SZVTH v Minister for Immigration

[2017] FCCA 1716

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVTH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1716

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the Tribunal’s reasons reflect a genuine engagement with the applicant’s claims and evidence – the adverse findings made by the Tribunal were open – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: SZVTH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3348 of 2014

Judgment of: Judge Street

Hearing date: 24 July 2017

Date of Last Submission: 24 July 2017

Delivered at: Sydney

Delivered on: 24 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr T Galvin
Minter Ellison

ORDERS

1. Leave to the first respondent to file in Court the affidavit of Trent Lloyd Jones dated 24 July 2017.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3348 of 2014

SZVTH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) with respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 November 2014 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. On 12 May 2008, the applicant applied for a subclass TU-571 Schools Sector (Student) visa, which was refused on 16 August 2008. The applicant then travelled to the United Kingdom between 28 August 2009 and 7 April 2010 on a Student visa. 

3. On 4 March 2010, the applicant applied for a subclass TU-676 Tourist visa from the Department’s office in London. On 15 March 2010, the applicant was granted a Tourist visa which was valid for two months after the date of the applicant’s arrival. 

4. The applicant arrived in Australia on the Tourist visa on 7 April 2010.  The applicant’s Tourist visa remained in effect until 7 June 2010. From 8 June 2010, the applicant became an unlawful non-citizen in Australia and the applicant remained unlawfully in the country until lodging an application for protection on 21 June 2013.

5. On 28 February 2014, the delegate refused to grant the applicant a protection visa. The delegate made adverse credibility findings in relation to the applicant and the applicant’s claim to fear harm from the Chinese government by reason of his Catholic beliefs and conduct both in Australia and China.

The Tribunal’s decision

1. The applicant applied for review on 27 March 2014.  By letter dated 5 August 2014, the applicant was invited to appear before the Tribunal on 16 September 2014. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the applicant’s migration background. The Tribunal set out the relevant law. The Tribunal identified the applicant’s claims and evidence, including the sending of a letter dated 5 August 2014 which identified for the benefit of the applicant, that the Tribunal was unable to make a favourable finding on the information currently before the Tribunal and invited the applicant to give evidence and present arguments. 

3. The Tribunal identified the applicant’s claim to fear harm should he return to China because he is a practicing Roman Catholic. The Tribunal referred to the applicant’s claim that he was arrested and detained for three days after attending a particular event. The applicant also claimed that in October 2011, his mother was arrested and taken into custody for one month due to her holding an underground church gathering.

Consideration of the applicant’s credibility

1. The Tribunal identified having significant concerns about the credibility and the veracity of the applicant’s claims so far as they concern his practice as a Roman Catholic prior to coming to Australia and initially after his arrival in Australia. The Tribunal found the applicant’s evidence concerning his claims in that regard to be implausible as well as being inconsistent with country information. 

2. The Tribunal identified reasons for holding that the applicant’s evidence about his practicing as an underground Roman Catholic in China was unpersuasive. The Tribunal set out reasons in support of its credibility concerns in relation to the applicant’s accounts of his and his family’s claimed interaction with the police. 

3. The Tribunal also identified reasons in support of its concern as to the applicant’s claims of continuing to practice as a Roman Catholic while in the United Kingdom for about six months, between 28 September 2009 and 4 March 2009. The Tribunal expressed credibility concerns in relation to the applicant’s claimed inability to return to the United Kingdom to continue his studies.

4. The Tribunal also expressed credibility concerns in relation to the applicant’s claims, given the three year delay in lodging his application for protection. The Tribunal identified that the delay of over three years gave rise to significant concerns in respect of the applicant’s claims.

Refugee Convention criteria assessment

1. The Tribunal was also concerned with the lack of any corroborating evidence as well as the delay in the making of the application for protection, either in respect of claims concerning the United Kingdom or on his arrival in Australia.

2. The Tribunal was not satisfied the applicant’s parents are underground Catholics, that the applicant attended any Catholic underground gatherings in China or was baptised in an underground Catholic home church, or that the applicant or his family were questioned, harassed, detained or mistreated in any way by the authorities in China. The Tribunal did not accept the applicant left China because of a fear of harm based on his religion or for any other reason based on harm feared by the applicant. 

3. In light of the significant credibility concerns about the applicant’s evidence, the Tribunal was not satisfied the applicant was truthful about the time he commenced his involvement with the church. The Tribunal did not accept that the applicant had been attending church on a regular basis since first arriving in Australia.  The Tribunal found that the applicant commenced attending mass at St Dominic’s late in the second half of 2010 or early 2011.

4. The Tribunal was prepared to accept that the applicant engaged in conduct here in Australia of being a Roman Catholic for a purpose otherwise than solely to strengthen his refugee claim. The Tribunal accepted that the applicant is now practicing as a genuine Catholic and was satisfied that if returned to China, he would attend underground Roman Catholic gatherings and activities in his capacity as a lay parishioner, as he has done in Australia.

5. The Tribunal found that taking into account the country information identified by the Tribunal, that ordinary Catholic parishioners in the applicant’s home region, including the applicant and his family, have not previously been the subject of any adverse attention by the authorities in China.

6. In those circumstances, the Tribunal was satisfied that any chance of harm to the applicant by reason of his religion as a Catholic is remote.  The Tribunal found there is no real chance that if the applicant returned to China, the applicant would be persecuted for one or more of the required reasons set out in the Refugees Convention.

Complementary protection criteria assessment  

1. The Tribunal found there are not 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 he will suffer significant harm.

2. The Tribunal, having considered the applicant’s claims individually and cumulatively was not satisfied there was a real chance that if the applicant returned to China, the applicant would be persecuted for one or more of the five reasons set out in the Convention and found that the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Migration Act.

Before this Court

1. On 22 January 2015, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions. A further opportunity to do so was made pursuant to orders made by a judge of this Court on 28 June 2016. No such documents have been filed by the applicant.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. 

3. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for a further hearing.  The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.

The Applicant’s submissions from the bar table

1. From the bar table, the applicant submitted that he was not believed and sought to take issue with the Tribunal’s understanding of the practice of Catholicism in China. The substance of the applicant’s oral submissions was to invite this Court to engage in an impermissible merits review.

2. This Court does not have jurisdiction to revisit the merits. The adverse credibility findings made by the Tribunal were open on the material before the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. 

3. On the face of the material before the Court, including the record of the hearing and the reasoning of the Tribunal, the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

1. Under the orders sought by way of final relief in the application, the grounds are as follows:-

   1. I couldn’t agree with RRT’s decision because it has failed to carefully consider my tuneful statement and evidence I have provided to witness my faith and church practice to witness my catholic faith. RRT has not comprehensively considered my background and reason of unable going back to China due to my religion ground.

   2. RRT failed to consider the reality in my rural area that Roman Catholic Churches are outlawed and being repressed by Chinese government. Such harsh policy made our house church operation in China undergrounded without any freedom of preach and regular activity.

   3. I don’t think it is fair for RRT to judge my truthfulness and faith of something out of religion, to which I had given the fact on enquiries (item 50-51 on page 10-11 of decision).

   4. RRT has taken my statement for granted by giving a conclusion of my inability to describe the claimed detention in detail and the conspicuous omission of reference in my statement of being whipped, and this is not true (item 52 on page 11 of decision).

   5. RRT’s country information is irrelevant in my case and failed to give a fair consideration on my explanation of church practising in Australia before attending St Dominic’s Roman Catholic Church in Flemington NSW even thought I have made it clearly (item 53 on page 11 of decision).

   6. RRT failed to offer me a chance to make a comment on the outstanding questions off hearing and it is important for me to input any information which is better of to my situation.

Paragraph 1

1. In relation to paragraph 1, the Tribunal’s reasons reflect an orthodox approach to the conduct of the review and the Tribunal made dispositive findings in respect of the applicant’s claims to fear harm in relation to the applicant’s religion. No jurisdictional error is identified by paragraph 1 under the orders sought.

Paragraph 2

1. In relation to paragraph 2, the Tribunal’s reasons reflect proper evaluation and consideration of the applicant’s claims and evidence concerning his practice of Catholicism. It was a matter for the Tribunal to determine whether or not to accept the applicant’s evidence.  No jurisdictional error is identified by paragraph 2.

Paragraph 3

1. In relation to paragraph 3, this identifies a disagreement with the adverse findings made by the Tribunal. The adverse findings were the subject of logical and rational reasons based on the evidence before the Tribunal. Those adverse findings were open and paragraph 3 fails to identify any jurisdictional error.

Paragraph 4

1. In relation to paragraph 4, this reflects a disagreement by the applicant with the findings of the Tribunal and does not identify any jurisdictional error.

Paragraph 5

1. In relation to paragraph 5, it was a matter for the Tribunal to determine what country information to take into account and what weight to give country information. There is no substance in the assertion that the country information taken into account by the Tribunal was irrelevant.  Further, the Tribunal’s reasons reflect a genuine engagement with the applicant’s claims and evidence. No jurisdictional error is made out by paragraph 5 under orders sought.

Paragraph 6

1. In relation to paragraph 6 as stated above, the material before the Court supports the applicant having a real and meaningful hearing. There is no evidence to support the assertion that the applicant was not given an opportunity to present evidence and arguments. The reasons in the decision of the Tribunal, as well as the hearing record, are inconsistent with that assertion. No jurisdictional error is made out by paragraph 6 of the relief sought.

2. The grounds of the application identified the following three grounds:-

   1. I am a Chinese student and used to get involved in underground Roman Catholic Church in China. I had terrible experience in pursuing my faith in China.

   2. I have a fear to be persecuted if return to origin as Chinese Government still remains repression against underground church, and bearing hostile attitude against Roman Catholic Church followers. Any church practice besides Patriotic Church will be inevitably mistreated, blackmailed and persecuted by local authority.

   3. I have commitment on my faith and a pious adherent of house church practice. I preach gospel wherever I go but the crucial reality occurred in my local make me scared to go back.

3. The above grounds in the application are in substance a repetition of the applicant’s claims and do not identify any jurisdictional error, but rather invite this Court to engage in an impermissible merits review. No jurisdictional error is made out by grounds 1 to 3 in the grounds of application.

The s.438 certificate

1. The first respondent, consistent with its obligations as a model litigant, has drawn to the Court’s attention the existence of a certificate dated 2 April 2014. The first respondent has adduced evidence in respect of the documents the subject of that certificate. The documents the subject of the certificate, concern an identity assessment of the applicant and refers to the applicant travelling to the United Kingdom. The applicant’s identity was not in issue before the Tribunal and the applicant’s travel to the United Kingdom for a brief period was not the subject of any dispute or issue before the Tribunal.

2. The Tribunal’s reasons do not reflect any taking into account of the certificate or the documents the subject of the certificate. Whilst the certificate must be taken by this Court to be invalid, the subject of the certificate was not relevant to the review or findings made by the Tribunal in the present case.

3. I am satisfied that the applicant suffered no practical injustice by reason of the failure to disclose the existence of the certificate or the documents the subject of the certificate in the present case. For this reason, no jurisdictional error is made out. 

4. Further, I am satisfied insofar as it is said that there was a denial of procedural fairness because of the failure to disclose the certificate, or the documents the subject of the certificate, that the documents could not possibly have impacted on the outcome of the decision and in these circumstances, relief should be refused on discretionary grounds.

Conclusion

1. As no jurisdictional error is made out, the application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  15 August 2017