SZWBW v Minister for Immigration

[2015] FCCA 553

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 553

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – whether the Tribunal provided sufficient particulars.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999 s.17A
Federal Circuit Court Rules 2001 r.13.10
Migration Act 1958, ss.424A, 424AA, 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28.

Applicant: SZWBW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 311 of 2015

Judgment of: Judge Street

Hearing date: 11 March 2015

Date of Last Submission: 11 March 2015

Delivered at: Sydney

Delivered on: 11 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms Warner-Knight
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed. 

2. The applicant to pay the first respondent’s costs fixed in the sum of $1500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 311 of 2015

SZWBW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant is seeking a Constitutional writ in respect of the decision of the Tribunal made on 6 January 2015 affirming a decision not to grant the applicant a Protection (class XA) visa.  The application identifies that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.

2. On return of this matter on 5 March 2015 the Court informed the applicant, having looked at the application and the reasons for the decision, the Court was minded to consider whether the proceedings had any reasonable prospect of success and whether or not the Court should exercise its summary power to dismiss the proceedings.

3. The applicant sought an adjournment and the Court stood the matter over to today, being 11 March 2015.  The applicant informed the Court that he did not have any money and that he wished to obtain money from his friends and try and obtain a lawyer, and that he wanted assistance of his friends and a lawyer and that he was trying to make further arrangements for the obtaining of legal aid.

4. The Court identified that it was the position that it required the applicant to identify an arguable ground in the application and that it was not minded to grant an adjournment, there being no utility in doing so if there was no arguable ground. Further there was no utility in adjourning the proceedings and incurring costs for the parties and utilising Court time if the proceedings are doomed to failure. The applicant identified a criticism of the Tribunal in para.26 of the reasons and said that the underground church was persecuted in China. The applicant also asserted that he did not have a fair and just hearing and that there was an alleged breach of s.424AA(b)(iii) of the Migration Act 1958.

5. The grounds of the application are as follows:

   1. At Paragraph 26 decision records, the tribunal relayed on RR T Background Paper, Catholicism in China 2012 to conclude both the official and the underground churches in China believe in the truth of the Bible, which is obviously a fallacy as from the theological standpoint, Three-Self Patriotic churches in China are deemed as false temples built by Jeroboam in the reference to !kings chapter 12, which is detested by the God. The patriotic three-self churches appear to the real Christian churches, but in fact, all the clergies and ministers are appointed by the government and none of them is the graduated from the orthodox theology seminary and not faithful servants of the Lord Jesus to start with. They are merely the spokesmen and overseers of the Chinese Authority, to which sooner or later, God would bring total destruction.

   2. At Paragraph 46, the tribunal member stated that there have been no reports recently indicating that ordinary underground church members are experiencing any problem with the local authority in [F].

   However, in 12088757[2012] RRTA 973 (25 October 2012), the same Tribunal Member, Ms Fances Simmons found at [114]) that "Chinese Authorities have at times 'adopted harsh and arbitrary measures against unregistered 'home' churches, including incidents in which lay people have been arrested, detained and physically mistreated while carrying our ordinary religious activities. 'Given such, she concluded at [115), that the applicant, a Christian, would face a real chance of arrest, detention and mistreatment "while carrying out ordinary religious activities."

   Furthermore, In 1113027 [2012] RRTA 353 (16 May 2012, Tribunal Member Andrew Jacovides found at (59) that" the government of China restricts religious activities and sometimes targets individuals who participate in unregistered religious groups , " and that some local government authorities in China have subjected members of unregistered religious groups, particularly those who proselytize, to serious human rights violations." As a result, the Tribunal concluded (at [63]) that the applicant may be prevented from participating in religious activities of her choice, which was found to constitute persecution for Convention Purpose"

   In 1300505 [2013] (11 April 2013, Tribunal Member Pauline Pope pointed out at (55) that: "The forum 18 News Service reports that while religious policy in China is set by the central government, local officials have a degree of discretion as to how the policy is applied in practice: Anecdotal accounts suggest that local authorities have perpetrated religious freedom violations to serve the financial and political interests of local officials, who are often judged solely on how successful they are in achieving economic progress."

   Apparently. the Tribunal has made contradictory decisions on the assessment over the persecution facing the underground church members in [F]; therefore; I believe the tribunal was not acting in a fair and just manner and subsequently, failed to comply with the s422B(3) of the Migration Act, 1958 when assessing my refugee claim.

   3. More importantly; under s424AA (b) (iii) of the MIGRATION ACT 1958, the tribunal must advise me that I may seek additional time to comment on or respond to the information in relating to the RRT findings about the underground Catholics facing no persecution in [F].

   However, I was not informed that I could seek for additional time to respond to this information; I would have otherwise sought additional time to find out the above-mentioned previous RRT decisions. As such; I believe I was denied of procedural fairness as far as this information is concerned.

6. In considering exercising the Court’s summary dismissal powers, I take into account the powers s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), and the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

7. In this case, the Tribunal engaged in a very careful review of the applicant’s claims and evidence and made a detailed summary of the applicant’s evidence and the unsatisfactory features of the applicant’s evidence.  It is also clear from the Tribunal’s reasons that it in fact afforded the applicant both a first and a second hearing, and that the applicant had the benefit of a genuine hearing in relation to the alleged claims for a protection visa.

8. There is no substance in the assertion that the decision of the Tribunal was not fair, was not just or was wrong. This Court is not sitting as a Court of general merits review, and the findings made by the Tribunal clearly identify the basis for those findings and those findings were open. Nor is there any substance in the assertion of non-compliance with s.424AA(b)(iii) of the Migration Act 1958 as it is not the case that the Tribunal is required to inform the applicant of its deliberation process in relation to finding that the underground Catholics face no persecution in a particular location as this was contrary information within s.424A(3)(a).

9. The obligation under s.424AA attaches only to the giving of clear particulars of any information that the Tribunal considers will be the reason or part of the reason for affirming the decision that is under review. The criticism of alleged non-compliance with s.424AA by the Tribunal is entirely without substance. The decision of the Tribunal identifies that the applicant applied for a protection visa on 11 April 2012 and the delegate refused the grant on 21 November 2012.

10. The Tribunal conducted a hearing at which the applicant appeared first on 21 August 2013 to give evidence and present arguments and then again on 2 December 2014, and the Tribunal also received evidence from a number of persons.  The applicant was assisted by an interpreter in the conduct of those hearings.  The Tribunal carefully identified the statutory framework, and in relation to the applicant’s claims identified that it had regard to a range of country information about the treatment of Catholics in China including the information contained in the delegate’s decision record, the information provided by the applicant and the information identified in the reasons.

11. The Tribunal identified the applicant’s alleged claims for protection based essentially upon being a member of the Roman Catholic faith, and alleged persecution in China of Catholics.  The Tribunal noted:

    9. … The applicant arrived in Australia from China on 10 September 2005. On 6 January 2007 he left Australia and returned to China. He travelled back to Australia on 9 February 2007. He applied for protection on 11 April 2012.

12. The Tribunal raised with the applicant why if he had a genuine fear of persecution he had not sought a protection visa in 2005.

13. The applicant also provided written submissions to the delegate expressing his views about the difference between the government sanctioned church and the underground church in China, and providing further transactions of reports of alleged persecution.  The Tribunal noted:

    19. ...The delegate did not accept that the applicant’s claims that he was involved in the Catholic Church before coming to Australia were credible and found aspects of his claims about his religious activities in China to be implausible.

    20. … The delegate found that the applicant could return to China and continue to practise his religion in an officially approved church in which he could receive legitimate and valid ministry without fear of persecution. The delegate found that most of the Catholic Clergy in the officially approved Church in China are able to conduct valid and legitimate Roman Catholic services and that the fact that the Chinese government sometimes ordains bishops without Papal approval does not detract from this.

14. The Tribunal accepted that the applicant was a national of the People’s Republic of China and assessed the claims against the People’s Republic of China as his country of nationality. 

15. The Tribunal carefully identified the country information to which it had regard and then addressed in considerable detail its assessment of the applicant’s credibility.  At para.29 the Tribunal noted:

    29. For all the reasons that follow, I did not find the applicant to be a credible witness. My reasons for rejecting the applicant’s claims are explained below.

16. The Tribunal set out in full each of the reasons for rejecting the applicant’s credit.  It is sufficient to say that those reasons were clearly open on the evidence before the Tribunal.  I will however summarise in part some of the unsatisfactory features of the applicant’s evidence. 

17. From para.30:

    30. First, I consider the applicant’s evidence about his baptism in China and how and why he obtained a baptism certificate lacked credibility.

18. The Tribunal later in paragraph 35 said:

    35. Second, I consider the applicant’s own conduct indicates he does not have a genuine fear of persecution in China. Asked why he left China, he said he was afraid he would be persecuted for his religious beliefs. However, as I put to the applicant, I had difficulty understanding why, if he fled China because he was persecuted because of his religious beliefs and activities, he would return to China in 2007. I have considered the applicant’s evidence that a father was ill and dying and he returned to see him but did not go back to his home town in Fujian province because he believed he would be arrested. However, if the applicant was at risk of being arrested he could have been arrested before his departure from China in 2005 or when he returned to China in 2007.

    36. Nor do I accept it is credible that the applicant was not prepared to return to [L] in 2007 because he was afraid of being arrested when he was able to leave China legally travelling on a passport in his own name and, according to his own evidence, his parents, who he has described as ‘leaders’ of the underground church, remained living in [L] until 2011 (at which time he claims they fled the province along with his uncle). …

19. In para.37 the Tribunal said:

    37. Third, I consider that the photographs the applicant has provided to support his claims that he has engaged in religious activity in China actually undermine his credibility. …

20. The Tribunal expanded upon the reasoning in that regard.  In paragraph 38, the start of that paragraph the Tribunal noted:

    38. Fourth, I consider the applicant’s evidence about his uncle’s baptism was contradictory and highly improbable.  …

21. Again the Tribunal explained in detail the foundation for that finding.  In para.39 it is recorded:

    39. However, as I put to the applicant this explanation was different from the explanation provided in his written claims which stated that since my aunt and two of my cousins had fled China to avoid the persecution, my uncle had no such opportunity to be baptised.  In response to the Tribunal’s concerns, the applicant shifted his evidence and told the Tribunal there were two reasons why his uncle’s baptism was delayed (1) there was a limited number of fathers and they needed to consider the safety of the fathers and (2) there was the issue of safety of his aunt and cousin.  However, when asked about why his cousin and aunt fled China he was unable to provide any meaningful detail about why they did so and nor did he explain why, if his cousin and aunt were facing persecution, his uncle would choose that time to be baptised.

    40. Nor, in my assessment, has the applicant credibly explained why, given he has claimed his uncle was the child of leaders of the Catholic Church, he needed to learn about Catholicism from a nun before being baptised in middle age.  In particular, the applicant was not able to adequately explain how it was possible for the applicant to be baptised shortly after his birth (in 1987) but it was not possible for his uncle to be baptised before 2011 and, when the Tribunal raised its concerns with him, the applicant said there must be ‘some reason’ his uncle could not be baptised when the applicant was baptised.  I do not accept the applicant has credibly explained why his uncle (the biological brother of his father) had not been baptised at an earlier point in time. This casts doubts upon his claim that his father and uncle were arrested at a gathering in February 2011 where preparations were being made for his uncle’s baptism.

22. Paragraph 41, the Tribunal noted:

    41. Fifth, the applicant’s evidence about the problems his family members experienced was extremely vague and lacking in detail.

23. In para.43 the Tribunal said:

    43. In my assessment, the applicant’s own evidence undermines his claims that his family was targeted because his parents and grandparents had a leadership role in the underground Catholic Church in their area. 

24. At para.44 the Tribunal said:

    44. Sixth, I put to the applicant I had difficulty understanding why, if his mother and his father fled Fujian province in 2011, his grandfather then became the target of police attention some two years later.

25. The Tribunal continued to explain its concerns about the applicant’s evidence.  In para.45 the Tribunal noted:

    45. Seventh, the applicant’s evidence shifted and changed in response to the Tribunal’s concerns.

26. The example was then set out in detail.  In paragraph 46 the Tribunal said:

    46. Eighth, the applicant’s account of his persecution and the persecution of his parents and his grandfather is difficult to reconcile with country information about the treatment of Catholics who practise at unregistered house churches in [F] province.

27. That matter was put to the applicant and it is recorded as having been put to the applicant in para.46. Even if contrary to my view that there was any substance in the assertion of an issue of the kind identified in respect of s.424AA(b)(iii), para.46 makes crystal clear that the country information as to Catholics not facing persecution in a particular location was clearly put to the applicant.

28. Further the Tribunal said in para.47 that the applicant’s claim about his grandfather dying from an altercation with the police is undermined by the evidence of his brother.  The applicant’s brother appeared before the Tribunal and the Tribunal set out the evidence that he gave contradicting that of the applicant.  The Tribunal put to the applicant that this caused the Tribunal to question the credibility of the applicant, as well as the credibility of another witness.

29. The Tribunal put to the applicant that the documentation provided did not corroborate his claim that his grandfather died as a result of an altercation with the police.  The Tribunal found that while it accepted that his grandfather died in 2013, it did not accept he died in the circumstances claimed by the applicant.  In para.52 the Tribunal noted that it was not satisfied the applicant’s claims were credible.  In para.53 the Tribunal said:

    53. After carefully considering all the evidence, I find that the applicant is not a witness of truth. I do not accept the applicant’s claims of past harm. I do not accept that the applicant was ever disciplined because of his involvement in a Catholic Youth Group. I do not accept that the applicant was arrested and detained in August 2005 as claimed.  I do not accept that the applicant’s travel to Australia was motivated, even in part, because he feared religious persecution. I do not accept that when the applicant returned to China in 2007 he avoided his home town because he was afraid of being arrested or that he returned to home to visit a dying priest.  I do not accept that the applicant’s father and mother fled their home town to avoid religious persecution in 2011. While I consider it is possible that the applicant’s grandfather may have passed away in 2013, I do not accept his death was the result of an altercation with the police as claimed. I do not accept that the police went to the applicant’s family home in 2013 and that there was an altercation between the police and the applicant’s grandfather which resulted in his grandfather’s death from a head injury. I do not accept that the applicant is now, or ever was, of adverse interest to the Chinese authorities. I find that the applicant is not now and was not ever of any adverse interest to the Chinese authorities because of his religious activities and/or the religious activities of his family.

30. The Tribunal turned to consider whether the applicant is now a genuine Catholic, and noted that it was prepared to accept that the applicant had attended a Catholic Church in Australia.  Relevantly, the Tribunal found at para.56 that the applicant practises his faith as an ordinary practitioner and has never had any leadership role within the church.  The Tribunal found that it was satisfied that the chance of the applicant suffering any harm because of his religious beliefs and activities and, or religious beliefs and activities of his family is remote.

1. In para.62 the Tribunal said:

   62. There is also no evidence to suggest that the applicant would face a real chance of serious harm on the basis of having practised as a Catholic in Australia. I do not accept that there is anything in the applicant’s established pattern of religious practice in Australia that will give rise to a real chance of persecution if he returns home to China and continues to practice his faith in an officially sanctioned Catholic Church or, if he chooses to, an unregistered Catholic church. Consequently, I find that there is no real chance that the applicant would face persecution for reasons of his religion or for any other reason now or in the reasonably foreseeable future if he were to return to China.

2. The Tribunal held in para.63:

   63. I have formed the view that the applicant is not a witness of truth. I do not accept that the applicant’s claims that he and his family have come to the adverse attention of the Chinese authorities because of their religious beliefs and activities. I reject the applicant’s claims of past harm in their entirety. On the evidence before me, I do not accept that the applicant or his parents or his grandparents are now, or were ever, of any adverse interest to the authorities and I do not accept that his father and uncle fled Fujian province in the circumstances the applicant has described.

3. The Tribunal concluded:

   65. I find there is no real chance the applicant will suffer serious harm for the reasons claimed.  I do not accept that the applicant has a well-founded fear of persecution for reason of his religion, or any other Convention reason if he returns to China now or in the reasonably foreseeable future. I have considered the applicant’s claims individually and cumulatively. I find that the applicant does not have a well-founded fear of persecution in China if he returns now or in the reasonably foreseeable future. The applicant does not meet the refugee criterion.

4. The Tribunal turned to consider the complementary protection considerations:

   66. I do not accept the applicant’s claims that he and his family members have come to the adverse attention of the authorities in China because they are members of the underground Catholic Church. On the evidence before me, I do not accept that the applicant has any profile with the Chinese authorities other than that of an ordinary Chinese citizen.  Because I do not accept that the applicant is a person of any interest to the Chinese authorities because of his religious beliefs and activities or the religious beliefs and activities of his family, I do not accept 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 he will suffer significant harm on this basis.

   67. Based on the country information available to the Tribunal about the treatment of members of unregistered Catholic house churches in Fujian and my finding that the applicant is not of any interest to the Chinese authorities because of his religious beliefs and activities  (either in Australia or China) or because the religious beliefs or religious activity of his family members, I find that even if the applicant chooses to attend an unregistered church in Fujian province there is no real risk that he will suffer significant harm for doing so. Having regard to what I have accepted of the applicant’s claims, I find 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. The applicant does not meet the complementary protection criterion.

   CONCLUSION

   68. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   69. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   70. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

5. There is no substance in the criticism of para.26 of the Tribunal’s reasons.  The finding is clearly open, and the criticism and the grounds of the application does not identify any jurisdictional error.  Ground 2 of the application in relation to para.46 does not identify any jurisdictional error.  It was a matter for the Tribunal to make findings on the material before it, and to the extent relevant ground 2 seeks to advance an impermissible challenge to the findings of the Tribunal.

6. To the extent that it is suggested that there was some non-compliance with s.422B, I am clearly satisfied that the Tribunal complied with the statutory requirements under s.422B and relevantly acted in a way that was, fair and just, in its review of the application by the applicant for a protection visa. In relation to ground 3 of the application and the proposition that the applicant was not informed of the material before the Tribunal in respect of underground Catholics not facing persecution, it is contradicted by the content of the decision, and in any event for the reasons given above, this is not a matter that falls within the obligation under s.424AA because of s424A(3)(b). Further the information as to the underground Catholics not facing persecution was not caught by s424A; see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190; 235 ALR 609; 96 ALD 1 at [17].

7. The assertion in the last paragraph of the grounds that the applicant was not informed he could seek additional time to respond to the information is entirely lacking in substance because of s.424A(3)(b). The assertion that he was denied procedural fairness as far as the information was concerned is also without substance. There is no arguable jurisdictional error on the face of the application or the decision, and nothing has been put by the applicant to identify any arguable jurisdictional error. In these circumstances the proceedings are doomed to failure.

8. I am satisfied that this is an appropriate case to exercise the Court’s summary powers as the proceedings clearly have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 March 2015