SZVFZ v Minister for Immigration

[2015] FCCA 347

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVFZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 347

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Legislation: 
Migration Act 1958 (Cth)

Minister for Immigration and Border Protection v Singh and Another (2014) 308 ALR 280; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2

Applicant: SZVFZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2788 of 2014

Judgment of: Judge Barnes

Hearing date: 3 February 2015

Delivered at: Sydney

Delivered on: 3 February 2015

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Ms Francois

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Leave be granted to the Applicant to rely on Grounds One and Two in the Draft Amended Application filed on 19 January 2015.

2. The Application is dismissed.  

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.  

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2788 of 2014

SZVFZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 30 August 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant or the primary applicant protection visas.

2. The Applicant is a citizen of the People’s Republic of China who arrived in Australia in mid-2012.  He did not lodge his own claim for a protection visa but was included in an application lodged by the primary applicant in November 2013 as a member of her family unit.

3. The primary applicant attended an interview with the delegate.  In a decision of 9 April 2014 the delegate refused the application for the visas in circumstances where the delegate was not satisfied that the Applicant was a member of her family unit.

4. The delegate recorded that the Applicant had not advanced any claims for protection on his own behalf. 

5. The Applicants both sought review by the Tribunal.  The Tribunal wrote to them and invited them to provide any further information, material and submissions.  The Applicant did not provide further information. 

6. On 13 June 2014 the Tribunal wrote to the primary applicant and the Applicant, inviting them to attend the Tribunal hearing on 28 August 2014.  Both applicants attended the Tribunal hearing.  The only evidence before the Court as to what occurred in that hearing is the Tribunal’s account in its reasons for decision.

7. The Tribunal set out the primary applicant’s claims.  Its findings in that respect are not of direct relevance in these proceedings.  The primary applicant is not a party to these proceedings.  Despite expressing some concerns, the Tribunal nonetheless was satisfied on balance that the applicants were in a de facto relationship and were members of the same family unit.  However it was not satisfied that the primary applicant’s protection claims were made out. 

8. The Tribunal recorded that in addition to his claims as a member of the primary applicant’s family the Applicant claimed that he feared returning to China because he was Catholic and “the Chinese government destroys all the Catholic buildings”. 

9. It recorded that the Applicant’s evidence was that he did not know how long he had been Catholic, but thought it was approximately 10 years.  It found that he knew very little about the Catholic faith and could not say what he knew.  He practised the Catholic faith at Villawood but told the Tribunal that he had not practised it anywhere else.  His evidence was that Catholicism at Villawood was all in English, which he did not understand.  However he claimed the Catholic faith was important to him because he believed in it.

10. As indicated, the Tribunal accepted that the Applicant was a member of the primary applicant’s family unit, but was not satisfied that there was a real risk that the primary applicant would be subjected to significant harm entitling her to protection under the complementary protection criterion in circumstances where she had previously had her application for protection on the basis of the Refugees Convention considered but dismissed.

11. The Tribunal found that the Applicant was not entitled to protection as a member of the primary applicant’s family unit.  However it also considered the Applicant’s claim to fear harm on the basis that he was Catholic. 

12. The Tribunal observed that the Applicant could not provide any information about the Catholic faith and that he made no claim to have practised the Catholic faith outside of the Villawood Detention Centre and that he could not say how he practised the Catholic faith in Villawood “because it is in English”.

13. The Tribunal found that this response indicated that although the Applicant may have observed a Catholic service at the detention centre, he did not participate in it or understand it to any level that enabled him to relate anything about it.

14. The Tribunal recorded that it put to the Applicant that it had concerns about the credibility of his claim to be Catholic in view of his lack of knowledge and practice of Catholicism and that he did not give a responsive answer. 

15. The Tribunal found that given that the Applicant could demonstrate no knowledge of the Catholic faith and no real practice of the Catholic faith, it did not accept his claim to be Catholic.  It did not accept that the Applicant had any genuine interest in the Catholic faith.

16. The Tribunal noted that the Applicant had not put forward any other claim or reason to fear harm in China and found that there was no evidence before it that he would face any harm on return to China.  It considered his claim that he wished to divorce his wife and marry the primary applicant, but found there was nothing about this situation that would give rise to any fear of harm in China and nor did the Applicant make such a claim.

17. The Tribunal was not satisfied that there was a real chance that the Applicant would be seriously harmed or a real risk that he would be subjected to significant harm and found that he did not meet either the Refugees Convention criterion or the complementary protection criterion.  As he did not meet the criteria for a protection visa as a primary applicant or a secondary applicant, the decision of the delegate was affirmed by the Tribunal.

18. The Applicant sought review by application filed in this Court on 7 October 2014.  The primary applicant is not a party to these proceedings.  On 19 January 2015, he filed written submissions and a draft amended application.  That draft amended application contains three grounds, two of which relate to the Tribunal decision.  I gave the Applicant leave to rely on grounds 1 and 2 in the draft amended application.  These are, in effect, particulars to the grounds in his original application.  I did not require him to file or refile the draft amended application, which seeks orders that relate only to proposed ground 3.  In that proposed ground he asserted for the first time that the Minister and also the Secretary of the Department of Immigration and Border Protection (who is not a party to these proceedings) had erred “by failing to ensure that the applicant’s claims for protection arising from the breach of [his] personal information” had been “considered in conformity with the law”.  This claim did not relate to the Tribunal decision. 

19. According to the Applicant’s written submissions (also filed on 19 January 2015) on 12 March 2014 he was notified by the Department of Immigration that some of his personal information had been inadvertently released by the Department on its website.  However there was no evidence before the Court in this respect and no indication in the material before the Court that any such issue was raised with the delegate or the Tribunal. 

20. While the Applicant’s submissions asserted such a breach of privacy and made other assertions about subsequent events, there was no evidence before the Court to support such claims.  This issue was raised for the first time in January 2015.  Counsel for the Minister assured the Court that if the Applicant sought to raise such a matter in separate proceedings against the appropriate parties, then no issue would be taken with the fact that the matter had not been raised and considered in these proceedings.  The Applicant was not given leave to raise proposed ground 3 in these proceedings. 

21. However as discussed below, Counsel for the Minister addressed any issues raised by the alleged disclosure of personal information in relation to the Tribunal’s decision and I have considered such issues. 

22. I gave the Applicant the opportunity to expand on the written submissions in relation to Grounds 1 and 2.  At first he indicated that he had nothing to add, but then claimed that he was Catholic and if the Tribunal chose not to believe him, that was their problem.  He made claims about his involvement in Catholicism in China.  He acknowledged that he had been asked questions about his Catholic beliefs by the Tribunal but had failed to answer them.  He appeared to take issue with the Tribunal’s decision in relation to his Catholicism on the basis that he had only referred to those with whom he gathered in China.

23. Insofar as the Applicant might be seen to be raising some issue that the Tribunal had taken on the role of arbiter of doctrine with respect to religion, this is not a case which raises such an issue (see WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 per Mansfield, Jacobson and Siopis JJ at [28]). It is, of course, open to the Tribunal to explore a person’s religion to determine whether a claim based on religion is genuine. This is not a case where the Tribunal took a different view of the knowledge of doctrine that a person of particular faith ought to have. Rather, the Applicant did not provide any information about his beliefs or Catholic faith. Insofar as his remarks in oral submissions go beyond the written grounds, they do not establish jurisdictional error, but seek merits review.

24. The first ground is that the Tribunal “made a legal error by asking the wrong question”.  The particulars refer to the findings of the Tribunal and claim that the “Tribunal erred by failing to consider the risk of harm to the applicant due to his status as a Catholic”, that it “erred insofar that it considered [his] risk of harm by reference to his interest in Catholicism and his level of knowledge”, and that it “erred by failing to consider the risk of harm to the applicant due to his identification as an adherent of the Catholic faith”.  

25. The Applicant’s written submissions repeated these claims and suggested that by focusing on the Applicant’s level of knowledge and understanding of the Catholic faith, the Tribunal failed to consider whether there was a real risk of harm to him due to his “imputed” faith.  It was submitted that while the Tribunal was correct in its summation of the Applicant’s limited understanding and knowledge of Catholicism, this was commensurate with his lack of opportunity to practise his faith.  It also seems to be intended to state that there was a failure to consider the risks the Applicant faced upon return to China. 

26. This ground of review involves a contention that the Applicant (or the material before the Tribunal) raised a claim that he would be imputed to be a Catholic. 

27. However, there is nothing in the material before the Court to indicate that the Applicant made such a claim.  The only claims made by the Applicant in this respect were made at the Tribunal hearing.  The Tribunal’s account is the only evidence before the Court of what occurred at the Tribunal hearing.  According to the Tribunal the Applicant claimed that he was a Catholic, not that he would be imputed to be a Catholic.  The Tribunal understood he claimed he thought he had been a Catholic for approximately ten years but found that he could demonstrate no knowledge and no real practice of the Catholic faith.  Nothing was pointed to in the material before the Tribunal and nor is there anything apparent that clearly or squarely raised a claim to fear harm as an “imputed” Catholic in the manner considered by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.

28. The Tribunal set out its understanding of the Applicant’s claim in its findings and reasons, consistent with the claims that it recorded were made by the Applicant at the Tribunal hearing.  It addressed such claims.  It has not been established that the Tribunal made a legal error by asking the wrong question in the manner contended for in Ground 1.

29. Ground 2 is that the “Tribunal made a legal error by making an unreasonable decision”.  The particulars to this ground are that “it failed to consider relevant material insofar that it failed to consider and apply the Guidance on the Assessment of Credibility” and relevant country information, (as was said to be required under “Guidance 8.1”).  It was also contended that the Tribunal erred “in failing to consider the applicant’s claims with respect to the situation of Catholics in China”.  It was said that the Tribunal considered “the credibility of the applicant’s claim to a false standard” and that it “condemned the applicant’s credibility with reference to a materially false understanding of the situation of Catholics in China”.

30. The Applicant’s written submissions extract what is said to be “Guidance 8.1” from the “Guidance on the Assessment of Credibility”.  This Document is not otherwise before the Court.  It is quoted in the submissions as follows:

    The tribunal will have due regard to information which assists the tribunal to reach the correct or preferable decision, including expert evidence, information about conditions and laws in an applicant’s country of origin and other relevant sources of information.

31. The Applicant submitted that in failing to consider information about conditions in China, the Tribunal did not consider his credibility and “in particular in respect to his limited knowledge of Catholicism in the context of his personal circumstances” and that in proceeding in this way and not considering difficulties facing Chinese Catholics, the Tribunal applied a standard of knowledge that was unreasonable. 

32. It was also submitted that the Tribunal based its determination of the Applicant’s claim on a “false factual premise”, in that “his credibility was determined with reference to [the] false premise” that he would have the same opportunity to practise his faith as the general population and would have a corresponding level of knowledge and practice. 

33. This ground is not made out.  Insofar as it was submitted that the Tribunal was under an obligation to consider the guidance note, even if that were the case, guidance note 8.1 does not impose an obligation on the Tribunal to consider country information in all cases.  Rather, it obliges the Tribunal to have due regard to information which assists the Tribunal to reach the correct or preferable decision.  This is not an obligation to address independent country information in all circumstances or even in circumstances in which the credibility of an applicant’s claims is rejected.

34. In this case the Tribunal’s findings in relation to credibility were reached on the basis of the fact that the Applicant could demonstrate no knowledge of the Catholic faith and no real practice of the Catholic faith.  Such findings were open to it on the material before it for the reasons which it gave. 

35. There is nothing in the material before the Court to indicate that the Applicant sought to explain his complete lack of knowledge of the Catholic faith on the basis of his circumstances in China.  As set out above, at the Tribunal hearing he claimed he had practised the Catholic faith at Villawood and that had not practised it anywhere else.  He conceded he knew very little about it and could not say what he knew.  It has not been established that the Tribunal applied a false standard, let alone that the manner in which it proceeded involved unreasonableness demonstrating jurisdictional error.  It did not accept that the Applicant was a Catholic.  In these circumstances the Tribunal did not err in failing to refer to independent country information about the situation for Catholics in China. 

36. Nor has it been established that the Tribunal assessed the credibility of the Applicant’s claims to a false standard.  Insofar as it was contended that the Tribunal had regard to a false understanding of the situation of Catholics in China, this aspect of the Applicant’s claim appears to take issue with the merits of the Tribunal’s credibility finding.  As pointed out by the First Respondent in submissions, insofar as this is a contention that the Applicant could be a Catholic although he had no knowledge of its tenets because he had not been given the opportunity to understand them, there is no evidence that he made such a claim in relation to his circumstances in China or Australia, except that he claimed that the Catholic services at Villawood were being conducted in English.  The Tribunal considered such claim, finding that it indicated that although the Applicant may have observed a Catholic service in Villawood at the detention centre, he did not participate or understand it to any level that enabled him to relate anything about it.  It went on to assess the Applicant’s claims to have been a Catholic for some 10 years in light of his complete lack of knowledge or, on his own evidence, practice of Catholicism. 

37. There is nothing to indicate that the Applicant raised a claim (as is now raised in the written submissions), that although he had no knowledge, that was because he had not been given the opportunity to acquire any knowledge.  There is nothing in the material before the Court to raise any concern about the reasonableness of the Tribunal decision.  This is not a case in which “the court cannot identify how the decision was arrived at” (Minister for Immigration and Border Protection v Singh and Another (2014) 308 ALR 280; [2014] FCAFC 1 at [44]), or where it can be said that the decision lacked “an evident and intelligible justification” (Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18 at [76]). Nor is it a case in which the decision could not have been reached on the material before the Tribunal.

38. Insofar as the Applicant seeks to raise fresh claims, these were not claims which were raised before the Tribunal and do not establish jurisdictional error.

39. As indicated, the Applicant was not given leave to raise the separate issue of a claim against the Minister and Secretary of the Department of Immigration arising from an alleged “breach of [his] personal information” in these proceedings.  However I am satisfied that, as submitted by the First Respondent, no jurisdictional error arising out of the claims in this respect now made by the Applicant is established on the part of the Tribunal.

40. There is no evidence to suggest that prior to the proposed amended application that was filed on 19 January 2015, the Applicant had ever made any sur place claim with respect to what he claims was a data release in relation to his details in February 2014.  Nor is there any evidence that he raised any concerns about the effect of any such disclosure during the Tribunal hearing.  There is nothing in the material before the Tribunal to raise such a claim clearly or squarely in the manner considered in NABE at [58].

1. In these circumstances, the issues now raised by the Applicant in written submissions, taken at their highest, are not such as to identify jurisdictional error on the part of the Tribunal in failing to address such an issue. 

2. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

RECORDED:  NOT TRANSCRIBED

1. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $6,646.  The Applicant indicated that he had no money.  However, the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent.  Nor in this case is it a reason for reducing the costs.  The amount sought is reasonable and appropriate in the circumstances of this case although the Applicant’s lack of funds may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  18 February 2015