SZUOU v Minister for Immigration

[2015] FCCA 508

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 508

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.425

Applicant: SZUOU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1730 of 2014

Judgment of: Judge Driver

Date of Last Submission: 6 March 2015

Delivered at: Sydney

Delivered on: 6 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1730 of 2014

SZUOU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 6 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India.  He had claimed protection on the grounds that he would suffer harm in India because he had converted to Christianity and because his marriage to his wife had failed and had been dissolved.  The Minister’s delegate rejected that claim, and the applicant sought review before the Tribunal. 

2. The Tribunal was unable to make a favourable decision on the papers, and invited the applicant to a hearing pursuant to s.425 of the Migration Act 1958 (Cth) (Migration Act). The applicant was questioned at that hearing about his claims. The Tribunal towards the end of the hearing expressed significant doubt about the genuineness of the applicant’s asserted Christian faith. In its decision, the Tribunal found that the applicant was not a witness of truth.

3. The Tribunal was concerned about three things.  The first was inconsistencies in the applicant’s evidence at different times about the reason why his parents-in-law wished to harm him.  The religious component of that claim had been increased and developed by the applicant over time.  Secondly, the Tribunal was concerned at the applicant’s delay in applying for protection.  He arrived in Australia in 2008 but did not seek protection until 2013.  Thirdly, the Tribunal was concerned about what it saw as the incongruity of the applicant’s sudden adoption of Christianity after he came to Australia.  The applicant’s interest in and pursuit of Christianity appeared to have evolved over time and for no obvious reason.  The Tribunal concluded that the applicant’s claims of past events were false. 

4. As to his asserted religious faith, the Tribunal accepted at [26] of its reasons[1] that he had some knowledge of Christianity and some degree of familiarity with the Bible.  The Tribunal acknowledged that the applicant produced a baptismal certificate dating from January 2009.  Nevertheless, the Tribunal found at [27] of its reasons that the applicant’s evidence about his conversion to Christianity and his telling family and others about that, the failure of his marriage because of that, and threats being made to him on the basis of his religion, were all false.  Critically, the Tribunal stated:

   [1] court book , page 135

   The applicant will not practice Christianity on return to India because he is not a Christian. 

5. The Tribunal found that the applicant did not qualify for protection, either as a refugee or pursuant to the complementary protection criteria. 

6. These proceedings began with a show cause application filed on 25 June 2014.  The applicant continues to rely upon that application.  He has not taken up the opportunity I afforded him in orders made on 23 July 2014 to file and serve an amended application.  There are two grounds in the application:

   1. The Member of the Refugee Review Tribunal Mr Paul Millar did not understand my claim.

   2.I am currently listening to the CD and I will submit evidence as to why the Member did not understand my claim.

7. As is noted in the Minister’s response filed on 10 July 2014, the first ground is unparticularised, and the second ground is simply a promise to submit further evidence.  That promise was kept. 

8. The applicant filed an affidavit on 26 February 2015 by Mr Toufic Laba-Sarkis.  Mr Laba-Sarkis has assisted the applicant by preparing for him transcripts of both the interview before the Minister’s delegate on 25 September 2013 and the hearing before the Tribunal on 5 June 2014. 

9. I also have before me as evidence the applicant’s affidavit filed with his show cause application and the court book filed on 8 August 2014. 

10. I declined to receive a further affidavit made by the applicant and filed on 26 February 2015.  That affidavit annexes a document apparently emanating from the Glad Tidings Assembly of Christ Church at Prestons.  The document is addressed to the Court and deals with the applicant’s involvement in the church.  The document is apparently intended to support the proposition that the applicant is a genuine Christian.  I declined to receive that material because it significantly postdates the Tribunal decision.  It did not assist me in assessing any argument of legal invalidity in the Tribunal’s decision.  One thing that is apparent from the evidence before me is that the applicant’s faith has developed over time.  It is entirely possible that he is a genuine Christian now but was not at the time of the Tribunal decision.  I do not need to make any finding on that issue. 

11. I invited the applicant to make oral submissions in support of his application.  His concern, perhaps understandably, focuses on [27] of the Tribunal’s reasons.  He is indignant with the Tribunal’s finding that he is not a Christian.  That indignation is understandable.  It would have been open to the Tribunal to find that the applicant was at the time of the Tribunal’s decision a genuine Christian.  It would not have been inconsistent with such a finding for the Tribunal to find that his claims of harm threatened by his family had been fabricated. 

12. The Tribunal in such a circumstance would have nevertheless had to go on and consider whether the applicant as a Christian faced a risk of harm in India in the future.  The Tribunal’s finding that the applicant was not a Christian obviated the need for that inquiry.  The course taken by the Tribunal fills me with some unease.  The applicant before me impressed me as a genuine person.  However, the possibility that the Tribunal was wrong in finding that the applicant was not at the time of its decision a genuine Christian does not support an arguable case of jurisdictional error.  That is because that finding was open to the Tribunal on the material before it. 

13. Ultimately, the applicant asserted in oral argument that the tribunal’s finding was unreasonable.  It was, however, a finding about which reasonable minds can differ.  The finding was based logically on the adverse credibility concerns stemming from inconsistencies in the applicant’s claims of past harm.  The applicant’s delay in applying for protection did not, in my opinion, logically bear upon the genuineness of the applicant’s faith.  He had expressed that faith in various ways, virtually from the time he had arrived in Australia, years before he sought protection.  The applicant’s delay in seeking protection bears on the genuineness of his fear, rather than the genuineness of his faith.  He may be a genuine Christian, but not a refugee. 

14. What the Tribunal saw as the incongruity of the applicant’s sudden adoption of Christianity in Australia did bear upon the Tribunal’s finding in relation to the genuineness of his faith.  It appeared to the Tribunal curious that the applicant’s faith seemed to begin suddenly and for no obvious reason.  The Tribunal evidently formed a view that the expression of faith was opportunistic.  That is odd, in that if the applicant was planning to make a claim for protection based upon his Christian faith which he had expressed since 2008, it made no sense to delay that claim until 2013.  These are matters that could be considered further by the Minister if he were so minded.  That is not something over which the Court has any influence. 

15. On the ground of unreasonableness, I am not persuaded that there is an arguable case, because the Tribunal’s conclusion is supported by what is for the most part a logical basis of reasoning. 

16. I asked the applicant if he had any concerns about the conduct of the hearing of the Tribunal. He said that he had no concerns. Nevertheless, I have considered the transcript of that hearing. The questioning about the applicant’s faith commenced fairly early in the hearing and continued for the greater part of it, however, there is nothing in that questioning that could be considered offensive or unfair. The Tribunal properly put to the applicant its concerns about his asserted faith. There is no arguable claim that the Tribunal failed to meet its obligations pursuant to s.425 of the Migration Act.

17. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

18. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The applicant did not wish to be heard on costs.  The Minister seeks an order consistent with the scale which applied at the time the application was filed.

19. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 March 2015