SZVRX v Minister for Immigration

[2016] FCCA 3516

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3516

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether Tribunal erred in making adverse credibility findings – whether Tribunal made illogical or unreasonable findings – no arguable relief claimed – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118
SZTTW v Ministerfor Immigration & Border Protection [2014] FCA 837

Other materials:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967)

Applicant: SZVRX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3244 of 2014

Judgment of: Judge Smith

Hearing date: 13 April 2016

Date of Last Submission: 13 April 2016

Delivered at: Sydney

Delivered on: 13 April 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Lucchese, Sparke Helmore

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.

3. The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3244 of 2014

SZVRX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for an order that the respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal[1] made on 28 October 2014.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia in December 2007 on a student visa and applied for a protection visa on 21 October 2013. That application was based upon the applicant’s claim to be a Christian and to have suffered harm in China for that reason. The claims were set out in a statement which accompanied the protection visa application and are summarised accurately in [3]-[4] of the first respondent’s written submissions which I set out below:

   3The applicant claimed to fear harm because of his Christianity and membership of the Local Church. The applicant claimed to have grown up in a Christian environment. In a statement accompanying the application for a protection visa, the applicant made the following factual claims:

   3.1 In middle school, the applicant and his brother were arrested by the local government after following their grandfather on a mission tour. They escaped, but were detained for two days after returning to free their grandfather, were put on a “police blacklist” and suspended from class.

   3.2 In high school, the applicant was arrested for distributing gospel leaflets. He was forced to change schools and his parents made arrangements for him to study abroad.

   3.3 In April 2011, the applicant visited China, taking with him material about the Local Church which he left with his brother. In 2012, the applicant learned that his brother was arrested and investigated by police who discovered some of the material. The applicant’s brother lost his job and fled to Shenzhen.

   3.4 In 2013, the applicant’s brother attended a church service where all the people present were detained. The applicant’s brother was investigated for three days and required to pay a fine.

   4In the statement submitted with his visa application, the applicant claimed that he was unable to find a Local Church in Australia and that he hoped to establish Local Church gatherings with some of his countrymen. However, at the Tribunal hearing, the applicant claimed that he had been attending a Local Church in Australia since October 2013 and was baptised in May 2014.

   (Emphasis in original)

3. On 17 March 2014 a delegate of the Minister made the decision to refuse to grant the applicant a visa.  The delegate did not accept that the applicant was a genuine Christian either at the time of the decision or when he was in China and found that there was no basis in the evidence for finding the applicant would face any harm in China.  The applicant applied to the Tribunal for review of that decision.  He was invited to attend a hearing on 22 September 2014 and he did so. 

4. At the hearing, the applicant told the Tribunal that the police in China believed that he had brought certain church information to his brother in China, that his brother was arrested in 2012 and the police found a CD and gospel information.  He told the Tribunal that he believed his brother probably told them that it was the applicant who had brought the material to China.  He also told the Tribunal that he had been attending a local church in Sydney since October 2013 and was baptised in that church in May 2014.  He submitted a number of documents in support of those claims including a letter dated 9 September 2014 from the local church in Sydney and photographs of what appears to be a baptism.

5. The Tribunal made its decision on 28 October 2014 affirming the delegate’s decision.  Like the delegate before it, the Tribunal did not believe the applicant and it gave five considered reasons for its conclusion about his credibility.  Those reasons were, in summary:

   a)first, that he had given different dates about the arrest of his brother, in 2012 or 2013, and had failed to refer to it earlier;

   b)secondly, the applicant’s evidence that he was on a police blacklist was inconsistent with the fact that he had left China using his own name and passport and later, in 2011, visited China on his own passport in his own name;

   c)thirdly, his evidence was that he had not been able to locate a local church in Australia until October 2013. The Tribunal did not accept that the applicant was, in fact, looking and failed to find any information about local churches in Australia prior to that time;

   d)fourthly, there was a significant delay between the time of the applicant’s arrival in Australia in December 2007 and the application for a protection visa in October 2013 and the Tribunal did not accept the applicant’s explanation for that delay; and

   e)fifthly, given that the applicant had only been baptised very recently, after the delegate’s decision, and had only recently started attending the local church in Australia after another migration case was resolved against him, the Tribunal was concerned that those activities were only engaged in to strengthen his claims to be a refugee.

6. In light of those concerns, the Tribunal did not accept that the applicant was a witness of truth and found that he had not told the truth about the critical elements of his claim.  For those reasons, the Tribunal found that the applicant had no well-founded fear of persecution in China for any Convention[2] reason and did not satisfy the criterion in sub-s.36(2)(a) of the Act.  For the same reasons, the Tribunal was “not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm” and concluded that he did not satisfy the criterion in sub-s.36(2)(aa) for a protection visa. For those reasons, the Tribunal affirmed the decision of the delegate.

   [2] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).

7. As I mentioned, this is an application for an order that the respondent show cause why a remedy should not be granted by the Court in respect of the Tribunal’s decision. Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) provides:

   (1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

8. The power of the Court under r.44.12 is a form of summary dismissal. As such, it is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: see Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24].

9. The power in sub-r.44.12(1)(a) has two components.  The first is a lack of satisfaction that an applicant has raised an arguable case for the relief claimed and the second is a residual discretion whether or not to dismiss the application:  see SZTTW v Ministerfor Immigration & Border Protection [2014] FCA 837 at [20]. Although the form of r.44.12 focuses attention upon the application, namely, the document as filed by the applicant and any affidavit in support, and the applicant is limited to relying upon those matters, the Court may nevertheless have regard to issues outside that application if it is in the interests of justice. That would either be in the exercise of discretion or on the basis that the provision limiting the applicant in r.44.13 is not to be applied. I turn then to the grounds in the application.

10. The application has an attachment which has two parts.  The first is under the heading “Orders sought by Applicant” and the second under the heading “The Grounds of the Application are”.  Under that second heading, where one might expect to find the grounds for review of the Tribunal’s decision, there are only assertions of fact made by the applicant which might, if accepted, establish that the applicant is a refugee.  However, such determinations are beyond the jurisdiction of this Court and so I leave those three paragraphs under that heading to one side.

11. Under the heading “Orders Sought by Applicant” the first ground[3] states:

    I don’t think the decision made by DIBP and RRT is fair for me as my religious background and hard experience and fears of no return are unreasonably and carefully considered.

    (Without alteration)

    [3] I will refer to, and address, each paragraph under the “Orders sought by Applicant” heading as “grounds” of the application hereafter.

12. At the hearing today the applicant made oral submissions which appeared to address this ground.  He said that the Tribunal did not assess his case fairly and “did not consider the danger I may face if I return to China”.  The difficulty with the ground is, as I have set out above, the Tribunal rejected each of the applicant’s critical claims.  It gave detailed reasons for those rejections, each of which was based upon the applicant’s own evidence, as well as consideration of country information that was before the Tribunal.  That is to say, that those reasons were open on the material before the Tribunal in the sense that they each had a logical basis.

13. Further, as I have noted, the applicant was invited to, and did attend, a hearing before the Tribunal on 22 September 2014.  It is evident from the Tribunal’s findings and reasons that the applicant was put on notice by the Tribunal of its concerns in respect of his claims and credibility.  In those circumstances, I cannot see that there was anything unfair about the procedure adopted by the Tribunal and it is clear that the Tribunal, in fact, engaged with and carefully considered each of the applicant’s claims.

14. In light of that, it seems to me that the first ground in the application is no more than a complaint that the Tribunal should have made a finding on the basis that it accepted the applicant’s claims.  That is a matter that is beyond the jurisdiction of this Court.  It goes only to the merits of the findings made by the Tribunal rather than to their legality and, for that reason, the first ground does not contain any reasonably arguable basis for the relief sought.

15. The second ground is:

    RRT’s decision on judgment of my credibility is wrong and I am innocent of the result.  RRT’s false assessment of such in terms of item 8,9 and 10 on page 4 of decision presented a typical examples in failure.

    (Without alteration)

16. At [8]-[10] of the Tribunal’s decision it stated:

    8.First, during the hearing the tribunal noted that the written statement claimed that on Easter Day in 2013 the applicant’s brother returned to his hometown to attend a church service and all the people present were detained and his brother was under investigation for three days and made to pay a fine. Yet when asked if anything had happened to his family members since the applicants return to Australia in 2011, the applicant told the tribunal his brother had been arrested for a month in 2012, but failed to mention what happened to his brother in 2013. The tribunal raised its concern that the applicant had failed to mention what happened to his brother in 2013 in his oral evidence. In response the applicant told the tribunal he just wrote down what he could remember when he prepared the written statement and he told the tribunal what he could remember and he was nervous and he thinks it’s normal that he does not remember everything. While the tribunal accepts that memory can be affected by the passage of time and by nerves while giving evidence at a hearing, and it does not expect an exact recitation of a written statement in oral evidence, the tribunal does not accept these are the reasons why the applicant failed to mention such a significant incident. The tribunal considered the applicant’s failure to refer to his brother’s detention while attending a church service in China in 2013 in his oral evidence raises significant concerns about the applicant’s credibility as a witness and the reliability of his evidence and claims.

    9. Second, during the hearing the applicant told the tribunal that when he was initially detained with his brother and grandfather on the mission tour, he was put on a police black list. The applicant also told the tribunal he later left China using his own name and passport and in 2011 visited China using his own passport and his own name. The tribunal raised its concern about the claim that the applicant was on a police black list yet was able to travel in and out of China using his own passport and name. In response the applicant told the tribunal the police told him he was on a black list. Country information indicates that “alert lists are connected to Chinese identity cards as well as passports” and that “alert lists operate at railway stations as well as airports and border crossings”. The tribunal is concerned about the plausibility of the claim that the applicant was on a police black list and still able to leave China and then return and leave again using his own name and passport.

    10.Third, during the hearing the applicant told the tribunal he had not been able to locate a Local Church in Australia until October 2013. The tribunal raised its concerns about the plausibility of the claim that the applicant had arrived in Australia in 2007 yet did not find a Local Church in Australia until October 2013. The tribunal noted that the applicant had told the tribunal he had found information and material about the Local Church on Australian websites which he took back to China in 2011, yet failed to find any information about the location of Local Churches in Australia. Given the tribunal’s other credibility concerns, the tribunal does not accept that the applicant was looking and failed to find any information about the location of Local Churches in Australia prior to October 2013. The tribunal considers the applicant’s failure to attend a Local Church in Australia prior to October 2013 reflects poorly on his credibility and his claim to be an adherent of the Local Church.

    (Footnotes omitted, emphasis in original)

17. Once again, the difficulty with this ground is that it only goes to the merits of the Tribunal’s decision rather than to its legality.  As I have said, in my view, the reasons given by the Tribunal for its findings, including those set out at [8]-[10], had a logical basis in the material and were reasonably open to it.  For that reason, ground 2 does not raise any arguable basis for the relief sought.

1. Ground 3 is as follows:

   RRT failed to understand my explanation and account on why my application for protection comes late as I am initially came to Australia is merely for study instead of lodging a protection visa.  The incident happened prior to my submission for protection made me a real concerned to return and it is such change in my life triggering my initiative seeking for protection visa.  So RRT’s attitude towards this issue is relatively abusive.

   (Without alteration)

2. The Tribunal’s reasoning in this respect is at [11]-[12] of its decision:

   11. Fourth, as noted in the decision record and discussed with the applicant during the hearing, the applicant arrived in Australia in December 2007 and did not make the protection visa application until 21 October 2013. The tribunal raised is concerns that the applicant did not make his protection visa application until nearly six years after he arrived in Australia. The applicant told the tribunal the purpose of coming to Australia was to study, and he did not know he could apply for a protection visa. The tribunal also raised its concerns that, as noted in the decision record, the applicant had made a number of student visa applications in 2011, the last application was refused in June 2012 and the applicant then pursued an application for review to the Migration Review Tribunal in July 2012 which was refused in September 2013, prior to making his protection visa application. The applicant told the tribunal he came to Australia to study and somehow his visa got cancelled and when he visited China his brother told him the police were investigating the material and he is concerned if he goes back he will be arrested, so he went to a migration agent who advised he could apply for a protection visa. On questioning, the applicant told the tribunal his brother told him about the police investigation in 2012, just after his student visa was cancelled, and when he was about to return to China his brother told him he can’t go back because the police were trying to investigate the applicant. When questioned why the applicant waited until October 2013 to lodge his protection visa application the applicant told the tribunal he still had a student visa until 2013, and when he didn’t have a student visa, his brother told him he can’t go back to China. When the tribunal noted the applicant’s oral evidence was different from his earlier oral evidence, that in 2012, just after his student visa was cancelled, his brother told him he can’t go back. In response the applicant told the tribunal in 2012 he still held a student visa and still planned to study and had not planned to go back at that time, and he ran out of his student visa in 2013 and could not continue to study, and if he goes back he would not have his religion and the police will arrest him and he will probably be persecuted.

   12. The tribunal is concerned that the applicant changed his oral evidence about when his brother told him he couldn’t return to China; first he told the tribunal it was in 2012 and later he told the tribunal it was in 2013. The tribunal notes the decision record indicates the applicant’s last student visa application was refused in June 2012. The tribunal does to accept the applicant’s explanation about why he waited until October 2013 to make his protection visa application. The tribunal considers the change in the applicant’s oral evidence reflects poorly on his credibility as a witness and his delay in making the protection visa application indicates he did not and does not hold any genuine fears about returning to China.

   (Without alteration, emphasis in original)

1. The Tribunal did not accept the applicant’s explanation for the delay because the applicant’s oral evidence was different from his earlier oral evidence that in 2012 just after his student visa was cancelled, his brother told him he cannot go back.  The Tribunal found that the change in the applicant’s oral evidence reflected poorly on his credibility and found that the delay in making the protection visa application indicated he “did not and does not hold any genuine fears about returning to China”. Ground 3 in the application is an assertion that the Tribunal was wrong in that conclusion and once again, this is simply an attack on the merits of the decision and raises no reasonably arguable basis for relief.

2. Ground 4 is that:

   RRT’s country information may not be relevant in my case.  I am sure will always be in danger if I insist my religion and practice with underground church of local church in China, even though I have not been listed on government’s blacklist.  The point is my enthusiasm of my faith instead of whether or not I am on blacklist.  RRT’s ground in this issue tends to be weak, unpersuasive and unsupportive.

   (Without alteration)

3. At the heart of this ground is the contention that the applicant will practise his religion in the underground church in China if he were to return there.  The Tribunal rejected that claim and in light of that rejection this ground once again raises only the merits of the decision and does not provide an arguable basis for the relief sought by the applicant.

1. The fifth ground is that:

   RRT failed to judge me, as committed Christian on necessary knowledge and expression in relation to my church background, knowledge and convictions on faith and this is unfair, incomprehensive and reckless against hearing procure I believe.

   (Without alteration)

2. As with ground 4, this ground appears simply to be based upon an assertion that the applicant is a Christian.  That may well be the case but it is not a matter for me to decide.  The Tribunal rejected the claim for the reasons I have set out above and it was open for it to do so.

3. To the extent that this ground suggests that the procedure adopted by the Tribunal was unfair because it failed to test the applicant’s knowledge and convictions on his faith, it must be rejected for want of evidence. It is clear from the Tribunal’s reasons for decision that it raised a number of matters concerning the applicant’s credit with him and gave him the opportunity to respond to those concerns.  If the applicant wanted to give evidence to the Tribunal supporting his knowledge about Christianity, then it was open for him to do so.  Indeed, the Tribunal appears to have accepted, (at [14]), that the applicant did have some knowledge of the local church.  It noted however, that that knowledge could have been obtained from any number of sources and did not accept that the knowledge was gained from a religious childhood or ongoing religious practices.

4. Ground 5 does not raise any reasonably arguable basis for the relief sought.

5. Ground 6 is that:

   The RRT ignored the writing evidence provided by my church elder in Australia to witness my faithful stand, and passion in spreading gospel.  This is an utmost regret and miscarriage in hearing.

   (Without alteration)

6. This ground cannot be sustained in light of [15] of the Tribunal’s decision in which it expressly refers to, and considers the document.  In my view it is simply not arguable that the Tribunal either overlooked or failed to engage with that information.

7. The final ground provides:

   RTT offered me no chance to demonstrate my understanding of Local Church and chance to common off hearing.

   (Without alteration)

8. This ground is, in effect, the same as ground 5 and I refer to my reasons in respect of that ground.

9. For those reasons I am not satisfied that the application has raised an arguable case for the relief claimed.  Further, having closely read all the material in Exhibit A and the Tribunal’s reasons, I am not satisfied that there is any other arguable basis for the relief sought by the applicant.

Conclusion

1. For those reasons, in my view, it is in the interests of the administration of justice that the application be dismissed and I order that the application be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       11 December 2018