SZVTK v Minister for Immigration and BORDER Protection
[2015] FCCA 1462
•1 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVTK v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1462 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 363 |
| Applicant: | SZVTK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3372 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 1 June 2015 |
| Date of Last Submission: | 1 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2015 |
REPRESENTATION
| The Applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Hervee De Jean(Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3372 of 2014
| SZVTK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 4 December 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal, dated 7 November 2014 and handed down on 11 November 2014 (“the RRT”).
On 5 March 2015, the applicant attended a directions hearing before a Registrar of the Court.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit and written submissions in support of the grounds of his application by 25 May 2015.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language, together with a copy of the relevant costs schedule under the Federal Circuit Court Rules 2001 (Cth) (“the Rules”)
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was also given to the applicant.
Rule 44.12 of the Rules provides as follows:
“(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.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise.
The applicant’s complaints about the RRT decision are set out in a document attached to the applicant’s initiating application, under the heading “Orders Sought by Applicant”. Those complaints are as follows:
“l think RRT's decision is unfair for me as my statement and evidence given has not been comprehensively considered.
RRT's decision lack of reasonable account to produce a prudent determination. My religious background has unable to be well considered.
RRT failed to consider the reality in my origin that Roman Catholic Churches are treated as illegal by Chinese government, house churches have to operate undergrounded, suppressed and persecuted, and that is why my fear to return in original is amounted.
I don't think it is fair for RRT to judge my truthfulness of my faith by testing my bible and church knowledge as it is unfair and unsuitable for a measuring a person's value and spirit with almighty God as different person has different understanding and ability to express but it does not bother his/her commitment on faith. This issue is described in item 59- 62, 65 on page 11
RRT failed to give a fair consideration on my explanation of church practicing in Australia before attending St Dominic's Roman Catholic Church in Flemington NSW even though I have made it clearly. This issue described in item 57 on page 11
RRT failed to well consider the evidence given by church Father McGee in hearing to witness my faith and church practice described on 74 on page 13.
RRT failed to offer me a chance to make a comment on the outstanding questions off hearing and it is unfair for me and input valuable information which may assist to kick out the misunderstandings, if any.”
Under the heading “The Grounds of the Application Are”, the applicant did no more than restate some of his claims. The applicant’s complaints were interpreted for him, and the applicant was invited to say whatever he wished in support of those complaints. The applicant said he had nothing further to say.
I accept as accurate the summary by the first respondent in written submissions of the applicant’s backgrounds and claims, and the RRT’s decision as follows:
“5. The applicant is a national of the People’s Republic of China (China) who arrived in Australia on 24 June 2007 on a student visa. He was granted a further student visa which expired on 15 March 2010. After that time, the applicant remained in Australia as an unlawful non-citizen.
6. On 26 June 2013, the applicant lodged an application for the visa. He sought protection on the claimed basis of fear of persecution in China due to his practice of Roman Catholicism. He claimed that in China, he and his family were participants in the underground house church that follows the Roman Catholic faith. As a result, he was arrested twice by the local police for participating in underground church activities, and his parents were also detained on two occasions due to their church activities and their refusal to join the official/registered Patriotic Catholic Church. He claimed that he would be arrested if he returns to China, if he does not join the Patriotic Catholic Church.
7. On 4 December 2013, the applicant attended a Protection visa interview with a delegate of the first respondent, and on 7 March 2014, the applicant was refused a Protection visa.
8. On 3 April 2014, the applicant sought review of the delegate’s decision with the Tribunal.
9. On 9 September 2014, the applicant attended a Tribunal hearing. The Tribunal also heard evidence from the applicant’s witness, Father Paul McGee, a Catholic priest.
10. On 7 November 2014, the Tribunal affirmed the decision under review.
Tribunal Decision
11. The Tribunal rejected the applicant’s claims for protection on credibility grounds. A summary of the Tribunal’s concerns regarding the applicant’s credibility is as follows:
11.1 The applicant gave unpersuasive evidence regarding his attendance at Church services in China, was unable to provide basic details about his church in China (including its location, or name) although he claimed to have been attending since he was a child, and his description of the church gatherings he attended was vague
11.2 The applicant could only provide scant details about his alleged arrests, and the Tribunal considered that his claims of arrest due to attendance at an unregistered church was not supported by country information, which indicated that there is increased tolerance of unofficial churches by the Chinese authorities
11.3 The Tribunal had concerns about whether the applicant was being truthful, because, in his student visa application, he had provided documentary evidence indicating that his parents were both professionals. However, to the Tribunal, he claimed that they were and have always been farmers. The Tribunal considered that the applicant’s preparedness to submit or to allow false information to be submitted on his behalf suggested that the applicant may have been prepared to provide false information to obtain a Protection visa
11.4 The applicant demonstrated little understanding of Christianity and of fundamental aspects and sacraments of the Roman Catholic faith. The Tribunal was particularly concerned that the applicant did not know the common name of the current Pope (Pope Francis), but he was able to state his birth name (Mario Bergoglio) and indicate that he was the 266th Pope. The Tribunal found that the applicant’s level of knowledge was not commensurate with his claimed life-long experience in the Roman Catholic faith
11.5 The applicant’s 6 year delay in seeking protection, along with the concerns above, raised doubts about whether his protection claims were genuine.
12. Whilst the Tribunal accepted, on the basis of the witness’ evidence, that the applicant had attended Catholic church services occasionally in Australia, it was not satisfied that he was involved with the Roman Catholic Church in China, that he was baptised or attended that church, or that that he and his family were detained or harmed in China due to their church activities. The Tribunal also did not accept that the applicant was a genuine and committed practitioner of the Roman Catholic faith and found that the applicant had attended church services in Australia for the purposes of strengthening his refugee claims, and consequently, the Tribunal disregarded that conduct pursuant to s 91R(3) of the of the Act.
13. Given its finding that the applicant was not a genuine Roman Catholic, the Tribunal found that the applicant would not seek to practise that religion if he was returned to China, and concluded that he did not have a well-founded fear of Convention related persecution.
14. In its consideration of whether the applicant satisfied the alternative criteria at s 36(2)(aa) of the Act, the Tribunal referred to the applicant’s conduct in Australia (his occasional church attendance) and found no evidence suggesting that this was known in China. Further, the Tribunal was not satisfied that even if the applicant’s church attendance in Australia became known, that this would lead to a real risk of significant harm to the applicant. The Tribunal was therefore not satisfied that the applicant satisfied the alternative criteria.”
Given that the applicant made no further submissions in support of his complaints, I accept as accurate the first respondent’s understanding of those complaints. In written submissions, the first respondent attempted to identify and address the complaints. The first respondent understood the applicant’s complaints as follows:
1. The Tribunal’s decision is unfair, the Tribunal did not comprehensively consider the applicant’s evidence and the Tribunal did not consider the applicant’s religious background
2. The Tribunal’s consideration of the applicant’s Christian knowledge was unfair
3. The Tribunal failed to fairly consider the applicant’s and the witness’s evidence about is church activities in Australia.
4. The Tribunal did not give the applicant a chance to comment on outstanding questions after the hearing.
A fair reading of the RRT’s decision record does not support those allegations.
Ground 1 asserts that the RRT’s decision is unfair in that it did not “compressively” consider all of the applicant’s evidence, in particular the applicant’s religious background. However, the RRT’s decision record makes clear that the RRT understood the applicant’s claims, and explored those claims with the applicant in some detail at a hearing. The RRT put to the applicant matters of concern it had about his evidence, and noted the applicant’s responses. Ultimately, the RRT found that the applicant is not, and never has been, a genuine and committed Catholic, and comprehensively rejected the applicant’s claims of past harm in China for that reason.
The RRT found the applicant’s evidence to be unpersuasive and vague, and was not satisfied by the applicant’s explanations for his limited knowledge of Christian and Roman Catholic principles. The RRT was troubled by various inconsistencies that it found to exist in information provided by the applicant in a student visa application made by him at an earlier time, and claims in his protection visa application. The RRT was also concerned about the six year delay by the applicant in seeking protection.
Ground 2 asserts that the RRT’s consideration of his Christian knowledge was unfair. The RRT’s questioning of the applicant’s religious knowledge, about his experiences at church services, was logical, given the applicant’s claimed experience and practice of the Roman Catholic faith since childhood. The applicant has not identified with any particularity any particular unfairness by the RRT in its consideration of his Christian knowledge. The RRT ultimately found that the applicant is not a genuine and committed Catholic. The RRT’s findings would appear to be open to the RRT on the evidence and material before it, and for the reasons it gave.
Moreover, the RRT’s exploration with the applicant of his religious beliefs does not suggest that the RRT engaged in any conduct to suggest that it set itself up as the arbiter of doctrine. The RRT noted that the applicant claimed to have attended a particular church in China for 18 years. However, the applicant was unable to describe the local church building, provide the name of the church, or give an address for that church. The RRT also found the applicant’s description of activities at church gatherings to be vague, and ultimately was not persuaded by the applicant’s claims to have attended an underground church for that period of time and has suffered harm for those reasons.
It is well-accepted that there is nothing objectionable in the RRT questioning an applicant about his or her beliefs and, when it does so, the RRT is entitled to evaluate the applicant’s answers against probative material that demonstrate the doctrines of the religion in question. The weight of that evaluation is a matter for the RRT. Relevantly, in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 363, Kenny J stated at [38] as follows:
“38 Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT[1] and SBCC[2] demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.”
[1] [2006] FCA 42
[2] [2006} FCAFC 129
In the circumstances, the RRT’s findings would appear to be open to it on the evidence and material before it, and for the reasons it gave, including the RRT’s adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
In Ground 3, the applicant also complained that the RRT failed to fairly consider his and his witnesses’ evidence about his church activities in Australia. However, the RRT accepted that the applicant attended church services in Australia, on the basis of the evidence of Father McGee, that the applicant had attended Mass at St Dominic’s Church, at least occasionally, in the recent past. The RRT noted the oral evidence given by Father McGee of the Western Sydney Catholic Church was to briefly state that he was familiar with the applicant from his attendance at Sunday Mass at St Dominic’s, but offered no further comments, apart from some general observations about the Roman Catholic Church in China.
Ultimately, the RRT found that the applicant had attended the church in Australia for the sole purpose of strengthening his protection claims and, accordingly, pursuant to s.91R of the Migration Act 1958(Cth) (“the Act”), disregarded that evidence in considering whether the applicant had a well-founded fear of persecution for a Convention-related reason. Again, the RRT’s findings were open to it in relation to those claims by the applicant on the evidence and material before it, and for the reasons it gave.
In Ground 4, the applicant complained that the RRT did not give him a chance to comment on outstanding questions after the hearing. Such a complaint does not identify any jurisdictional error. To the extent that the RRT had regard to information in the applicant’s student visa application, that information was given to the applicant at the hearing pursuant to s.424AA of the Act. There was nothing further on the face of the RRT’s decision record to suggest that there was any other information that enlivened any obligation under s.424A of the Act that required the RRT to put information to the applicant for comment, and none was identified by the applicant.
The applicant’s complaints appear to be no more than a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 4 December 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 18 June 2015
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