SZVKM v Minister for Immigration

[2015] FCCA 3020

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVKM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3020

Catchwords:
MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZVKM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3043 of 2014

Judgment of: Judge Driver

Hearing date: 10 November 2015

Delivered at: Sydney

Delivered on: 10 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3043 of 2014

SZVKM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 8 October 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from China and had made claims of persecution based upon his asserted Christian faith.  The applicant applied for the visa on 26 September 2013.  A delegate of the Minister refused that application on 14 March 2014.  The applicant sought review before the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing.  The applicant appeared before the Tribunal on 24 September 2014 to give evidence and to present arguments.  He was assisted by a Mandarin interpreter. 

3. It is apparent from the Tribunal decision record that the Tribunal entertained credibility concerns about the applicant’s claims of his experiences in China, which were addressed in some detail at the hearing.  In its decision the Tribunal found that the applicant was not a witness of truth.  The Tribunal did not accept the applicant’s claims concerning his attendance at a family church in China from a young age.  The Tribunal did not accept that the applicant had been arrested twice or that any other member of his family was arrested because of their religion.  The Tribunal did not accept that the applicant kept in contact with any church in China while he had been in Australia.  The Tribunal did not accept that the applicant genuinely fears returning to China due to his religious beliefs or practices. 

4. In its reasons, the Tribunal identified seven credibility concerns.  The first concerned his inconsistent statements about his relationship with his wife.  The second concerned the applicant’s inconsistent statements about the persecution he said he suffered in China.  The third concerned the applicant’s inconsistent statements about when he started attending church in China.  The fourth was a similar concern.  The Tribunal’s fifth concern was an inconsistent statement about the applicant’s favourite part of the Bible.  The sixth was an inconsistent statement, as between the applicant and his wife, about her faith.  The seventh was the Tribunal’s concern about the applicant’s delay in seeking protection.  The applicant had arrived in Australia as a student on 12 December 2007 but had waited approximately six years before seeding protection. 

5. The Tribunal concluded that the applicant would not come to any harm in China because of his asserted religious faith which was not accepted.  The applicant also asserted to the Tribunal that he would not be able to survive in China and referred to his long absence and limited education.  The Tribunal rejected that claim and in doing so referred to the applicant’s employment history in Australia. 

6. The Tribunal concluded that the applicant had no claim to protection in Australia either as a refugee or under the complementary protection criterion. 

7. These proceedings began with a show cause application, filed on 3 November 2014.  There are two grounds in the application:

   1. Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing.

   2. I don’t think RRT [decision] is fair and reasonable as they fail to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

   (errors in original)

8. The applicant has not taken up the opportunity I afforded him in directions made on 26 November 2014 to file an amended application for further evidence.  The application is supported by a short affidavit filed with it. 

9. I also received as evidence the book of relevant documents filed on 21 November 2014. 

10. Neither the applicant nor the Minister filed written submissions for today’s hearing.  Both the applicant and the Minister’s solicitor made short oral submissions. 

11. The applicant declined the opportunity I afforded to him to expand upon the claims in his application.  He did, however, read a short written statement in which he asserted that the process before the Tribunal was unfair due to bias.  I sought further details from the applicant but he declined to give any.  I suggested to him that he might be concerned about the outcome of the review before the Tribunal and the fact that he was not believed.  He agreed.

12. As I explained to the applicant, the Tribunal was under a statutory obligation to review the delegate’s decision.  The fact that the applicant was invited to attend a hearing before the Tribunal should have indicated that the Tribunal entertained some concerns about his claims.  It was necessary for the Tribunal to identify at the hearing the likely issues upon which the review would turn.  I am satisfied that the Tribunal did so.

13. It is sometimes necessary for the Tribunal to test claims vigorously.  The only record before me of what occurred at the Tribunal hearing is what is set out in the Tribunal’s decision record.  There is nothing in that decision record to suggest any bias on the part of the presiding member.  I am satisfied that there is no substance to the applicant’s assertion of bias.  Neither does it appear to me from my perusal of the available material that any other assertion of jurisdictional error is available to the applicant.

14. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  The applicant did not wish to be heard on costs.

16. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  12 November 2015