FEDERAL COURT OF AUSTRALIA

SZQWV v Minister for Immigration & Citizenship [2012] FCA 817

THE COURT ORDERS THAT:

1.    The appeal is dismissed

2.    The appellant pay the costs of the first respondent, to be taxed if not agreed

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a decision of Federal Magistrate Cameron, delivered on 21 March 2012, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 October 2011. The Tribunal’s decision affirmed the decision of a delegate of the first respondent (the Minister) to refuse to grant the appellants a protection visa.

background

2    The appellants are citizens of the Peoples Republic of China (China). The first appellant originally arrived in Australia on a student visa in June 2007. She returned home to China, and most recently arrived on a further student visa in February 2009. The second appellant arrived in Australia on a student visa in May 2008. The appellants met in Sydney in 2009 and began a relationship. Both of the appellants’ student visas expired on 15 March 2011, with both appellants remaining in Australia after this date. The appellants were located by compliance officers of the Department on 21 July 2011, and were detained on the basis that they were unlawful non-citizens. They were for a period in detention at the Villawood Detention Centre but are now located together in Community Detention.

3    The first appellant was subsequently interviewed by the Department on 21 July 2011 following her detention. At that interview the appellant indicated that she had debts in China as her family owed money. The appellant claimed further that she was a Christian, and that she had been since she was a child.

4    On 3 August 2011, the appellants lodged an application for protection visas with the Department of Immigration and Citizenship, with the second appellant being included in the application as a member of the first appellant’s family unit. A delegate of the Minister refused to grant the visa on 23 August 2011. On 5 September 2011, the appellants lodged an application for review with the Tribunal.

5    The first appellant claimed that she and her parents were Christians, and members of the Family Church in China. She claimed that in May 2011, the police arrived at her parent's house in China during a Christian gathering. The police interviewed them all separately, and detained her father for 15 days as he had organised the home gathering. As a result, the appellant claimed to fear returning to China, and claimed she will be forced to participate in Christian activities underground because of the government's attitude to Christians.

6    The first appellant gave evidence to the Tribunal that she had never been baptised. The Tribunal questioned her at length about her beliefs and experiences, and expressed concern that she had not lodged a protection visa application until after she was located and detained. The second appellant also gave evidence, stating his family was Christian and that when he was young “several police came and created problems”.

7    After the Tribunal hearing, on 12 October 2011, the Tribunal wrote to the appellants pointing out inconsistencies in the first appellant's evidence given to the Department during her compliance interview, to the delegate, and to the Tribunal, inviting a response by 28 October 2011. On 28 October 2011, the appellant responded, claiming, inter alia, that she had not previously told everything as she had not wanted to “lose face”. She claimed that her lack of knowledge about her local church was because she was not “good enough” and that she could not “express herself very well”.

the TRIBUNAL’S DECISION

8    On 31 October 2011, the Tribunal affirmed the decision of the delegate not to grant the appellants a protection visa.

9    The Tribunal rejected the appellants’ claims on the basis of numerous adverse credit findings. It found that the appellants had manufactured their claims following their detection of working without visas, and their detention at Villawood. In particular the Tribunal found:

(a)    when the first appellant was interviewed by compliance officers at the time of her detention on 21 July 2011, she did not make any claims to fear harm in China for reasons of her religion, or that her parents had experienced any problems as a result of their religion. Instead, she stated that she wished to stay in Australia “a bit longer” to make some money and allow her parents to come to Australia for a holiday;

(b)    the Tribunal did not accept the first appellant's explanation for a delay in lodging her Protection Visa Application (PVA), being 4 years after her first arrival in Australia. Further, the Tribunal noted that the first appellant had not lodged her PVA in May 2011, when her father was supposedly arrested. It was only after she was detained that she lodged a PVA;

(c)    the timing of her father's arrest only weeks before she was detained was so coincidental as to be indicative of a manufactured attempt to overcome potential concerns regarding the lengthy delay between the first appellant's arrival and her PVA;

(d)    the fact that the first appellant has not been baptised despite supposedly living with a Christian family all her life made her claim of being a devout Christian not credible;

(e)    the fact that the first appellant had not discussed her father's arrest with her partner, the second appellant, indicated that her father had not in fact ever been arrested. It followed that the first appellant would not have a “bad record” upon return to China;

(f)    the first appellant's evidence about her Church involvement in Australia was problematic, and the Tribunal did not accept that she had attended any of the churches she referred to. It found no evidence of any involvement in religious activities in Australia prior to her detention;

(g)    the first appellant's knowledge of Christian concepts was good, however, the Tribunal found that this was not due to any genuine interest in Christianity but learned in an attempt to establish a basis for refugee status in Australia. It found that the Christian activities of both appellants in Villawood Immigration Detention Centre had been engaged in solely for the purpose of strengthening their refugee claims. The Tribunal therefore ignored the appellants' claimed involvement in Christianity in Australia pursuant to s 91R(3) of the Migration Act 1958;

(h)    the Tribunal found that neither of the appellants were Christians in China and did not accept that they had become Christians in Australia. It found that neither appellant would seek to have any involvement in Christianity upon return to China; and

(i)    the independent evidence indicated that there was a generally liberal attitude towards Christianity in the appellants’ home province of Fujian.

10    Accordingly, the Tribunal was not satisfied that the appellants faced a real chance of persecution should they return to China now or in the foreseeable future.

Proceedings before the Federal Magistrate

11    Proceedings in the Court below were commenced by way of an application filed on 28 November 2011, with an amended application being filed on 23 December 2011. The following grounds of appeal were advanced on the amended application:

(a)    The Tribunal made a jurisdictional error by failing to fairly consider my evidence objectively and independently.

(b)    Failing to take into account every relevant facts of the matter.

(c)    Error of law in the decision itself and in the manner in which the Refugee Review Tribunal conducted the hearing and matter.

12    Additionally, at the hearing before the Federal Magistrate, the appellant raised a further complaint that the Tribunal had no evidence which contradicted their claims.

Ground 1

13    As to ground 1, his Honour observed:

[25]     The adverb “fairly” in the first allegation of the amended application does not, in my view, add anything to what I appreciate to be the allegations made in this ground, that the Tribunal was not objective and failed to conduct an independent review.

[26]     Both those allegations can be dealt with at the same time and fairly shortly, in large part because the applicants have not indicated, by way of particulars or argument, in what way they say the Tribunal was not objective or independent. Considering the decision as a whole, I find it to be a thorough examination of the claims made by the applicants as well as a thoughtful analysis of those claims and the evidence which was before the Tribunal. The Tribunal’s description and analysis of the evidence represents a logical and rational approach to its statutory task. Further, it was a review apparently uninfluenced by the conclusions reached by the delegate and thus was the Tribunal’s own review.

[27]     Should “fairly” in fact add anything to this allegation and imply a lack of fairness, it amounts to an allegation that the Tribunal did not undertake a bona fide review. To my mind, there is nothing in the decision record which would support such a conclusion. That record indicates a thorough and conscientious approach to the Tribunal’s duties.

Ground 2

14    As to ground 2, his Honour observed:

[28]     The allegation that the Tribunal failed to take all relevant facts into account is similarly limited by the absence of particulars or submissions which might flesh it out. While failure to consider material may amount to jurisdictional error if an applicant is thereby denied the possibility of a different outcome, there is no basis that I have been taken to, or can see, which would support a conclusion that any relevant facts were overlooked by the Tribunal on this occasion. Rather, the decision of the Tribunal was very thorough and detailed.

Ground 3

15    As to ground 3, his Honour observed:

[29]     The third ground of the application appears to contain two elements. The first is that there was an error of law in the Tribunal’s decision. Subject to the allegation which will be considered at the end of these reasons, no error of that sort has been identified during the course of submissions at the hearing of this application. It was not suggested that the Tribunal applied the wrong test, took into account irrelevant considerations, failed to take into account relevant considerations or committed other errors of that sort. Nor is such a failure apparent from the Tribunal’s decision.

[30]     The second element of the third ground of the application appears to be an allegation that the applicants were denied procedural fairness. The Tribunal’s obligations to provide applicants procedural fairness are codified by s.422B of the Act in div.4 of pt.7 of the Act. The most important provisions of that division are ss.424A and 425. As noted earlier in these reasons, the Tribunal served a s.424A notice on the applicants and thereby discharged its obligations under that section. The applicants were invited to a hearing before the Tribunal, which they attended, and the Tribunal thereby discharged part of its obligations under s.425 of the Act. The Tribunal discharged the remaining elements of its s.425 obligations by making it clear throughout its hearing with the applicants that various matters were issues arising out of the decision under review. It squarely put to the applicants a number of matters which were ultimately determinative of its review.

16    The Court below also considered the complaint raised in oral submissions, that the Tribunal had not been able to contradict the evidence which was placed before it to contradict the first appellant's story. His Honour observed the following:

[34]     The other submission made by the applicants at the hearing of this application was that the Tribunal had not identified a negative case or had not been able to contradict the evidence which had been placed before it, presumably particularly in relation to the first applicant’s alleged adherence to Christianity and the alleged persecution of her father. However, the Tribunal is not required to make out a negative case or to demonstrate that an applicant’s allegations are untrue or unreliable before it can affirm a delegate’s decision. Its task under the Act is to determine whether it is satisfied that an applicant has met the criteria for the grant of a protection visa. Consequently, although in Tribunal reviews applicants do not bear a formal onus of proof of the sort applicable to a court proceeding, nevertheless it is their practical obligation to convince the Tribunal that they meet the criteria for the grant of the visa they seek. If their case before the Tribunal is insufficiently persuasive then they will fail to satisfy the Tribunal and thus will be unsuccessful. For this reason, the fact that the Tribunal did not identify a case disproving the applicants’ case is not indicative of error. The Tribunal was not satisfied that the applicants had made out their case and that conclusion reflected the test which it had to apply.

The application in this court

17    The notice of appeal filed in these proceedings contains one ground of appeal:

1.    the court made a wrong Judgement on my credibility.

18    On 16 April 2011, directions were made by a Deputy District Registrar of the Court regarding the preparation of the appeal for hearing, including the filing and service of submissions. Those directions, relevantly, required the appellants to file and serve written submissions no later than ten clear working days before the hearing date.

19    As at the time of preparation of these submissions, no such document has been served on the Minister.

20    In the absence of particulars this application does not identify any legal error in the judgment of the Federal Magistrate.

21    On review of an adverse decision by a delegate of the Minister, such as here, it is for an applicant to satisfy the Tribunal that all of the statutory elements are made out: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596.

22    The merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses, are for the Tribunal to determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291-292.

23    The Tribunal does not have to possess rebutting evidence before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant: see by analogy Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J. As the Minister submits, and I accept, the findings of the Tribunal were clearly open to it on the evidence before it.

24    The appellant has failed to identify any legal error in the judgment of the Federal Magistrate, or jurisdictional error in the decision of the Tribunal. For these reasons, the matter should be dismissed with costs.

Associate:

Dated:    2 August 2012