SZUTT v Minister for Immigration

[2015] FCCA 721

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 721

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

NAHI v Minister for Immigration [2004] FCAFC 10
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
VTAG v Minister for Immigration (2005) 141 FCR 291

Applicant: SZUTT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2024 of 2014

Judgment of: Judge Driver

Hearing date: 27 March 2015

Delivered at: Sydney

Delivered on: 27 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong of DLA Piper

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 2024 of 2014

SZUTT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 25 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from China and had made claims of religious persecution.  Background facts relating to the applicant's protection claims and the decision of the Tribunal on them are set out in the Minister’s written submissions filed on 17 March 2015.    

3. The applicant's protection visa application was refused by the delegate of the Minister on 20 December 2013.[1]  The applicant provided a statement with the application, which claimed in summary:

   a)the applicant had been baptised at the age of seven and he and his family are members of the Local Church;

   b)the applicant was denied admission to any college for not being "politically qualified" and was discriminated in his career;

   c)on the eve of the 2008 Olympic Games, the applicant and his brother were arrested by the police, who "assaulted" their congregation;

   d)on the eve of Easter 2010, the applicant and his brother went to preach in Nanjing.  The police stormed their residence there but the applicant and his brother were not home;

   [1] Court Book (CB) 46

4. The applicant applied to the Tribunal on 15 January 2014[2] and appeared before it on 2 April 2014.[3]  At the Tribunal hearing the applicant provided:

   a)various photographs[4] of the applicant attending a Local Church in Sydney; and

   b)a letter from William Poh and David Chen (“Responsible Brothers”) confirming that the applicant had been meeting regularly with The Local Church in Sydney since May 2013.[5]

   [2] CB 67

   [3] CB 88

   [4] CB 95-99

   [5] CB 100

The decision of the Tribunal

1. The Tribunal held that the applicant was not a genuine Local Church member.  It referred to country information that it was essential for Local Church members to attend the Church's meetings regularly and did not accept that applicant's explanation as to why he had not attended any Local Church for about 20 months.[6]

   [6] see [55]

2. The Tribunal also held that the applicant's delay in making the decision to leave China by six months after his claimed escape from Nanjing's police arrest,[7] the applicant's departure from China without any problem[8] led it to find that his claims for protection were fabricated.

   [7] at [57]

   [8] at [58]

3. The Tribunal accepted that the applicant demonstrated knowledge about the Local Church, but had learnt this knowledge to try and qualify for the protection visa, not because he was a genuine Local Church member.[9]

   [9] see [59]

4. The Tribunal did not accept the applicant's claim that he attended a church in Rockdale (which was not a Local Church) numerous times between December 2011 to May 2013 as the only supporting evidence he had provided was his own, which the Tribunal held was not reliable.[10]

   [10] see [60]

5. The Tribunal accepted the applicant's claim that the attended the Local Church in Sydney since May 2013, but disregarded the conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth).[11]

   [11] at [61]

6. The Tribunal held that the applicant was not a credible witness[12] and as a result, did not accept any of the claims that he advanced in support of his visa application.[13]

   [12] at [61]

   [13] see [63]

7. In respect of complementary protection, the Tribunal was not satisfied that the applicant would be targeted or mistreated by the authorities in China for being a Local Church member or for any Local Church related reason, and was not satisfied that he was of any interest to the authorities in China.[14]  The Tribunal also accepted that the applicant had been attending the Local Church in Sydney since May 2013, however was not satisfied that his Church attendance would bring the applicant to the unfavourable attention of the authorities in China.[15]

   [14] see [64]

   [15] see [65]

The present proceedings

1. These proceedings began with a show cause application filed on 31 July 2014.  The applicant continues to rely upon that application.  He has not taken up the opportunity I afforded him to file and serve an amended application and additional evidence. 

2. As noted in the Minister’s submissions, there is an attachment to the application which, under the heading, “The Grounds of the Application are”, contains a summary of the applicant's protection claims.  Under the heading, “Orders sought by Applicant”, there are five paragraphs:

   1, I don’t think RRT’s made a fair decision for my review as the member never untaken a careful and thorough consideration on my fear of no return to origin due to my commitment of local church, which has been outlawed and persecuted in China since early 80s.

   2, RRT failed to consider in good faith with my statement, explanation and comments given in the hearing, ignoring the hard experience and threat due to my involvement and practice with underground church in origin.

   3, RRT failed to prudently consider my constant pursuing in Christianity and church involvement in Australia especially my knowledge and church reference provided by church elder.

   4, RRT failed to well consider my comments as invited off the hearing with details on each question asked.

   5, It is unfair for RRT to make a judgment and decision simply depending on general country information and ignore the particulars and in my case by swiping away the details of explanation in particular the reason and special manner of departing China.  RRT has ignored the fact that anything out of normal practice, track or procedure may definitely happen via paid arrangement or personal contact, and this is norm and prevailing social practice in present China. (errors in original)

3. The application is supported by an affidavit by the applicant filed with it, which I received as a submission. 

4. I have before me as evidence the court book filed on 26 August 2014. 

5. Unfortunately for the applicant, although he vigorously disputes the outcome of the review before the Tribunal, and the reasoning of the Tribunal leading to that outcome, the dispute does not rise above a simple contest over the merits of the Tribunal decision.

6. In his oral submissions, the applicant sought to deal with the central element of the Tribunal’s reasoning, which was the applicant’s delay of about 20 months after arriving in Sydney before becoming involved with the Local Church here.  The Tribunal saw that delay as inconsistent with the applicant's claim to have been a committed Local Church member in China and when he came to Australia.  It was central to the Tribunal’s reasoning in rejecting the credibility of his claims. 

7. The applicant put to me from the bar table that when he arrived in Sydney, he put his trust in a man who apparently came from his local area in China.  He said that he paid this man in order to find him an appropriate church in Sydney, but that the man cheated him.  He conceded that part of the reason for the payment was to support a future claim for protection. 

8. While that explanation may well be true, it does not give rise to any viable legal challenge to the Tribunal’s reasoning.  The mere fact that the applicant was contemplating, possibly for a lengthy period, a claim for protection, before making it, and was paying someone to assist him, including to help him find a church to attend, does not undermine the Tribunal’s reasoning that the applicant was not a genuine member of the Local Church prior to the time when he commenced attending church in Sydney, which the Tribunal found was conduct engaged in solely for the reason of enhancing his claims to protection.

9. In his oral submissions, the applicant otherwise repeated his protection claims. 

10. The Minister’s submissions deal adequately with possible or hypothetical grounds of review arising from the application.  I agree with those submissions.

Ground 1 and 2

1. The first ground alleges that the Tribunal did not undertake a “careful and thorough consideration” of claims to fear harm as a member of the Local Church.  The second ground asserts that the Tribunal failed to consider “in good faith” the applicant’s statement, explanations and comments.  Properly understood, these grounds go no higher than to seek impermissible merits review.  Plainly, the Tribunal undertook a consideration of the applicant's claims and the finding that the applicant is not credible is a matter for the Tribunal alone.  Such a finding was open to the Tribunal to make and does not, in of itself, indicate that the Tribunal was not acting in good faith.  The Tribunal is not required to uncritically accept everything that an applicant claims in order to establish it was acting in good faith.

Ground 3

1. Ground 3 asserts that the Tribunal failed to consider the “knowledge” and “church reference” provided by Local Church elders.

2. The Tribunal accepted the applicant had been attending the Local Church in Sydney since May 2013, relying upon the evidence from Mr Poh and Mr Chen of the Local Church in Sydney and the photographs provided by the applicant.[16]  Contrary to the applicant's assertions, the evidence was considered by the Tribunal.  There was no failure to consider, and to the extent that the applicant is challenging the Tribunal's failure to accept this evidence, there is no arguable case of jurisdictional error.

   [16] see [61] and [65]

Ground 4

1. The fourth ground is difficult to understand and asserts that the “RRT failed to well consider my comments as invited off the hearing with details on each question asked”.  To the extent that the applicant seeks to assert that the Tribunal did not properly consider the applicant's answers to its questions, there is no arguable case of jurisdictional error.

Ground 5

1. The fifth ground states that the “RRT ignored the fact that anything out of normal practice, track or procedure may definitely happen via paid arrangement or personal contact and this is norm and prevailing social practice in present China.” 

2. The applicant appears to be referring to the Tribunal’s reliance on country information[17] which stated that individuals wanted by the authorities, including religious leaders were prevented from travelling overseas.  The Tribunal held[18] that country information showed that individuals, including preachers and those who are under investigation or being looked for by the police would be on the alert lists.  However, the fact that the applicant was able to depart China without any problem, was not congruous or compatible with his claimed adverse profile.

   [17] at [49]

   [18] at [58]

3. The country information to which a Tribunal has regard and the weight it gives that information is a factual matter for that Tribunal.[19]

   [19] NAHI v Minister for Immigration [2004] FCAFC 10, [11]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 64-65 (Brennan J); VTAG v Minister for Immigration (2005) 141 FCR 291, 298[41]

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

5. 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 thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 March 2015