SZUNG v Minister for Immigration

[2015] FCCA 726

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 726

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 425(1), 476

Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632

Applicant: SZUNG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1632 of 2014

Judgment of: Judge Street

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Sydney

Delivered on: 24 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. The Application be dismissed.

2. Applicant to pay First Respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1632 of 2014

SZUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision by the Tribunal on 19 May 2014, in which the Tribunal affirmed a decision not to grant the applicant a Protection (Class XA) visa.  The grounds of the application are as follows:

   1, I am a Chinese student and have faithful and committed Christian faith. I have personally involved in church practice with eastern lightning, the house church surviving undergrounded in China due to the suppression and strike by the government.

   2, I have been actively involved in church practice in Australia over the past years. My action and religious performance has been evidence by church priest with reference.

   3, My family has strong church background with eastern lightning in China and experienced hardship and persecution. They have been intimidated and lost religious freedom in origin.

   4, I have been significantly affected by my family’s religion background and committed in pursuing my faith in Eastern Lightning with commitment on missionary.

   5, I have fear of return to origin due to my commitment of faith with eastern lightning which is outlawed, bias treated and persecuted in China.

2. The application identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The grounds clearly fail to identify any arguable jurisdictional error and impermissibly seek to challenge findings of fact that were clearly open to the Tribunal.

4. This is a case where the applicant had been in Australia for almost 12 years before applying for a protection visa and it is one where the assessment of credit of the applicant was a matter for the Tribunal to determine.  The adverse findings of credit by the Tribunal in relation to the applicant were clearly open on the material.  I am satisfied that the Tribunal properly appreciated the seriousness of the adverse findings it was making and that there was a proper basis for those adverse findings, which were to the effect that the applicant was fabricating his claims for protection.

5. The affidavit, in support of the application today, sought to advance that the Tribunal displayed an attitude which suggested it had pre-determined the proceedings and did not take into account the applicant’s materials and that the Tribunal’s attitude was not very serious.  Having considered that alleged conduct and the Tribunal’s decision, I am satisfied that no reasonable person might believe that the Tribunal failed to bring an impartial and independent mind to the conduct of the review.  There is no substance in the suggestion of a pre-determination and it is clear that the Tribunal afforded the applicant a genuine hearing and carefully addressed the applicant’s claims.

6. It was clearly a matter of legitimate and obvious concern for the Tribunal in assessing whether the applicant’s claims were genuine to take into account the applicant’s history in arriving in Australia and the very substantial delay in applying for any protection visa. The applicant arrived in Australia in November 2001 as the holder of a Subclass 560 (Student) visa. The applicant departed Australia for one week in June 2003 and a week in October 2003 and a week in March and April 2004.

7. The applicant’s last visa was granted on 21 February 2007 and ceased on 21 March 2007 and he became an unlawful non-citizen until he was granted a bridging visa on the basis of his application for a protection visa on 28 May 2013. That five year delay since the expiry of his last visa clearly called for satisfactory explanation from the applicant and equally, his departure from Australia prior to that date required satisfactory explanation if, in fact, he held a genuine fear for convention reasons.

8. The Tribunal carefully identified the relevant law in relation to its inquisitorial review and relevantly, the Tribunal said:

   3. … The issues in this review are whether the applicant has a well founded fear of persecution in Chian for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal must consider, therefore, whether the applicant has a well founded fear of persecution because he or his family are members of the Eastern Lightning church. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution for this reason, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia that there is a real risk that he will suffer significant harm for this or any reason.

9. The Tribunal turned to carefully assess the claims and evidence of the applicant and in particular, his and his family’s association with the Eastern Lightning Church.  The Tribunal carefully identified the applicant’s claims in relation to his grandfather and the alleged evidence of the applicant as to attending many churches.

10. Importantly, the Tribunal found that in 2004 the applicant returned to China to visit his family and he alleged that he attended the Eastern Lightning House Church at that time.  The applicant gave evidence as to the family church being stormed by the Government and that his grandfather and uncle were arrested and that his mother was suspended from teaching. The applicant asserted that in order to escape from being arrested by the Government that he had to flee his hometown and still lives abroad, not daring to return to China.

11. The delay in the application for a protection visa clearly does not sit well, as a matter of credibility, with those assertions.  These were matters for the Tribunal to determine.  They were open to the Tribunal to come to an adverse decision in relation to the applicant’s credit in that regard.  Relevantly, the Tribunal found as follows:

    11.  As stated above, the Tribunal must consider whether the applicant has a well founded fear of persecution in Chian for one or more of the five Convention reasons. In this matter, the main Convention reason raised by the applicant relates to his religion. Having considered all the evidence, the Tribunal is not satisfied that the applicant is a truthful witness or that he or his family are members of the Eastern Lightning Christian or that he or his family has ever been harmed for this reason. The Tribunal considers that the applicant has fabricated the entirety of his claims to fear harm in China after arriving in Australia some 13 years ago, ceasing his studies a few years later and eventually remaining in Australia unlawfully for some 5 years until he lodged this application. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows. 

    12. The Tribunal firstly considers that the significant delay in the lodgement of the application is not consistent with the applicant’s claim to have belonged to the Eastern Lightning religion, which he claims is persecuted in China, since he was young. The applicant told the delegate and the Tribunal that he ceased his studies in Australia in 205 and since that time he has been doing various casual jobs. When asked by the delegate why he decided to lodge an application for protection after 12 years, 5 of which were whilst he was unlawful, the applicant stated that he did not know he could apply for protection. The applicant claims that from the end of 2012, he applicant’s family situation in Chian worsened and he began to think about applying for protection. However, he had been told that people apply on the grounds of religion but most are refused. At the hearing, when asked about the treatment of adherents of the Eastern Lightning religion, the applicant stated that the Chinese government defines it as a “cult” and does not allow it to have gatherings and persecute its members. The applicant referred to the arrest of his uncle, grandfather and father on various occasions since 2000. When the Tribunal commented that he has not been studying for several years and has been in Australia unlawfully for some years and queried why, in such circumstances, he would not have applied for protection if his family was being harmed, the applicant stated that he had “mixed feelings” about applying for protection. The applicant claimed that he had never contacted an agent or anyone about applying for protection because he thought that only persons who were Falun Gong practitioners could get protection and it was only when “things got worse” that he decided he had to do something about it. 

    13. …However, the Tribunal does not accept that the applicant’s delay in the lodgement of the application for several years following his arrival in Australia, in circumstances where he had cease studying and subsequently became an unlawful non citizen for some 5 years, is consistent with his claims to have been a member of a group which has suffered this type of serious harm in China and is viewed in an extremely adverse manner by the Chinese authorities. The Tribunal considers that had the applicant been associated with this group and his family harassed and mistreated as a result that he would have sought advice as to whether he was eligible to lodge an application for protection at a much earlier time rather than waiting until 2013, some 12 years after his arrival in Australia to do so. The Tribunal does not accept that the applicant only found out about Protection visas in 2013 or that he "got enlightenment" and this allowed him to overcome his ambivalence in relation to lodging an application for protection visa. The Tribunal further considers that the fact that the authorities have purportedly known of his involvement in this religion since 2008 is inconsistent with a delay o f some 5 years after material was purportedly confiscated from his grandfather's home in 2008 showing that he had attended church services in 2004 when he returned to China. 

    14. The Tribunal considers that the evidence in relation to the significant delay in the lodgement of the application raises considerable doubts in relation for the applicant's claims to be a member of the Eastern Lightning religion and his family persecuted due to this involvement over a number of years. The Tribunal further considers that the applicant's own evidence indicates that he returned to China on two occasions following his initial arrival in Australia. The Tribunal accepts that the applicant may have wished to visit his family in China. However, the Tribunal does not accept that his willingness to return to China on two occasions is consistent with his claims that his family has been persecuted by the Chinese government for several years due to their involvement in a religious group which has been labelled a "cult" and a "social cancer and a plague on humankind".

    …

    16. The Tribunal does not accept the applicant's account of his mother being suspended from her teaching yet still allowed to remain at the school whilst her "status" remained the same. Nor does the Tribunal accept that she would then be permitted to continue teaching school students in _circumstances where she was known to have been associated with a religion which is regarded as a cult in China. The Tribunal considers that the applicant's evidence in relation to this issue is indicative of the fact that it has been manufactured.

    …

    18. The Tribunal accepts that there is no Ea5tern Lightning church in Sydney in which the applicant could be involved. However., the Tribunal does not accept that the applicant has satisfactorily explained why he would choose to be involved with an Anglican church, which has entirely different beliefs from the Eastern Lightning religion which believes in concepts such as Doomsday, the Female Jesus and that Christians of other denominations will be "shut out of heaven.' … However, the Tribunal does not accept the applicant's explanation for choosing to become involved with an Anglican church in Australia and that he his involvement in the Anglican church in Sydney has been because of his inability to practise his own faith and considers that he has done so for reasons entirely unrelated to any involvement with the Eastern Lightning religion in China.

    19. … The Tribunal considers that the evidence in relation to this issue and the applicant’s inability to satisfactorily explain key aspects of his claims in his written statement raises further doubts as to his claims to have been involved with the Eastern Lightning religion.

    21. …The Tribunal does not accept the applicant's explanation for his failure to expand on this issue when specifically asked what he fears in China and that he would instead only refer to his inability to practise his religion, particularly given that he had discussed many other aspects of his claims which were included in his statement. The Tribunal considers that had the applicant's 1 computer been hacked "mysteriously'' that he would have raised this issue as one of the most important reasons for his fear of returning to China. In the Tribunal's view, the applicant did not mention this during the hearing when specifically asked what he feared in China because he had forgotten that aspect of his claims. In the Tribunal's view, the evidence in relation to this issue is further indicative of the fact that the applicant has fabricated his claims for protection.

    22. The Tribunal accepts that the applicant appeared to exhibit a reasonable understanding of some aspects of the Eastern Lightning religion when asked by the delegate and by the Tribunal. However, the Tribunal considers that this knowledge could readily have been learned from the Internet given his own evidence at the hearing which is that the Eastern Lightning religion has its own website which is written in Chinese characters and that is how he learns about the religion. The Tribunal is not satisfied that the applicant's knowledge of some aspects of the Eastern Lightning religion overcome the significantly adverse findings that the Tribunal has made above in relation to the considerable delay in the lodgement of the application; his return to China on two occasions and other aspects of his evidence. The Tribunal is drawn to the conclusion that the applicant who according to the application form speaks, reads, and writes both Mandarin and English, has learned about the Eastern Lightning religion from the Internet in an attempt to fabricate a claim for protection in Australia.

    23. Having considered the totality of the applicant's claims and evidence, the Tribunal is not satisfied that the applicant has provided a truthful account of his reasons for seeking protection in Australia some 12 years after his initial arrival in circumstances where he returned to China on 2 occasions and remained in Australia unlawfully for some 5 years without applying protection during that period. The Tribunal has also found that other aspects of the applicant's claims are problematic. The Tribunal does not accept, therefore, that the applicant or his family are members of the Eastern Lightning religion or any other underground religions in China. Nor does the Tribunal accept that any members of his family have been arrested, detained or beaten or have suffered difficulties in relation to employment as a result of their membership of Eastern Lightning religion or that his uncle fled to Japan for this reason. Nor does the Tribunal accept that the applicant's name was found by the authorities or that his computer was hacked or that he participated in Eastern Lightning services on QQ. the Tribunal does not accept that the QQ records provided to the Department which do not related to the period 2007 to 2009 which was the period the applicant claimed to have been participating in these services, support the applicant's claims. Having not accepted that the applicant or his family were or are members of the Eastern Lightning religion; the Tribunal is not satisfied that the applicant will seek to be involved in the Eastern Lightning religion his return to China. Although the Tribunal has been prepared to accept that the applicant has been involved in Anglican church services in Australia, the Tribunal does not accept that this will result in the applicant seeking to be involved in any such services upon his return to China or that any involvement in this church in Australia will result in a real chance of serious harm to the applicant upon his return.

    24. The Tribunal is not satisfied, therefore, that there is a real chance that the applicant will suffer serious harm if he returns to China now or in the reasonably foreseeable future for reasons of his religion or for any other Convention reason. The Tribunal is not satisfied, therefore, that the applicant has a well founded fear of persecution if he returns to China now or in the reasonably foreseeable future.

12. The Tribunal then assessed the issue of the applicant in relation to complementary protection.  The Tribunal found that it was not satisfied the applicant would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture, cruel and humane treatment or punishment and degrading treatment or punishment for any reason upon his return to China.  Accordingly, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk he will suffer significant harm.

13. It was in those circumstances the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation and concluded that the applicant did not meet the refugee criterion under s.36(2)(a) or the alternative criterion under s.32(2)(aa). It is clear that the Tribunal undertook a proper review and consideration of the applicant’s claim and made findings that were open to the Tribunal. There is no substance in the assertion that the Tribunal failed to consider the applicant’s fear of return to China or failed to consider his assertions in relation to his commitment to the Eastern Lightning CHurch. On a fair reading of the decision as a whole, it is clear that the Tribunal carefully addressed this claim and relevantly, the Tribunal found, was open to it, that it was not satisfied that the applicant or his family are members of the Eastern Lightning Church and found that the claim was contrived.

14. Accordingly, there is no substance in ground 1.  In relation to the proposition in Ground 2 that the Tribunal did not consider the applicant’s evidence, it is clear for the reasons that I have already given, that the Tribunal carefully considered the applicant’s evidence and clearly had regard to the applicant’s explanations and the findings made by the Tribunal were open to it.  In relation to ground 3, it is clear that the Tribunal engaged in a thorough review of the applicant’s participation with the Anglican Church in Hurstville and notably, the Tribunal did not reject the applicant’s claim to be involved with the Anglican Church and was prepared to accept that the applicant may have attended Anglican services in Australia.

1. The Tribunal, however, pointed out that the applicant’s attendance at the Anglican Church failed to demonstrate the applicant had a sufficient and proper understanding of the Eastern Lightning Church and failed to provide any foundation for a genuine fear of persecution.  To the extent that the applicant alleges that the decision was unfair or unreasonable, I am clearly satisfied that the findings were open and cannot be said to lack an evident and intelligible justification.  I am also satisfied that the Tribunal engaged in an entirely orthodox reasoning process underpinning the adverse credibility findings (see Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 at [10]), and for the reasons I have said, it was open for the Tribunal to make those adverse credit findings.

2. Further, in relation to ground 4, it is clear that the applicant was given a property opportunity by the Tribunal to respond to its concerns in respect of the applicant’s credit and it cannot be said that there was any non-compliance with s.425 of the Migration Act 1958.  In these circumstances, there is no substance in any of the grounds of the application. Nor to the extent that applicant identified in orders sought, a series of criticisms, each of those criticisms are without substance.  I am clearly satisfied there was no jurisdictional error by the Tribunal in the conduct of its review. The proceedings have no reasonable prospect of success. Accordingly, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 March 2015