1). His visa ceased to be in force on 15 March 2009. He remained in Australia without permission after this date (CB 1).

  3. He applied for a protection visa on 18 July 2012 (CB 1 to CB 30). He was assisted by a registered migration agent (CB 28). His claims to protection were set out a written statement (CB 34 to CB 35).

  4. The applicant claimed to fear harm on return to China because of his Christian beliefs. He claimed his parents were members of a “family church” which was not “permitted” by the Chinese authorities (CB 34.2). He claimed to have attended the “Christian Assembly Church of Sydney” in Lidcombe (CB 34.8). The applicant also claimed that his parents had been detained because of their religious practice and his father had been “bashed” by police and hospitalised (CB 35.3).

  5. The delegate refused the grant of the visa on 2 November 2012 (CB 37 to CB 55). In essence, the delegate accepted that the applicant was of Christian background, but that his claimed level of Christian activities in Australia was inconsistent with his claimed level of Christian commitment and background (CB 51).

The Tribunal

  1. The applicant applied for review to the Tribunal on 2 December 2012 (CB 58 to CB 64). He continued to be assisted by a registered migration agent (CB 56 and CB 60). He provided a Statutory Declaration to the Tribunal which took issue with the delegate’s findings (CB 65 to CB 66).

  2. The applicant appeared at a hearing before the Tribunal on 10 October 2013. His representative was present (CB 105 and [4] of CB 116).

  3. The Tribunal found that the applicant was not a credible witness. It rejected the factual basis for his claims ([39] at CB 121). The Tribunal’s reasons arose from the applicant’s lack of relevant knowledge about the church to which he said he had belonged for nearly 20 years, his lack of relevant knowledge beyond some basic answers, that he had been “coached” in the answers he provided, that he provided no evidence from his church to support his claim to belong to it, and the delay in applying for protection of well over 3 years after the cessation of his student visa. The Tribunal found the claims were fabricated ([38] at CB 120 to CB 121).

Application to the Court

  1. The grounds of the application to the Court are in the following terms:

    “1. The decision of the Tribunal:

    a) is affected by the procedural unfairness.

    b) failed to take into account relevant considerations.

    c) gives rise to an apprehension of bias in the mind of a reasonable observer”

  2. At the first Court date in this matter on 25 June 2014 the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. At best, the grounds of the application could only be described as formulaic. Their lack of particularity made it difficult to discern even an arguable case for the relief the applicant sought.

  3. Nevertheless I gave the applicant the opportunity to enhance and explain his grounds. I made orders granting leave for the filing of an amended application and any evidence by way of affidavit. I urged the applicant to consider seeking legal advice. The matter was set down for mention at a callover on 8 October 2014. The applicant was on notice that if nothing of substance was filed then the Minister may press for an immediate show cause hearing at the callover.

Before the Court

  1. On 8 October 2014, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Nothing further was filed by the applicant. The Minister sought an immediate show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”). It was appropriate, in the circumstances, to proceed in this fashion to determine whether an arguable case arose, such that the matter should otherwise proceed to a final hearing.

  2. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.

  3. If the Court cannot be satisfied that an arguable case is raised against the respondent, the application will be dismissed. As I said in SZTBV v Minister for Immigration & Anor [2014] FCCA 2106, I note that the Courts 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; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

  4. Before the Court, the applicant complained that that Tribunal did not believe that he was a member of the “Shouters” church. He explained that the Tribunal did not believe he was a Shouter. The difficulty for the applicant is that there is nothing in the Tribunal’s decision record to support his claim that the Tribunal found he was not a Shouter. It is indeed the case that on the evidence before the Court the applicant made no claim to be a member of the Shouters in his protection visa application or before the Tribunal.

  5. In his original statement accompanying his protection visa application, the applicant made reference only to being a Christian, a member of the “family church in China”, and “The Christian Assembly Church of Sydney” (CB 34 to CB 35). Before the delegate he made reference to church gatherings at home, being a Christian, and attending the “Lidcombe church” (CB 45 to CB 46). The delegate understood the “Christian Assembly Church of Sydney” as being a “family and community orientated church” (CB 51.8).

  6. In submissions to the Tribunal, the applicant’s migration agent made reference only to the applicant being a “Christian” (CB 56). In his Statutory Declaration given to the Tribunal, the applicant made reference to being “a faithful Jesus follower” and his “Christian religion” (CB 65 to CB 66).

  7. The applicant has not provided any evidence to the Court concerning what was said at the hearing with the Tribunal. The only relevant evidence is that contained in the Tribunal’s decision record. The Tribunal reports that the applicant claimed to “just believe in God” and to “attend the Christian Assembly Church at Auburn” ([15] at CB 117). He said the church in China had no name and it was “just called family church” ([15] at CB 117). He later said his church was called “Christian Assembly” ([17] at CB 118).

  8. The Tribunal reports the following evidence from the hearing ([31] at CB 119):

    “Mr Chan asked the applicant if he knew of the Shouter Church and whether his church had any connection. He claimed they had no connection and when asked if his church was called ‘Little Flock’ or Juhuichu he said ‘yes I belong to this’.”

    [Mr Chan was the applicant’s migration agent who attended the Tribunal hearing with him (CB 64 and CB 105).]

  9. The applicant’s complaint in this regard fails to raise any arguable case for the relief sought, given that there is no factual basis in the evidence before the Court to support the assertion that he was a member of the “Shouters”. In fact, the applicant’s own evidence to the Tribunal was that he was not a “Shouter”. The Tribunal did not proceed on the basis that he was or claimed to be a “Shouter”.

  10. On the evidence before the Court, the Tribunal dealt with the applicant’s claim to be a Christian. Its analysis included each of the iterations and the various descriptions he gave of his claimed religious beliefs and practice. There is no apparent failure to deal with the applicant’s claims in this regard.

  11. The Tribunal found that the applicant’s claim to be Christian in China and Australia to be a fabrication. The Tribunal found he was not a credible witness. The Tribunal’s conclusion and the findings leading to it were all reasonably open to the Tribunal on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal gave cogent reasons. There is no arguable case for the relief the applicant seeks in this regard.

The Grounds of the Application

  1. Before the Court, the applicant was unable to provide anything of substance in support of any of the three elements of the sole ground of the application to the Court.

  2. Particular (a) to ground one asserts that the Tribunal’s decision is affected by procedural unfairness. There are no particulars. In these circumstances such a complaint directs attention to Division 4 of Part 7 of the Act. However, there is nothing in the material before the Court to say an arguable case is raised in this regard.

  3. The applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act. On the evidence, the hearing was a meaningful opportunity for him to give his evidence. The issue on review was the Tribunal’s disbelief of the entirety of the applicant’s claims to Christian belief and subsequent fear of harm. That issue and the matters underpinning it, were discussed at the hearing before the Tribunal. The applicant has not provided any evidence, despite the opportunity to do so, to contradict the Tribunal’s account of what occurred at the hearing.

  4. In relation to s.424A(1) of the Act, there is evidence to say that there was information before the Tribunal which it considered would be the reason, or a part of the reason, for affirming the delegate’s decision. This was the applicant’s written claims in the application for the visa, what he told the delegate at the interview, what he told the Tribunal at the hearing, and country information.

  5. In the circumstances, all of the above at [27] are exempted from the obligation in s.424A(1) of the Act by the operation of various parts of s.424A(3) of the Act. What was put in writing to the delegate comes within s.424A(3)(ba) of the Act. What he told the delegate at the interview was considered by the Tribunal as it appeared in the delegate’s decision record which the applicant gave to the Tribunal for the purposes of review (s.424A(3)(b) of the Act and Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241). What he told the Tribunal at the hearing falls within s.424A(3)(b) of the Act. Country information falls within the exception at s.424A(3)(a) of the Act.

  6. The Tribunal’s disbelief of the applicant’s claims is not “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Border Protection & Anor [2007] HCA 26). No arguable case is raised by particular (a) to ground one.

  7. Particular (b) to ground one asserts that the Tribunal failed to take into account relevant considerations. This remained unexplained by the applicant before the Court.

  8. Before the Court the Minister, fairly, referred to the document reproduced at CB 65 to CB 66. This was a Statutory Declaration made by the applicant and provided to the Tribunal with the application for review made on 2 December 2012 (CB 58).

  9. The Minister submitted that there is no express reference to the Statutory Declaration in the Tribunal’s decision record. I agree with the Minister that the absence of any such reference does not immediately lead to any revelation of jurisdictional error or any arguable case for the relief sought.

  10. It is of preliminary note that the Tribunal is not obliged to refer in its decision record to every piece of evidence before it (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594). Its relevant obligation, arising from s.430 of the Act, is to refer to the evidence or material on which its findings of fact are based and which inform the reasons for its decisions.

  11. In the current case, even on a generous reading of the applicant’s Statutory Declaration, there is no claim of substance, or significance, in the document to support the applicant’s claim to fear harm on return to China, other than claims made elsewhere by the applicant


    (see [4] ‑ [5] and [15] – [20] above).

  12. In essence the Statutory Declaration repeats his claims to be a Christian and, that he would suffer harm for this reason, if he were to return to China. The remainder of the Statutory Declaration is the applicant’s argument as to why the delegate was wrong to find adversely to him.

  13. On the question relevant to the applicant's case in the current proceedings, as to the consequence of the Tribunal not mentioning a particular piece of evidence in its decision record, the Full Court in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] stated:

    “The fact that a matter is not referred to in the Tribunal's reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal's reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].” "

    [Emphasis added.]

  14. There is no substantive claim to fear harm expressed in the Statutory Declaration that is not otherwise expressed by the applicant. The Tribunal dealt with all of the applicant’s claims whether expressly made or clearly arising on the material presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244). In the current case it was not necessary for the Tribunal to make specific reference to the Statutory Declaration because the matters raised in it were matters raised elsewhere and variously by the applicant. Nor was anything of substance added to the applicant’s claims by virtue of this document which repeated some of the claims made by the applicant, being presented as a Statutory Declaration. In all, no arguable case is raised by particular (b) to ground one.

  15. Particular (c) to ground one asserts an apprehension of bias with reference to the Tribunal. If the applicant was seeking to establish an apprehension of bias on the part of the Tribunal, then with reference to the relevant test for the apprehension of bias, on the material before the Court, I cannot see that the well-informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the proceedings (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  16. Beyond mere assertion, the applicant has not explained why the test can be made out. In his case what is left is that this allegation purports to be an explanation for the Tribunal’s disbelief of his claims. The Tribunal does not have to uncritically accept what an applicant puts to it (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). The apprehension of bias is not revealed simply because the Tribunal did not do so. No arguable case arises from particular (c) to ground one.

Conclusion

  1. In all, the grounds of the application do not raise an arguable case for the relief sought. It is the case that the rules of this Court provide that at a hearing of an application to show cause (with reference to r.44.12 of the FCC Rules), the applicant is confined to the grounds mentioned in the application to the Court (r.44.13(1) of the FCC Rules). I did consider whether it was appropriate to dispense with this rule pursuant to r.1.06 of the FCC Rules. However, I could not see that the material before the Court gave rise to any other issue that could be said to raise an arguable case for the relief sought.

  2. In the circumstances it is appropriate that 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: 5 December 2014

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