SZVAG v Minister for Immigration
[2014] FCCA 2534
•15 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVAG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2534 |
| Catchwords: PRACTICE AND PROCEDURE – Application raising no arguable case for the relief claimed. |
| Legislation: Migration Act 1958, ss.36, 424A, 486I Federal Circuit Court Rules 2001, r.44.12 |
| Cases Cited: 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 |
| First Applicant: | SZVAG |
| Second Applicant: | SZVAH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2488 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 15 October 2014 |
| Date of Last Submission: | 15 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2014 |
REPRESENTATION
| Solicitors for the Applicants: | Mr C. McArdle of McArdle Legal |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2488 of 2014
| SZVAG |
First Applicant
| SZVAH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant is a citizen of China who last arrived in Australia on 7 May 2012 as the holder of a visitor’s visa. On 2 August 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 applicant, her husband, was included in that application as a member of her family unit. On 16 July 2013 the applicants’ application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the second respondent (“Tribunal”) 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.
The matter is before the Court for consideration of the Minister’s application in a case that the applicants’ application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.
The proceedings will be dismissed if the applicants do 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).
For the reasons which follow, the application will be dismissed pursuant to r.44.12(1)(a) of the Court’s Rules.
Background facts
The applicants made their claims for protection in the first applicant’s protection visa application, in a statutory declaration attached to that application, at a departmental interview on 2 December 2012 and at a Tribunal hearing on 6 February 2014. The applicants’ son also gave evidence at the Tribunal hearing in support of their application. In addition, following its hearing the Tribunal wrote to the applicants pursuant to s.424A of the Act seeking their comments on or responses to certain information and in response the first applicant elaborated on their claims in a statutory declaration dated 3 July 2014.
As summarised by the Tribunal the first applicant made the following claims in a statutory declaration declared in support of her protection visa application:
a)in December 2006 she lost her job and was unemployed for over a year. From January to April 2008 she worked in a friend’s gift shop. During that period her friend evangelised to her and took her to Local Church gatherings, the first time being in January 2008, and she was baptised on 16 February 2008. She persuaded the second applicant to attend gatherings and he was also baptised on 29 March 2008;
b)in April 2008 she and the second applicant obtained employment with a Korean/Malaysian joint venture company in China;
c)while in China she publicly evangelised and established three new groups of gatherings of the Local Church;
d)on 9 October 2010 the second applicant and their son, who was the holder of a student visa, arrived in Australia. The second applicant went back to China on 7 January 2011 and then returned to Australia on 18 February 2011 as the holder of a student guardian visa. In October 2010 he started attending a Local Church in Sydney;
e)she first arrived in Australia on 13 August 2011 on a visitor visa and during her three month visit she attended a Local Church. When she returned to China on 11 November 2011 she carried with her some CDs and written material for circulation to Local Church members in China;
f)she returned to Australia on 1 January 2012 and again attended a Local Church. When she returned to China she again carried some Local Church material. While in China during that period she helped a friend establish a Local Church gathering. On 4 May 2012 she was advised that that friend had been arrested and so she went into hiding before departing China on 6 May 2012;
g)she had been told by a friend in China that she was considered to be a leader of the Local Church which the authorities considered to be an evil cult and she had been implicated in taking illegal material into China; and
h)her parents and siblings and the second applicant’s family in China had been harassed by the police. They had been questioned and/or threatened.
The Tribunal’s decision and reasons
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 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.
The Tribunal found that multiple aspects of the applicants’ evidence raised significant concerns which led it to be unsatisfied with the truthfulness of their claims and their reliability as witnesses. It was not satisfied that the applicants were genuine followers of the Local Church, that they had participated in the Local Church in China, that they were perceived as being Local Church believers, participants or promoters or that they had any genuine desire to practise the Local Church faith if they returned to China. In that connection the Tribunal:
a)found that although the first applicant had demonstrated an understanding of Local Church beliefs and practices during her departmental interview, such detail could have been easily learnt. It did not consider that that knowledge was determinative of the genuineness of the applicants’ claimed faith or of the truth of their claimed involvement with the Local Church;
b)found that at its hearing the first applicant had had difficulty elaborating on her written claims. It noted that straight-forward questions had to be put to her three or four times in an attempt to elicit a direct response and there was no explanation provided for her apparent difficulties in providing direct responses to questions put to her. In particular, the first applicant claimed in her statutory declaration that her parents and siblings had been investigated and threatened by the police but when questioned by the Tribunal she offered various responses after repeated prompting. The Tribunal found that the first applicant’s evidence on that issue was significantly lacking in detail on a matter central to her and the second applicant’s claimed fears of harm in China. It found that the first applicant’s evidence regarding the claimed mistreatment of her in-laws was similarly unconvincing. The Tribunal further found that the first applicant’s evidence that the second applicant’s siblings did not receive medical insurance or accommodation entitlements was significantly lacking in detail, uncertain, evolving, not forthcoming and unconvincing. It was not satisfied that any of the applicants’ family members remaining in China had experienced any difficulties with the Chinese authorities or that they had been questioned, warned, threatened or investigated because of the applicants’ involvement with the Local Church;
c)noted that the first applicant claimed that when she was first introduced to the Local Church by her friend in 2008 she was aware that it was regarded as an evil cult by the Chinese authorities, that the second applicant did not attend her baptism because he was worried about the risk of arrest and detention and that she knew in 2009, when she allegedly began to establish Local Church gatherings, that she could be questioned, arrested and imprisoned for her activities. In those circumstances, the Tribunal considered that the first applicant’s two year delay in applying for her passport, which was issued in June 2011, did not support her claimed fears in China. The Tribunal’s concerns were further compounded by the first applicant’s voluntary return to China on two occasions while her son and husband remained in Australia; and
d)noted that the applicants’ evidence was that their claimed employment struggles and their subsequent employment with the joint venture company in April 2008 were central to the development of their Local Church faith. However, it was not satisfied that the applicants’ employment or personal circumstances at the relevant times were as they claimed. The Tribunal doubted the truth of the applicants’ claimed reasons for becoming involved with the Local Church and the development of their claimed faith. In that regard it found that:
i)the applicants’ claims about their employment with the joint venture company were not supported by the second applicant’s employment history as set out in his student guardian visa application dated 22 November 2010, which indicated that he had been working for the joint venture company from July 2007 until January 2011, and his oral evidence to the Tribunal, which was to the effect that as one of the company’s senior officers he had been sent on a ten day trip to its head office in Korea in January 2008. The Tribunal did not accept the first applicant’s explanations of the second applicant’s evidence. It went on to find that the second applicant had occupied a stable and senior position with the joint venture company from February 2007 and by January 2008 was enjoying the advantages of that seniority, including international travel to Korea, well before his or the first applicant’s introduction to the Local Church. The Tribunal found that that cast significant doubt on the truth of the applicants’ claims that their employment hardships between January 2007 and January 2008 had made the first applicant intensely grateful towards her friend for her offer of work at her gift shop, which in turn influenced her to trust that friend to the point that she followed her to a church she knew was considered illegal in China or that it persuaded the second applicant to attend church and be baptised;
ii)the first applicant’s evidence that her faith began and within six weeks developed to the point that she was baptised was of concern. The Tribunal was also concerned about the truth of the claim that the second applicant attended the Local Church and became so devoted that he was baptised six weeks after he initially refused to attend the first applicant’s baptism;
iii)the applicants gave inconsistent evidence about the first applicant’s claimed employment at the gift shop: the first applicant said she worked there for four months between January to April 2008 while the second applicant told the Tribunal that he thought she had worked there for one year while he was working as a driver. The Tribunal further found that the second applicant’s evidence that he was working as a driver at that time was not supported by information in his student guardian visa application or his evidence that he had been employed as a senior officer in the joint venture company; and
iv)the first applicant gave inconsistent evidence regarding her employment history. In her application she stated that she had worked in a factory for thirteen years from January 1993 until December 2006, in her friend’s gift shop from January to April 2008 and with the joint venture from April 2008 until May 2012. However, at the Tribunal hearing she stated that immediately before working at the gift shop she had worked at a factory for four or five years and then later that she trusted her friend, the gift shop owner, because she had worked with her in another factory after December 2006 and through 2007. The Tribunal found the first applicant’s evidence to have been evolving, changing and evasive.
Having regard to all that information, the Tribunal was not satisfied that the applicants were not in stable employment between December 2006 and April 2008, that the first applicant worked in a gift shop or that the first applicant’s gratitude towards her friend encouraged her to participate in the Local Church which she and her husband knew could lead to arrest and detention. The Tribunal was not satisfied that the applicants had provided any convincing explanation as to why, given that awareness, they would have risked their safety and reputation and their child’s future to pursue the Local Church.
The Tribunal accepted that the applicants had attended Local Church meetings and activities in Australia. While accepting that their conduct was motivated largely by a desire to strengthen their claims to be refugees, it was not satisfied that that was their sole purpose and therefore took that conduct into account in assessing whether they faced a real chance of harm. However, it was not satisfied that the applicants or their son were genuine Local Church believers or that their conduct reflected genuine faith in the Local Church or any ongoing desire to express the Local Church faith or participate in Local Church activities in the reasonably foreseeable future. In this connection:
a)as the Tribunal was not satisfied that the first applicant had had any involvement with the Local Church in China, it was also not satisfied that such claimed involvement formed part of her motivation for taking the known risk of smuggling Local Church materials to China;
b)the Tribunal noted that the applicants’ evidence was that they had regularly attended church in Australia, often in the company of their son who was also a believer and who had been baptised in July 2009 when he was fourteen years old. However, the applicants’ son was unable to state the derogatory terms used to describe the Local Church. While accepting that the son might have been uncomfortable during its questioning, the Tribunal did not accept that that explained the anomalies in his evidence. It considered that if the applicants or their son were devout Local Church believers, their son would have been aware of the derogatory terms used in relation to the Local Church;
c)the Tribunal noted that the applicants’ son gave evidence inconsistent with the applicants’. In particular:
i)when questioned, the applicants’ son said that his maternal and paternal grandparents were Christian whereas the applicants stated that the second applicant’s family were not Christian and not supportive of their claimed participation in the Local Church;
ii)the son stated that the first applicant had only organised one gathering whereas she said she had been actively involved in setting up three; and
iii)the son stated that the Chinese authorities had attended gatherings where the first applicant had been present and stopped them, whereas the first applicant had not made a claim to that effect. The son also made no mention of the first applicant having sent or taken any Local Church materials to China or of her having any adverse profile in relation with having done so or in connection with her claimed profile as a Local Church organiser;
The Tribunal did not accept the first applicant’s explanations for her son’s evidence; and
d)the Tribunal concluded that the first applicant had not taken or sent any Local Church materials from Australia to China and was not satisfied that she or the second applicant were perceived by the Chinese authorities to have done so or to have participated in the Local Church in any way. It was also not satisfied that their Local Church activities in Australia had given them any profile in China which would give rise to any risk of harm in the reasonably foreseeable future or that they had any intention or desire to practise the Local Church faith if they returned to China.
Proceeding in this Court
In the application commencing this proceeding the applicants alleged:
1.The Applicant [sic] appeals against or in the alternative seeks a declaration as specified above [a declaration that the Tribunal’s decision was not made in accordance with law] regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 7 August 2014 on the grounds that it was not a decision under the act [sic].
Particulars
i.Section 5E
ii.Transcript and evidence, whereby the Tribunal refused to accept facts that are obvious.
2.The Tribunal appeared to “come what may” not permit the facts as to religious intolerance in China to be considered. The Tribunal misapplied the required application of the Refugee Convention with respect to the applicant’s [sic] Religious involvement.
3.The Tribunal was apparently so predisposed to refuse to believe the applicant [sic] as to deny them procedural fairness by way of statutory breach
4.The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.
5.Such other grounds as this Honourable Court may deem just.
That application was filed on 5 September 2014. On 18 September 2014, the applicants filed the affidavit of Yingxi Wu, affirmed on 11 September 2014, to which was annexed the transcript of the Tribunal hearing.
The Minister filed a response on 23 September 2014 which relevantly said:
…
2.The grounds of the application appear to be materially identical to those pleaded in SZTKR & Anor v Minister for Immigration & Anor SYG2574/2013, SZTMH v Minister for Immigration & Anor SYG2720/2013 and SZTMW v Minister for Immigration and Anor SYG2772/2013. The First Respondent contends that the grounds pleaded fail to raise an arguable case of jurisdictional error on the part of the RRT. Absent proper particulars, the grounds pleased are incapable of a meaningful response.
3.The First Respondent opposes the application to show cause accordingly, and will seek the immediate dismissal of these proceedings at the first Court date on 29 September 2014.
On 2 October 2014, relying on matters set out in his response, the Minister filed the present application in a case seeking dismissal of the matter pursuant to r.44.12(1)(a).
The Minister submitted in relation to the various grounds raised in the application that:
a)neither of the two particulars to ground one provided any support for the assertion that the Tribunal’s decision was not made under the Act. In addresses the Minister submitted that the allegation was meaningless on its face, in that the particulars disclosed no basis for the allegation;
b)the allegation that the Tribunal did not “permit the facts as to religious intolerance in China to be considered” addressed a matter which did not arise for consideration by the Tribunal, given that it had found that the applicants were not members of the Local Church;
c)the allegations in the third and fourth grounds of the application, that the Tribunal was biased or might reasonably have been apprehended to have been predisposed to a particular outcome, were not particularised by reference to any matter which could support such allegations. It was submitted that this was a significant matter given the heavy burden which a party bears when alleging bias and the need that such allegations be clearly proved; and
d)the fifth allegation did not disclose or raise any arguable case of jurisdictional error.
As I have said, the Minister’s application in a case was filed on 2 October 2014. Mr McArdle, who appeared for the applicants, informed the Court that he was overseas until 4 October 2014 but since then had been at work, at least on week days and, as I apprehend, last weekend too. That is to say, the applicants had a week and a half to provide some substance to their application beyond what appeared in it. However, rather than doing so, the applicants filed written submissions on 13 October 2014 which relevantly said:
a)their solicitors had not received a copy of the transcript of the Tribunal hearing before the initiating application had to be filed, and therefore those solicitors had had to rely on instructions in order to draft the application rather than on documents such as the transcript;
b)to obtain the necessary particulars, it was necessary for the applicants to use interpreters, which took time;
c)“we will seek leave to file an Amended Application arising out of supplementary information which has come to light upon examination of the transcript and further instruction…”;
d)“[w]e suggest most strongly that there will be particulars provided in a proper expeditious matter…”;
e)“[w]e could have done nothing prior to 18 September when we received the transcript, and can do nothing until we ordinarily and correctly peruse the transcript and seek ‘further and better instructions’ in the light of that documentation. That task has commenced”.
The applicants’ submissions then went on to address the similarities which this case’s pleadings were said to have with the pleadings in other cases filed by Mr McArdle’s firm.
The applicants argued that they could provide the particulars sought by the Minister if a more generous timetable were provided and that timetables of that sort had been provided in similar matters on other occasions. However, this was really no more than an argument that the timetable the applicants preferred should apply notwithstanding that the Minister had stated his concerns in relation to their application as early as his response and then in his application in a case.
The applicants said that the necessity to deal with the present application in a case had distracted their representatives from providing the particularisation. However, the application in a case should have concentrated their minds on the provision of particulars and ensured that any particulars which could have been provided were provided by today. I also note that no application was made for further time to provide particulars.
In support of the submission that their representatives had been engaged in addressing the present application in a case, the applicants pointed not only to their written submissions, but also to a bundle of authorities concerned with whether the proceedings had reasonable prospects of success, a matter which was raised in paragraph 16 of the Minister’s written submissions. However, that paragraph of the Minister’s submissions was not concerned with the r.44.12 application but with whether the certification made by the applicants’ solicitor pursuant to s.486I of the Migration Act 1958, that the proceeding had reasonable prospects of success, was properly made. That is to say, the bundle of authorities which was handed up was not addressed to whether there was an arguable case but to whether the certification should have been given, a completely different issue.
The tangential enquiry into the s.486I issue might have consumed considerable time and effort but that does not alter the fact that no particulars were provided, notwithstanding that the applicants had been on notice for some time that they were required. Specifically, it was not proved that the applicants and their representatives had no opportunity to identify even one arguable particular.
Conclusion
I accept the Minister’s submissions concerning the inadequacies in the application. I am not of the view that it discloses an arguable case.
Consequently, the application will be dismissed pursuant to r.44.12(1)(a) of the Court’s Rules.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 6 November 2014