SZVEJ v Minister for Immigration

[2015] FCCA 970

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEJ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 970

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where application seeks merits review – no jurisdictional error established – application dismissed.

Legislation:

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

Applicant: SZVEJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2702 of 2014

Judgment of: Judge Jarrett

Hearing dates: 4 March, 15 April 2015

Date of Last Submission: 15 April 2015

Delivered at: Darwin

Delivered on: 17 April 2015

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter.

Solicitor for the First Respondent:     Ms Given

Solicitors for the First Respondent:          Sparke Helmore Lawyers

The second respondent entered a submitting appearance.

ORDERS

1. The application filed on 29 September, 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

SYG 2702 of 2014

SZVEJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application for judicial review of a decision of a refugee review tribunal asserts that the tribunal failed to:

   a)properly take into account some integers of the applicant’s claims;

   b)denied the applicant natural justice;

   c)made errors of law by not considering the applicant’s submissions or evidence which was significant and critical to the decision under review.

2. However, for the reasons that follow, the application must fail.  The tribunal did consider all of the integers of the applicant’s claims.  It did not deny the applicant natural justice as he alleges and, in my view, the tribunal made no errors of law in its determination of the review application pursued by the applicant.

3. There are a number of other matters specified in the grounds of review, but those matters are not proper grounds of review.  They are no more than repetition of the factual matters first raised by the applicant with the first respondent’s department and before the tribunal.  In that respect, they represent nothing more than dissatisfaction with the tribunal’s findings of fact. 

4. The applicant has had two hearings before me.  During the first, the applicant suggested that the presentation of his case before the tribunal was impaired by incompetent interpretation.  So as to satisfy myself about that matter, at the conclusion of the first hearing, I directed the first respondent to file and serve an affidavit annexing a transcript of the tribunal hearing.  That was done.  At the second hearing before me, and with the benefit of the transcript of the tribunal hearing, the applicant advanced no submissions of substance towards his assertion that what he perceived to be incompetent interpretation had compromised his ability to properly present his case to the tribunal. 

5. The applicant is a national of China.  His claims have varied over time.  He made certain claims in his protection visa application and the accompanying claim statement in July 2004.  Those claims, essentially, were that his parents were members of the Anglican Church and were the leaders of an “underground” church in China.  He claimed that his father had been harmed physically because of his involvement in the church and church related activities.  He claimed that both of his parents had been arrested for their religious activities.  He claimed that his father had sent him to Australia to study and live, so as to avoid the persecution to which his parents were subjected.  His claims gave the impression that he was a practicing Christian who enjoyed the religious freedoms that Australia offered.  He asserted a well-founded fear of persecution based upon the proposition that he would automatically be arrested if he returned to China because of his links to his parents and his own religious activities and convictions. 

6. For the purposes of his visa application the applicant was interviewed in August, 2014.  At that time the applicant said that he did not know anything about Christian religion.  He had not joined a church in Australia and his parents were Catholics not Anglicans.  He claimed that they had been arrested on several occasions but had been released after paying bribes to the arresting police.  The applicant said that his parents did not want him to return because their religious activities might bring him to the attention of the authorities.  He made a further claim to the effect that the local authorities had persecuted his parents because corrupt government officials wanted to sell off land that they owned in their local province.  He told the interviewer that if he returned to China he would return to a different province where he was unknown and he could not be associated with his parents. 

7. The applicant filed his review application on 22 August, 2014.  He appeared before a refugee review tribunal on 22 September, 2014 to give evidence and present arguments.  As discussed above, the applicant had the assistance of an interpreter. 

8. At the tribunal hearing, the applicant asserted that he would be arrested upon his return to China because of his parents’ involvement in a “major underground Catholic Church”.

9. The tribunal taxed the applicant with the apparent inconsistencies in his claim for protection and his interview in August, 2013.  The Tribunal records that when challenged with these inconsistencies the applicant became agitated and the interpreter had difficulty keeping up with the applicant.  The tribunal put to the applicant a number of concerns he harboured about the applicant’s claims.  I will not repeat them.  They are set out between paragraphs 34 and 38 of the tribunal’s reasons.  I will not repeat the tribunal’s discussion of those matters.  It is unremarkable. 

10. The tribunal raised the applicant’s immigration history with him.  The tribunal was concerned, rightly in my view, with the fact that the applicant did not apply for protection when he first arrived in Australia in 2008 on a student visa.  He did not apply for a protection visa in 2011 when his student visa expired.  He had remained in Australia unlawfully for a number of years following the expiry of his student visa.  He made attempts in 2012 to apply for a protection visa, but those applications were not completed by him because he failed to complete biometric testing for the purposes of establishing his identity.  Those applications lapsed.

11. His present visa application, the subject of this review, was not made until July, 2014 after he was located and detained under the Migration Act 1958 (Cth). When he was detained, he told the departmental officer that he had no reason why he could not return to China and he would return to China if he was required to do so. He said he remained unlawfully in Australia because he liked being here. The applicant told the tribunal that he would be “a dumb-dumb” if he told a stranger everything about himself. He blamed his migration agent for not following through with his earlier protection applications in 2012.

12. The tribunal did not think the applicant’s claims were credible.  The tribunal was careful not to approach the question of the applicant’s credibility too restrictively.  It reminded itself that a degree of confusion or an omission on the part of a visa applicant might not mean that the applicant is not telling the truth.  But the tribunal concluded that the inconsistencies in the applicant’s claims were such that it went beyond mere confusion or an aberrant omission.

13. The tribunal rejected the applicant’s explanations for the inconsistencies that it identified in his claim.  It did not accept his explanation for his failure to follow up on his 2012 visa applications.  The tribunal concluded that it could not accept the applicant’s claims and his evidence at face value.  It approached the applicant’s claims and evidence “with caution”.

14. The tribunal noted that it was possessed of no country information that supported the applicant’s proposition that adults who were not practicing Christians or Catholics were arrested and persecuted because their parents were practicing Christians or Catholics.  In any event, the tribunal said that it would not accept any of the applicant’s claims given the view that it had come to about the unsatisfactory nature of his evidence.  The tribunal paid specific attention to a photograph that the applicant had produced that he claimed was of his father’s leg, showing a scar which the applicant claimed was from his father being beaten.  The tribunal rejected that the photograph, of itself, demonstrated the arrest, detention or beating of the person depicted in the photograph, even if it was a photograph of the applicant’s father.

15. Ultimately, the tribunal rejected the applicant’s claims because it did not find them credible.  On the basis of the approach taken by the tribunal to the factual matters that informed the applicant’s claim for protection, the tribunal determined that he did not satisfy the criterion for complementary protection either. 

16. The decision under review was affirmed. 

Consideration

1. The applicant did not take the opportunity presented by the directions made to prepare this application for hearing to either file an amended application more properly setting out or particularising his grounds for review, or file written submissions that explained his case in more detail. 

2. As he explained his case to me, it seems that he thinks that the tribunal simply made the wrong decision and it should have accepted the claims that he had made. 

3. The tribunal did consider all of the integers of the applicant’s claims.  It set out carefully and accurately each of the claims made by the applicant at the various points along the way of his application.  The tribunal set out its reasons for rejecting those claims.  It was not obliged to accept the applicant’s claims uncritically and was entitled to reject them if it thought fit to do so.  Its reasons for doing so are transparent.

4. Nor did the tribunal conduct the proceedings before it in a way which resulted in a denial of natural justice to the applicant.  The tribunal invited the applicant to a hearing and he attended.  He was given the opportunity to present evidence and make arguments to the tribunal.  The tribunal put to the applicant matters of concern to the tribunal.  It does not appear that the tribunal acted upon any information that it was obliged to put to, but did not put to the applicant.  Whilst an issue arose with the interpreter that was assisting the applicant at the tribunal hearing, that difficulty was resolved and for the reasons I have already given, that did not result in a denial of natural justice to the applicant.  There is nothing in the interpretation point. 

5. I can identify no errors of law in the tribunal’s approach, or its reasoning as disclosed in the written reasons for decision.  The applicant could point to none.

Conclusion

1. The tribunal’s decision is not attended by jurisdictional error. This application for review must be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 April, 2015.

Associate: 

Date: 17 April 2015