SZUXP v Minister for Immigration & Border Protection
[2014] FCCA 2936
•3 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUXP v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2936 |
| 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: Migration Act 1958 (Cth) Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 Migration Act 1958 (Cth) s.36 |
| Cases Cited: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZUXP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2266 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 3 December 2014 |
| Date of Last Submission: | 3 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2014 |
REPRESENTATION
| The Applicant appeared in person with the assistance of an interpreter. |
| Solicitors for the Respondents: | Ms Natasha Blake (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2266 of 2014
| SZUXP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 13 August 2014 the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 21 July 2014 (“the RRT”).
On 12 November 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 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 her 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 her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. A copy of the relevant cost schedule was given to the applicant.
The applicant confirmed that she 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 25 November 2014. The applicant was also directed to file and serve written submissions in support of the grounds of her application by 25 November 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 her own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was given to the applicant.
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 applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
The applicant confirmed to the Court this morning that she had not filed any further documents, either in accordance with my directions or otherwise.
The applicant’s application for judicial review, filed on 13 August 2014, stated the grounds of review as follows:
“1. The Refugee Review Tribunal failed to provide the applicant (me) with the opportunity to comment on the information for my claims.
2. The Refugee Review Tribunal failed to carry out its statutory duty.”
In relation to ground 1, I asked the applicant what was the information which she says she was denied an opportunity to comment upon. The applicant responded that it was questions on Christianity.
In relation to ground 2, I asked the applicant in what way the RRT failed to carry out its statutory duty. The applicant responded that she had been asked questions about her Christianity and that she had given answers as to how Christianity is experienced in China and because of that the RRT thought her answers were wrong.
The first respondent filed submissions on 26 November 2014. Those submissions summarise the background, the applicant’s claim for protection and the tribunal’s findings as follows:
“Background
3. The applicant is a citizen of China. On 23 August 2007 she arrived in Australia on a student visa. The applicant travelled back to China on 15 March 2008, before returning to Australia on 23 April 2008. On 5 August 2009, the applicant's student visa was cancelled. For completion, but not that it is material, her visa was reinstated on 13 March 2012 due to a notification error. That student visa expired, on its own terms, on 15 March 2010.
4. On 2 July 2013 the applicant was placed in immigration detention.[1] On 15 July 2013 the applicant applied for a protection visa. [2] On 27 September 2013 the applicant was released from detention.
Applicant's claim for protection
5. The subject of the applicant's claim for protection is that she is a practising Christian in China. The applicant told the tribunal that her family in China had suffered harm in various ways, including abuse and detention, upon being "discovered" as "practising underground Christians".[3] The applicant contends that she will suffer similar harm if she returns to China.
[1] DR [13]-[14].
[2] DR, [15].
[3] See DR at [10] for outline of specific claims of harassment and persecution recorded by the Tribunal.
Tribunal findings
6. The Tribunal rejected the foundation of the applicant's claim for protection, it having held that:
a. the applicant did not grow up attending a Christian church in China,[4] and she would not practice Christianity if she returned to China;[5] and
b. the applicant's family did not suffer the type of harm that the applicant contended.[6]
7. The conclusions as referred to above were the product of a plethora of adverse credibility findings made by the Tribunal against various aspects of the applicant's evidence. The following is illustrative of the applicant's assertions which the Tribunal determined were either inconsistent or implausible:
a. lacuna of knowledge about Christianity: the applicant's knowledge of Christianity was not commensurate with that expected of a person who had been a practising Christian for a prolonged period. The applicant was not aware of the significance of Christmas Day, and suggested that Christ was born on either 1 January or a "different date determined by the lunar calendar".[7] The applicant also spoke of "Thanksgiving" as a day which Christians pray to God, and nominated the date of 23 March as being of particular significance to Christians;
b. attendance at church not actually covert or "underground": the applicant's evidence that she attended the same church as her family since she was a child was not accepted by the Tribunal. The Tribunal held that "regular worship in a Church building on Sunday for almost 20 years" did not reflect an experience of practising the religion in secret, as contended by the applicant;[8]
c. ignorance of the "risk" of practising Christianity in China: in addition to attending Church on a Sunday, the applicant told the Tribunal about "private gatherings of about ten people" which were held at various locations and determined the day before the meeting.[9] The applicant told the Tribunal that she did not know why these meetings were not scheduled, a comment which the Tribunal found to be "inconsistent with the evidence of someone who had been practising in the underground Christian church".[10] The Tribunal reasoned that if she had been so practising, she would have been "aware" of the risk of persecution and "very conscious" of the need for secrecy;[11]
d. delay applying for protection visa: it is implausible that a genuine applicant for protection would delay applying for a protection visa for just under six years.[12] The applicant explained to the Tribunal that she was unaware she was entitled to a protection visa.[13] The Tribunal rejected this claim, and noted that the applicant's partner had previously applied for a protection visa[14] and thus would have informed her at an earlier date to apply for protection if she had a genuine claim for it;[15]
e. applicant's story contrived: the Tribunal found it to be convenient that the applicant's story of the persecution of her family in China, specifically that they were detained in May 2008, occurred only two or three weeks after she returned from her visit to China in that year.”
[4] DR, [25].
[5] DR, [35].
[6] DR, [37].
[7] DR, [23].
[8] DR, [18].
[9] DR, [19].
[10] DR, [19].
[11] DR, [19].
[12] The applicant first arrived in Australia on 26 August 2007 but did not apply for the protection visa until 15 July 2013.
[13] DR, [28].
[14] This does not raise a s.424A issue as the fact that the applicant's partner had previously applied for a protection visa was raised by the applicant, thus falling within the exception of s. 424A(3)(b).
[15] DR, [31].
Ultimately, the RRT found the applicant not to be credible and rejected her claims to have been a Christian in China and to have been persecuted for that reason. The RRT’s decision record summarises exchanges it had with the applicant about her evidence and notes concerns that it put to the applicant about her claims and evidence and notes the applicant’s responses.
The RRT found that its finding that the applicant is not a credible witness was reinforced by her delay in applying for protection, noting that she did not apply for protection when she renewed her visa in 2008. The RRT put that concern to the applicant, noting her response that she did not know anything about protection when she arrived. However, the RRT did not accept her explanations for that delay.
The RRT concluded that the applicant did not have a genuine fear of harm for the reasons claimed and did not meet either the criterion of s.36(2)(a) or the complementary protection in s.36(2)(aa) of the Migration Act 1958 (Cth).
I accept the first respondent’s submissions in relation to ground 1 as accurate. That submission was as follows:
“11. To the extent that Ground one asserts that the applicant was denied the "opportunity to comment" the Minister refers to the following legal and factual factors which contradict or nullify this claim:
a. the applicant attended the hearing before the Tribunal pursuant to s. 425 of the Act and gave evidence in relation to the dispositive issues.[16] Furthermore, at the hearing the applicant was assisted by a Mandarin interpreter and was also represented by her registered migration agent;
b. the Tribunal indicated in its decision record that many of its adverse credibility findings were "put to the applicant" at the hearing[17] - it follows that there could not have been confusion in the Applicant's mind as to the matters that concerned the Tribunal;
c. the Tribunal made inquiries to assess the accuracy of the assertions made by the applicant. For example, the Tribunal investigated the applicant's reference to 23 March as being a significant day for Christians. No information was found which identified this date as a day of celebration for members of the Local Church in China. This enquiry was discussed with the applicant at the hearing;[18]
d. to the extent that the Tribunal relied on "country information" the applicant was not entitled to "comment" on it as it did not constitute information "specifically about the applicant", s. 424A(3)(a). The selection of country information, the weight to be placed on it, and the inferences to be drawn from it are all matters for the Tribunal and not the court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[12];
e. each time the Tribunal made a credibility finding which led to the conclusion that "it does not accept…" a certain fact or assertion made by the applicant, the Tribunal gave detailed and reasoned explanations for why this information was discredited as being either inconsistent or implausible.[19]”
[16] The applicant, by letter sent on 11 October 2013, (see folio 44) was invited to appear before the Tribunal. The applicant attended the hearing on 29 November 2013.
[17] For example, the finding made at paragraph 3.2(a) above, see DR [18].
[18] DR, [26].
[19] See for example, DR, 18.
It is well established that the RRT is not required to accept uncritically the evidence of the applicant before it (see 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).
Further, the RRT does not fall into error if, when assessing an applicant’s claim regarding religion, it does not cast itself in the role of arbiter of the level or kind of knowledge required by adhering to the particular faith in question (see Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 363; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]). The RRT did not adopt the role of arbiter in the case before this Court and legitimately asked questions and explored with the applicant her knowledge of her claimed religion as it was entitled to do in assessing the genuineness of that claim.
The RRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The RRT’s credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
The applicant’s complaints otherwise are more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot 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).
While 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 and none has been identified by the applicant.
The RRT referred to the relevant law in affirming its decision under review and applying that law to the facts as it found them. In the circumstances I am not satisfied that the application, filed on 13 August 2014, has raised an arguable case for the relief claimed.
Accordingly, the proceeding before this Court, commenced by way of application filed on 13 August 2014, should be dismissed pursuant to 44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 15 December 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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Jurisdiction
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Standing
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