SZUJA v Minister for Immigration & Border Protection
[2014] FCCA 2450
•17 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUJA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2450 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 |
| Applicant: | SZUJA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1353 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 17 October 2014 |
| Date of Last Submission: | 17 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondent: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1353 of 2014
| SZUJA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 20 May 2014.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The proceeding before this Court
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
On 5 August 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the Refugee Review Tribunal (“the RRT”), unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that may flow to him if a costs order was made against him.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 3 October 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 3 October 2014.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant.
The applicant confirmed that he had not filed any documents in accordance with the directions made by me on 13 October 2014. The applicant confirmed that he relied on the grounds in his application for judicial review of the RRT’s decision, dated 24 April 2014.
The applicant’s application for judicial review, filed on 20 May 2014, stated the grounds of review as follows:
“Orders Sought by Applicant
1. I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration of my commitment to religion, ignoring my background and actual practice of Christian in China and Australia.
2. RRT did not well consider my claim and comments given to the questions asked in the hearing. The member has strong prejudice to my claim.
3. RRT failed to prudently consider my risk due to my commitment to paralysing if I return to origin.
The Grounds of the Application Are:
1. I am a Chinese student and have faithful and committed Christian faith. I have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.
2. I have been actively involved in church activities in Australia. My action and religious performance has been evidenced by church elder with reference.
3. RRT unreasonable suspect of the truthfulness of my claims because of the absence of evidence.”
Under the heading “Orders Sought by Applicant”, paragraphs 1 and 2 appear to cavil with the findings made by the RRT. The applicant claimed he feared persecution in China by reason of being a Christian and to have suffered past harm in China for that reason. The RRT comprehensively rejected the applicant’s claims and found his knowledge of Christianity to be rehearsed for the purposes of establishing a claim for protection. The RRT found this evidence to have been memorised, lacking in spontaneity and detail, and to be largely erroneous.
The solicitor for the first respondent, Ms Stone, tendered a bundle of documents identified as the “Court Book” filed on 3 July 2014, and which was marked exhibit 1R and contained a copy of the RRT’s decision record.
I accept as accurate the first respondent’s summary of the RRT’s decision, as follows:
“Background
2. The applicant is a male citizen of China.[1] The applicant arrived in Australia as the holder of a Student visa on 25 November 2010.[2] He left Australia on 24 April 2011 and returned on 16 May 2011.[3] He applied for a Protection visa on 11 December 2012.[4]
3. The applicant claimed to fear harm in China due to his Christian religion and involvement in the Local Church in China.
3.2 The applicant claimed to have been caught at a Local Church gathering at Easter 2010, and to have been detained and interrogated for 3 days.
3.2 The applicant claimed to have been arrested again in the 2010 Chinese new year for preaching, and that he was detained for 6 days, and that during the world expo in 2010 he was required to attend a brainwash programme for one week. The applicant claimed that since then, the government came to his house to check on him.
3.3 The applicant claimed that since arriving in Australia he had been unable to find a Local Church and had instead kept in contact with his Church in China via the internet. He had recently found a Local Church which he was attending.
3.4 The applicant claimed that in 2012, while he was in Australia, his father was arrested and sent to a labour camp. Later in 2012 his aunt was arrested and detained for distributing religious flyers.
[1] CB 31
[2] CB 39
[3] CB 39
[4] CB 1-31
4. The application was refused by a delegate of the first respondent in a decision dated 8 August 2013.[5] The applicant applied to the RRT for review of the delegate's decision on 4 September 2013.[6]
5. The applicant was invited to, and attended, a hearing before the RRT held on 8 April 2014.[7]
6. The RRT made its decision on 24 April 2014, affirming the decision under review.[8]
[5] CB 39-56
[6] CB 57-80
[7] CB 85-90
[8] CB 97-110
The decision of the Tribunal
7. The RRT found that the applicant's delay in applying for protection and his return to China in 2011 demonstrated that the applicant did not have a subjective fear of persecution in China.[9]
8. The RRT found that the applicant displayed limited knowledge of the bible and Christianity, and that this was not commensurate with his claims to have been exposed to Christianity from an early age and to have been practicing Christianity for an extended period of time.[10] The RRT considered the applicant's evidence about his knowledge of Christianity to be erroneous, superficial, and lacking spontaneity.[11]
9. The RRT concluded that the applicant was not a genuine practicing Christian.[12] The RRT did not accept that the applicant had been involved in any Church activities in Australia or in China which would attract the adverse interest of the Chinese authorities, and rejected the applicant's claims about past religious activities and past harm due to his religious activities.[13]
10. The RRT therefore concluded that the applicant was not at risk of serious or significant harm in China.[14] ”
[9] CB 106 [53]-[54]
[10] CB 107-108 [56]-[64]
[11] CB 108 [65]
[12] CB 108 [66]
[13] CB 108-109 [67]-[68]
[14] CB 109 [71]-[72]
The RRT’s decision record made clear that the RRT considered the applicant’s claims in some detail and explored them with him at a hearing. The RRT put to the applicant matters of concern it had about his evidence and noted his various responses.
To the extent that paragraph 2 under “Orders Sought by Applicant” is to suggest that the RRT was biased, a claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. As stated above, the applicant was given a further opportunity to file any evidence in support of his application.
Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There would not appear to be any evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
In paragraph 3 under “Orders Sought by the Applicant”, the applicant alleges that the RRT failed to consider his commitment to proselytising if he was to return to China. However, the RRT’s decision record makes clear that the RRT rejected the applicant’s claimed past religious activities, including that he was baptised; attended church in Japan; was involved in communication and propaganda for the church; evangelises; keeps online contact with the church while in Australia; and, that he was called to a brainwashing program.
The RRT found that the applicant is not a genuine practicing Christian and rejected the applicant’s evidence ever to have been in involved in any church activities in Australia or in the PRC in China.
The RRT’s credibility findings, including its adverse credibility findings, would appear to be open to it on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
It is well established that the RRT is not obliged to accept the applicant’s evidence uncritically (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The complaints made in paragraphs 1 to 3 under Orders Sought by the Applicant appear more to be disagreements with the findings and conclusions of the RRT and therefore seek merits review, which this court can not undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Under the heading “The Grounds of the Application”, paragraph 1 appears to be no more than a restatement of the applicant’s claims.
Paragraph 2 asserts that the applicant was actively involved in church activities in Australia, “as evidenced by a church elder with reference”. However, the RRT’s decision record makes clear that there was no such evidence provided from a church elder in Australia and that the applicant had no documents to support any of his claims.
In paragraph 3, under the heading “Grounds of the Application”, the applicant appears to be asserting that the RRT unreasonably found him to be untruthful because of his absence of evidence. The RRT found the applicant’s testimony to be erroneous, superficial, lacking spontaneity and to contain incorrect recitation of memorised information rather than demonstrative of a genuine belief in Christianity.
The RRT commented on the lack of evidence by the applicant. However, its rejection of the applicant’s credibility does not appear to have been based on the absence of evidence. The RRT noted that the applicant was asked if he had any letters of support or documentation to demonstrate his attendance at religious gatherings and noted the applicant’s response that he did not have any such evidence because it is easy to obtain and does not look real, and therefore he did not ask for it.
The RRT asked the applicant if anyone could vouch for him being a genuine Christian, and he indicated that his parents could send such a letter. Ultimately, the applicant provided no further evidence to the RRT in support of his claims.
The RRT noted that it had serious concerns regarding his lengthy, unlawful stay in Australia and his failure to explore avenues open to him to regularise his status in Australia to avoid the risk of being returned to China. The RRT noted the applicant came to Australia in 2010 and spent over two years in Australia before lodging his protection application. The RRT noted that he obtained his first passport in China in 2007 and studied in Japan, returned to China, came to Australia to study, renewed his Chinese passport in Australia and returned to China in 2011, despite claiming to fear persecution there as a Christian. The RRT found the applicant had no problems entering or exiting China. The RRT found the applicant’s conduct in this regard demonstrated that the applicant did not have a subjective fear of persecution in China for any reason.
A fair reading of the RRT’s decision record makes clear that the RRT gave thorough consideration to the applicant’s claims and to his oral evidence given at the hearing. Whilst I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record.
The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT, including its adverse credibility findings. The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the RRT’s decision record.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application filed on 20 May 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 October 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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