SZVEY v Minister for Immigration

[2015] FCCA 2239

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2239

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Second Tribunal review – whether Tribunal was entitled under s.416 of the Migration Act 1958 to rely on findings made in its earlier review.

Legislation:

Migration Act 1958, ss.36, 91R, 416, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZVEY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2743 of 2014

Judgment of: Judge Cameron

Hearing date: 4 February 2015

Date of Last Submission: 4 February 2015

Delivered at: Sydney

Delivered on: 4 February 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr O. Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2743 of 2014

SZVEY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 17 December 2007.  On 2 October 2009 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that she feared persecution in China because of her Christian beliefs.  On 3 December 2009 the applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that she was not a person to whom Australia had 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”).  That decision was affirmed by the second respondent (“Tribunal”) on 9 March 2010.

2. On 28 January 2014 the applicant lodged a second protection visa application alleging that she feared returning to China because her husband had been violent towards her. The applicant ostensibly sought to have her application considered under the complementary protection criteria in s.36(2)(aa) of the Migration Act1958 (“Act”). A second delegate of the Minister refused the second application on 18 June 2014.  The applicant then applied to the Tribunal for a review of the second delegate’s decision.  She was unsuccessful before the Tribunal, differently constituted, and has applied to this Court for judicial review of the Tribunal’s decision on her second application.

3. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal briefly summarised the facts alleged by the applicant in her second protection visa application.  As summarised by the Tribunal, the applicant relevantly claimed to fear harm in China because:

   a)her husband had been violent towards her and if she returned to China she would ask for her matrimonial property and land which would lead to her husband abusing her again.  She was also afraid of her husband because he knew of her protection visa application on domestic violence grounds;

   b)although her main fear related to her husband’s violence towards her, as a Christian she would also face religious persecution in China; and

   c)her confidential details had been released by the Department on its website and she would be targeted because she had said negative things about the Chinese government in her first protection visa application.  The applicant produced a letter from the Department dated 12 March 2014 stating that the personal information of people in immigration detention, including their names, dates of birth, nationality, sex, details of their detention and whether any of their family members were also in detention, had unintentionally been made accessible on the Department’s website.  The letter stated that the information did not include any information about protection claims or contact information.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal concluded that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of removing the applicant from Australia to China, there was a real risk that she would suffer significant harm. 

2. The Tribunal was not satisfied that the applicant was a credible witness and did not accept that she had been a victim of domestic violence or that she was at real risk of harm from her husband.  It did not accept that she feared harm from her husband because of past harm, her protection visa application or for seeking her share of the matrimonial home.  The Tribunal found that the applicant gave inconsistent and unpersuasive evidence on aspects of her claim.

3. In relation to the release of the applicant’s personal information, the Tribunal accepted that information about her name, date of birth, nationality, sex and the details of her detention and whether any of her family members were also in detention might have become available on the Department’s public website and that that information might have been downloaded in China.  However, it noted that the evidence before it stated that no information about any protection claims had been released.  In those circumstances, the Tribunal did not accept that the Chinese government would be aware of the claims made by the applicant in her first protection visa application and was not satisfied that the information which might have been accessed by the Chinese authorities would make her of adverse interest to them.

4. The Tribunal was not satisfied that the applicant would face a real risk of harm because of her Christian activities were she to return to China.  In that regard it:

   a)noted that it had previously, albeit differently constituted, rejected the entirety of the applicant’s claims of involvement with Christianity in China and found that she had had no involvement with, and no commitment to, Christianity in China. As first constituted, the Tribunal had also accepted that the applicant had attended a church in Australia but had not been satisfied that she had done so otherwise than for the purpose of strengthening her protection claims and therefore disregarded that conduct pursuant to s.91R(3) of the Act. The Tribunal, as first constituted, concluded that the applicant would not engage in any religious activities if she returned to China and would not be of adverse interest to the Chinese authorities; and

   b)found that there was no indication that its first decision was erroneous in law or otherwise wrong or flawed. It was therefore satisfied that it was appropriate for it to apply s.416 of the Act and to take its findings in its first decision to be correct. Having taken the findings in its first decision to be correct, the Tribunal was not satisfied that the applicant faced a real risk of significant harm because of her religion were she to return to China. It went on to accept, based on its previous findings in the first decision, that the applicant had been involved in Christian activities in Australia but found that there was no evidence before it to suggest that she would be harmed as a result of those activities if she continued them in China which, in any event, it did not accept she would do. The Tribunal referred to country information indicating that Chinese citizens had a right to belong to five state-sanctioned “patriotic religious associations” which included Catholic and Protestant groups and concluded that the applicant would not be targeted for having participated in Christian activities in Australia or face a real risk of harm.

Proceedings in this Court

1. In the application commencing these proceedings, under the heading “Final orders sought by the applicant”, the applicant alleged:

   1.Some integers of my claims were not properly taken into account by the RRT member.

   2.I plead for an order not to remove me from Australia.

   3.I plead for an order to consider me for complementary protection and to redirect the Tribunal’s decision and order the Department to take this matter for further consideration.

2. Under the heading “Grounds of application” she alleged:

   1.I have more evidence and enough information for a fair complementary protection review.

   2.The RRT deprived me of natural justice.

   3.Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstabled for the rest of my life.

   4.The RRT made an error of law for not considering my submissions.

   5.I have been a debate amongst the gangsters that I may be coming back to China so they can physically harm me.

   6.Lots of threats have been sent as to my significant harm to my vulnerability which are never to be settled for the rest of my life.

   7.The situation had I had to go back home would be very critical and life threatening to myself; also I will be tortured for the rest of my life.

   8.The secondary respondent made an error of law by not considering evidences which were significant and critical to the decision under review.

3. At the hearing of this application the applicant made oral submissions to the Court concerning the fear she claimed to have regarding her potential return to China and, specifically, her alleged fears of domestic violence at the hands of her husband.  The applicant’s submission to the Court and the bulk of her application sought a reconsideration of the merits of her visa application which, as stated earlier in these reasons, the Court is not empowered to perform.  The remainder of the application made un-particularised allegations of legal error which, because they were un-particularised, lacked meaningful substance and so disclosed no basis upon which the Tribunal’s decision should be set aside. 

4. In the discharge of his duty as a model litigant, the Minister suggested that grounds 4 and 8 of the application raised an arguable point concerning whether the Tribunal erred in applying s.416 of the Act. In this regard, the Minister submitted:

   The Minister recognises that it is at least arguable that, by applying the reasoning of SZGIZ with respect to s.48A of the Act, the second application was not a “further application” within the meaning of s.416 of the Act, as it did not go to the same criteria for a protection visa as the first application. Under this approach, s.416 of the Act did not apply in the present case.

5. Section 416 of the Act provided:

   416 Only new information to be considered in later applications for review

   If a non‑citizen who has made:

   (a) an application for review of an RRT‑reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

   (b) applications for reviews of RRT‑reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

   makes a further application for review of an RRT‑reviewable decision, the Tribunal, in considering the further application:

   (c) is not required to consider any information considered in the earlier application or an earlier application; and

   (d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.

6. Although, as the Tribunal said, claims to fear religious persecution were not “pursued” before it by the applicant, they were nonetheless repeated.  “Pursued” can be understood in context to mean “actively pursued”.  A claim which might be made but is not made by a professionally represented applicant may be considered to be not pressed.  However, any claim which is actually mentioned as the basis of a claimed fear of harm, even if not actively pursued, must be considered by the Tribunal whether or not the applicant is represented.  Therefore, to the extent that the applicant claimed an entitlement to protection based on a fear of religious persecution, in circumstances where she adduced no evidence to support such a claim the Tribunal had to consider it but was entitled to decide the claim by reference to information previously advanced on that question. 

7. As the applicant did not, in terms, seek a further review of the original delegate’s decision of 3 December 2009, the Tribunal was not entitled to rely on s.416 instead of reaching its own decision on the review. However, it did not do that. It undertook its own consideration, saying at para.35 of its reasons:

   This Tribunal considers there was nothing about the applicant’s evidence before it which would lead the Tribunal to conclude the reasoning and findings by the previous Tribunal … were erroneous in law or in any other way wrong or flawed. In accordance with section 416 of the Act the Tribunal takes to be correct the findings of the previously constituted Tribunal and will not reconsider the information found not credible. Regarding the matters directly raised in the applicant’s previous application before the previous Tribunal, there is no credible matter which would lead to a risk of harm, including significant harm, to the applicant.

8. In light of the Tribunal’s statement in that paragraph, I am not persuaded that grounds 4 and 8, if they were referring to the Tribunal’s reliance on s.416, would justify a finding that the Tribunal had not considered the submissions made by the applicant. Therefore those grounds would not form the basis of an order setting aside the Tribunal’s decision.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

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

Associate: 

Date: 19 August 2015