SZUMX v Minister for Immigration

[2016] FCCA 875

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMX & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 875

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – No matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Federal Circuit Court Rules 2001, r.44.12

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Minister for Immigration & Multicultural Affairs; Ex Parte Epeabaka (2001) 206 CLR 128

First Applicant: SZUMX

Second Applicant: SZUQX

Third Applicant: SZUQY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1599 of 2014

Judgment of: Judge Cameron

Hearing date: 16 March 2016

Date of Last Submission: 16 March 2016

Delivered at: Sydney

Delivered on: 16 March 2016

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms F. Taah of Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12 of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The first applicant pay the first respondent’s costs fixed in the amount of $3,326.

3. The Administrative Review Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1599 of 2014

SZUMX

First Applicant

SZUQX

Second Applicant

SZUQY

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant is a citizen of China who first arrived in Australia on 21 October 2005. On 12 March 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in China because of her religious beliefs. The second and third applicants, who are her daughters, were included in that application as members of her family unit. On 8 October 2012 the first applicant’s application was refused by a delegate of the first respondent. The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter is before the Court for consideration of the applicants’ application that the respondents should show cause why relief should not be granted to them.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 if the applicant does not have an arguable case against the respondents.  The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should also be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicants had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Background facts

Visa history

1. The first applicant arrived in Australia as the holder of a student visa on 21 October 2005 and was engaged in studies from November 2005 to May 2007.  The first applicant’s last visa ceased on 15 March 2008 and she remained in Australia as an unlawful non-citizen until her application for a protection visa on 12 March 2012.

Protection visa application

1. In its decision the Tribunal summarised the facts alleged in support of the first applicant’s claim for a protection visa.  As summarised by the Tribunal, the first applicant relevantly made the following claims in a statement attached to her protection visa application:

   a)her parents were Christians who regularly organised family church events and hosted prayers in their home.  When she was at school she was taught anti-theism and communism and could not understand why her parents were Christians;

   b)in May 2012 the police broke up an illegal gathering and her father was hit after arguing with the police.  He was released after promising not to gather without a permit.  After that the police would attend their home without notice to check on them;

   c)in September 2003 the police attended their house and arrested her parents and five other people with whom they were praying.  She was also taken to the police station and questioned but was released with a warning because she was not a Christian, had not been praying and was at the time a high school student;

   d)her parents were detained for fifteen days and beaten.  She was moved by their actions and started studying the Bible, accepted their Christian beliefs and would sometimes attend their family church;

   e)in October 2004 she left a Bible open on her desk at school and was accused by her teacher of “spreading religious rules”.  She was kept in the school office for a few hours and was warned by the principal that her parents were being monitored and that she would be unable to take her matriculation exams if she was found again with a Bible;

   f)her parents became concerned for her future and arranged for her to travel to Australia to study;

   g)on 3 January 2012 she received a telephone call from her aunt who told her that her parents’ home had been destroyed by the police and that her father had been injured and hospitalised;

   h)she started seeking help from a Christian church as soon as she arrived in Australia; and

   i)she did not trust the Chinese government and feared she would be harmed if she returned to China.

2. In support of her application the first applicant provided a letter dated 7 July 2012 from the senior minister of the Galilee Uniting Church in Campsie stating, amongst other things, that she had been attending that church since June 2010.  The first applicant also provided a certificate of baptism indicating that she had been baptised at the Galilee Uniting Church on Christmas Day 2010.

3. In a further undated statement the first applicant made the following claims:

   a)when her father was detained and beaten in September 2003 she prayed for him and the next day he was better.  After that she became a Christian and attended worship from time to time;

   b)at school she read the Bible and sang hymns during her breaks.  She was labelled a “crazy believer in superstition”, was bullied by other students and hated by the teachers;

   c)when she left a Bible on her desk she was scolded and told by the principal that she would be expelled if she took a Bible to school again.  The police also visited her parents and told them that she would be unable to sit her matriculation exams if she took a Bible to school;

   d)she stopped studying in Australia because her parents did not have money and her school went bankrupt.  After she stopped studying a friend invited her for a visit to South Korea.  The friend suggested that she stay in South Korea but she returned to Australia because her parents had sent her here; and

   e)the police had visited her parents’ home asking about her.  During their telephone conversation in January 2012 her aunt had told her that her parents were under continued surveillance and that the government did not approve of underground churches.  She also told her that her mother was sick.

4. The first applicant attended a departmental interview on 20 July 2012 and claimed:

   a)she had never attended her parents’ church but had acted as a look out.  Her father had not been the leader of his church;

   b)she had not been baptised in China because she had not known that she was eligible;

   c)she had proselytised by advising or recommending Jesus to her friends. The police had issued her with notices concerning her proselytising and that was why they had visited her parents asking about her and why she would be arrested if she returned to China;

   d)her friend had paid for her airfare to travel to South Korea;

   e)she had not applied for a protection visa earlier because she had not known that she could.  It was only after receiving the telephone call from her aunt in January 2012 that she spoke to her minister who advised her that she could apply for a protection visa;

   f)if she returned to China she would not attend a Three Self Patriotic Movement (“TSPM”) church as they were under the control of the Communist Party.  Her parents had attended TPSM churches and had told her that people did not sing hymns in those churches, that the sermons were political and that the churches did not recognise the return of Jesus; and

   g)if she returned to China she would attend a house church and if the police raided it she would be arrested.  She wanted her children to live in Australia with “God’s love”.

Tribunal proceedings

1. At a Tribunal hearing on 26 September 2013 the first applicant made the following additional claims:

   a)her parents were the leaders of their church and she had attended a home church with them in China;

   b)her parents had told her that if she returned to China she would be arrested and fined because she had previously proselytised to other students;

   c)although she left China on a legally issued passport in her own name, she had left without the authorities’ knowledge because her year of birth was changed in her passport; and

   d)in Australia she evangelised to friends but could not do more because she had two children.

2. The minister of the Galilee Uniting Church and his wife also gave evidence to the Tribunal in support of the first applicant.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal found that certain aspects of the first applicant’s claims had changed over time while other aspects of her claims were not credible.  In that regard:

   i)in her two statements the first applicant said that she had attended church in China but at her departmental interview she said that she had not attended church and had only acted as a lookout;

   ii)the first applicant failed to mention in her statement attached to her application her later-made claim that the police had visited her parents and warned them of the consequences of her having a Bible at school;

   iii)in her statement attached to her protection visa application the first applicant only mentioned having left a Bible open on her desk but did not mention proselytising to other students, which was a significant feature of her later claims; and

   iv)at her departmental interview the first applicant stated that her father was not a leader of the house church but at the Tribunal hearing she said her parents were leaders of the house church;

   b)the Tribunal considered the first applicant’s delay in applying for a visa after her arrival in Australia significant.  It did not accept her explanations for the delay and found that it indicated that her claims for fearing harm in China were untrue.  The Tribunal also noted that the first applicant had studied for over a year after her arrival in Australia on a student visa and found that that period of study indicated that the first applicant’s real reason for travelling to Australia had been to study;

   c)the Tribunal noted that although the first applicant claimed that the authorities in China continued to ask about her whereabouts, she had originally not “claim[ed] anything of such significance” that the authorities would have had any adverse interest in her and had been able to leave China legally and on a passport issued in her own name.  It did not accept as true the first applicant’s later claim that the police had warned her parents about the consequences of her claimed proselytising.  The Tribunal also did not accept what it considered to be vague claims by the first applicant that the birth year in her passport was incorrect and noted that that claim did not explain why the authorities would have asked her parents about her.  The Tribunal found that the first applicant had only claimed that the authorities had been looking for her in order to advance her claims for a protection visa;

   d)the Tribunal noted that the first applicant had visited South Korea in 2007 for three weeks and claimed that her airfare was paid for by the friend she was visiting.  The Tribunal found that if the first applicant had feared harm in China, she could have taken the opportunity to stay in South Korea, having claimed that she was invited to do so by her friend, but instead she returned to Australia.  The Tribunal found that those actions, when considered with her failure to seek protection in Australia when she returned, indicated that she did not fear any harm in China;

   e)the Tribunal accepted that the first applicant had joined the Uniting Church in Australia, which it described as a mainstream church in Australia.  It noted that the churches which had formed the Uniting Church were among those that had formed the TSPM in China in the 1940s and found that doctrinally they were protestant churches and shared the same beliefs.  The Tribunal therefore did not accept that they were so divergent in belief such that the first applicant would not, or could not, worship in a TSPM church on her return to China.  It also found that country information indicated that the first applicant would be able to worship in family gatherings if she wanted to;

   f)the Tribunal noted that the first applicant had been baptised in December 2010 and claimed to not have known that she was eligible for baptism earlier than that time.  The Tribunal did not accept that the first applicant, who claimed to have been a Christian for many years, would not have known about baptism.  It found that her baptism in December 2010 indicated that she had been introduced to Christianity in Australia and did not accept that she or her parents had been Christians in China; and

   g)the Tribunal noted that the first applicant had not proselytised in Australia other than to some friends.   It did not accept that that demonstrated proselytising and, given her failure to proselytise in Australia where she was free to do so, it did not accept that she would do so in China.

2. The Tribunal concluded that the first applicant was not a credible witness and that she had exaggerated aspects of her history and allegations in order to advance her claims for a protection visa.  It therefore did not accept as true her claims to have experienced harm in China and did not accept that she would face harm if she returned there.  The Tribunal also found that the first applicant could bring up her daughters as Christians if she wished to and did not accept that that would cause them to be of any concern to the authorities in China for any reason.

Proceedings in this Court

1. In the application commencing these proceedings the applicants alleged:

   1.Jurisdictional error has been made.  The Delegate of the Minister and the Tribunal does not accept my claims because they rely on irrelevant materials and make wrong decisions

   The delegate and the tribunal member are not aware of the difference between house church and public church in China.  Accordingly, they do not understand that the members of house church have been mistreated in China.  That is why they do not accept my claim and hold the view that I could attend a TSPM church and will not be persecuted by the government after returning China.

   According to Christian China Aid Association data, the extent of persecution on Christian Church and Christians in China has a sharp increase in 2013.  Such phenomenon is not accidental but a part of a comprehensive crackdown of the Chinese government on dissidents, human rights activists and ordinary citizens.

   Thus, the delegate and the tribunal member do not fully consider the difficulties I will face as the member of house church on my return to China and make wrong decisions.

   2.The Tribunal considers my case with bias and do not consider my evidence properly, which leads to ignorance of part of my evidence which is in favour of my claims.

   3.The Tribunal holds the view that my fear of harm on return to China is not well-founded.  I believe this view is wrong.

   In terms of s.36 (2A) of the Migration Act, if the person will be subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment, it can be considered as significant harm. It is highly possible for a member of house church to be mistreated in China in terms of the policy of Chinese government. It is clear that the Tribunal does not fully consider such possibility and comes to a wrong conclusion that I will not suffer significant harm upon return of China.

2. At the hearing of this application the first applicant also made submissions directed to the merits of the applicants’ claim to be entitled to protection visas.  As explained earlier in these reasons and to the first applicant at the hearing of this application, the Court is not empowered to reconsider the visa application which she made for herself and her children.  Consequently, the matters raised by the first applicant at the hearing did not disclose an arguable basis upon which the Tribunal’s decision might be set aside for jurisdictional error.

Ground 1

1. In the first ground of their application the applicants alleged that the Tribunal relied on irrelevant materials “and make wrong decisions”.  The first ground in the application appeared to allege that the Tribunal’s finding that she could attend a house church was flawed because in reaching that conclusion the Tribunal relied on irrelevant materials. 

2. The material on which the Tribunal based the conclusion that the first applicant could attend a house church was expressly identified in para.40 of its reasons as information that “SARA”, which I take to be an abbreviation of the title of the State Administration for Religious Affairs in China, has acknowledged on their website since 2005 that family and friends have the right to meet at home for worship, including prayer and Bible study, without registration with the government.  That information is set out in para.35 of the Tribunal’s reasons.

1. It should be noted that in para.35 of its reasons the Tribunal also recorded information to the effect that Chinese authorities regularly harassed and detained small groups which meet for religious purposes in homes and other locations, but it is plain from the way the Tribunal expressed itself at para.40 that it preferred the information from the SARA website and based its conclusion on that information.  Which information the Tribunal relies on when making findings of fact is a matter for it and unless legal error attaches to those findings, which it has not been demonstrated in regard to this particular aspect of the matter, the Court is not at liberty to review them.

2. It should be noted that the reference in the third paragraph of the first ground of the application to information from the Christian China Aid Association was clarified by the first applicant at the hearing of this application to be a reference to information which had not been before the Tribunal.  As it was not suggested that any legal error attached to the fact that that information was not before the Tribunal, the fact that the Tribunal did not consider it was not affected by error.

3. For these reasons the first ground of the application does not disclose an arguable basis to set the Tribunal’s decision aside.

Ground 2

1. In the second ground of the application the applicants alleged that the Tribunal was biased.  The way the allegation was expressed, it appeared to be an allegation of actual bias rather than apprehended bias.  But whichever the case, it should be stated clearly that allegations of bias must not only be distinctly made, but must also be clearly proved (Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69]) and firmly established (Re Minister for Immigration & Multicultural Affairs; Ex Parte Epeabaka (2001) 206 CLR 128 at 158 [90]).

2. The first applicant did not identify in her oral submissions any material which would suggest that the Tribunal was so committed to a conclusion already formed as to be incapable of altering its mind whatever evidence or arguments might be presented.  Nor did such a frame of mind suggest itself in the detailed and thoughtful reasons given by the Tribunal in this matter.

3. Based on the material before the Court, I do not consider it arguable that the Tribunal was biased against the applicants in this case. 

Ground 3

1. In the third ground of the application the applicants pressed their disagreement with the Tribunal’s conclusion that the first applicant’s fear of suffering persecution on return to China was not well-founded.  In the second paragraph of the allegation the applicants set out material which, it would seem, they wished the Court to use to reach a conclusion that, in fact, they were entitled to protection visas.  As has been noted already, the Court is not empowered to substitute its views of the merits of a visa applicant’s application for those of the Tribunal. 

2. The third ground of the application does not raise an arguable case of jurisdictional error on the Tribunal’s part.

Conclusion

1. I am not satisfied that the applicants have raised an arguable case for the relief claimed. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 18 April 2016