SZRSJ v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Circuit Court of Australia made on 14 November 2014. Judge Cameron of the Federal Circuit Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal made on 24 July 2012. The Tribunal had affirmed a decision made by a delegate of the Minister for Immigration on 26 October 2011 to refuse to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). The Minister's delegate refused to grant the visa because she was not satisfied that the appellant was a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees as required by s 36(2) of the Migration Act 1958 (Cth). 2 The appellant appeared in person with the assistance of an interpreter and was asked to explain the basis of his appeal to this Court from the decision of the Federal Circuit Court. It was clear from the appellant's oral submissions that his grounds of appeal were about the facts which the Tribunal accepted or found adversely to him. The appellant complained that the facts upon which the Tribunal decided were wrong and that the decision was unfair. These, however, are not matters within this Court's jurisdiction on appeal. The Court is not able to reopen the factual inquiry which was given by the legislature to the Tribunal. This Court is limited to considering whether there is an error of law in the decision made by the Federal Circuit Court. No error has been shown. 3 The appellant's grounds of appeal to this Court are stated to be: His Honour erred in rejecting the proposition that the [Refugee Review Tribunal] had misapplied the "real chance" of persecution test by finding that the [Refugee Review Tribunal's] findings were: a. available on the "country information" evidence and b. made after properly addressing the "country information" evidence submitted by the Applicant and accepted by the [Refugee Review Tribunal] (differently constituted) on an earlier occasion. These grounds of appeal, however, cannot succeed because none are errors which were made by the Federal Circuit Court. The appellant's application to the Federal Magistrates Court (as the Federal Circuit Court was then called) was supported by an affidavit dated 10 August 2012, which did no more than identify the date on which the appellant came to Australia, the date he applied for the protection visa, the fact that the application was refused, and that the Tribunal had affirmed the decision not to grant him the visa. The grounds in the application were not supported by any other material and the appellant's submissions to the Federal Circuit Court were a challenge to the facts and fairness of the decision of the Tribunal which the Federal Circuit Court had no power to consider. The appellant had not raised before the Federal Circuit Court, as a ground of appeal, that the Refugee Review Tribunal had misapplied the "real chance" test and no such ground was considered by the Federal Circuit Court. The Federal Circuit Court did not find that the Tribunal's findings were available on the "country information" evidence and did not find (contrary to the appellant's stated ground) that the Tribunal's findings had been made after addressing the "country information" evidence submitted by the appellant and accepted by the Tribunal (differently constituted) on an earlier occasion. 4 The facts and issues which had been before the Federal Circuit Court are set out in its reasons for judgment delivered on 14 November 2014. They need not all be repeated but it may be useful to set out the amended application which had been before the Federal Circuit Court and which is found in its reasons at [15], namely: 1. The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the Applicant that he ceased attending a Chinese government registered Christian church in China because it was controlled by the Chinese government. Particulars: a) The Applicant's "Personal Statement" in support of his application for a protection visa stated that the registered Christian church that he began to attend on his return from Israel "was under the surveillance and intervention of the government" and "was government controlled", the government being the Chinese government. (CB 27) b) In the Applicant's interview with the First Respondent on 24 October 2011 the applicant stated that he stopped attending the registered church in China because: i) it was controlled by the government, and therefore it did not respect Jesus Christ as the first, most important and only God ii) it was controlled by the Chinese Community party and therefore disobeyed the real meaning of Christianity (CB 55, 140-141 at paragraph 29) c) At the hearing of the RRT: i) the Applicant stated that the registered church in China was established by the Chinese government which took orders from the government (CB 148 at paragraph 69) ii) the RRT did not squarely confront the Applicant in relation to his claims that the registered church in China was controlled and took orders from the Chinese government. The RRT merely asked the Applicant to state what his concerns were with the registered church at the time he was making certain suggestions to the deacon of the registered church and, accordingly, the RRT misstated, at CB 155, paragraph 105, that the Applicant had simply been "asked by the Tribunal to communicate all his concerns regarding the registered church in China". 2. The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the Applicant as to the persecution suffered by him in China after his detention by the Chinese police in December 2009. a) The Applicant's "Personal Statement" in support of his application for a protection visa stated that when the Chinese police attended his rented accommodation, one week after being set free from detention in December 2009, they warned and threatened him that if he kept developing his "family church" he "would never have peaceful life again", "they even smashed my TV and other furniture" and "After that, they came to my place every week to make trouble for me." (CB 29-30, CB 57.9, CB 138 at k)) b) However, the RRT stated that, according to his written claims, the Applicant had not experienced adverse treatment in relation to his claimed religious activities since being released from police detention in July 2007 (CB 149, paragraph 78) 3. The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the totality of the Applicant's evidence relating to his church attendances and practices in Australia. a) The Applicant tendered to the RRT photographic evidence relating to his attendance at and worship at a Christian church in Australia. The RRT misstated his evidence in this respect stating that the photographic evidence tendered related to church attendances in Israel. (CB 144, paragraph 46c), CB 150, paragraph 79) b) The Applicant tendered a baptism certificate in evidence to the RRT and a copy was taken by the RRT. The RRT did not confront the applicant in relation to this document nor did it refer to this document in its decision. The Federal Circuit Court went on to consider each of the grounds which had been raised by the appellant for that Court's consideration. Neither the matters considered by the Court, nor the grounds which the appellant had relied upon in the proceeding before the Federal Circuit Court, raised any of the matters now sought to be raised as grounds of appeal in this Court from the decision of the Federal Circuit Court. 5 The first matter which had been relied upon by the appellant in the Federal Circuit Court was a claim by the appellant that the Tribunal had failed to take into account as a relevant consideration the appellant's evidence that he had ceased to attend a registered church in China because it was controlled by the Chinese Government. The Federal Circuit Court found in that regard that he had made such an assertion in the statement he had attached to his visa application but that he had not maintained it as a claim in the hearing before the Tribunal. The transcript of the hearing before the Tribunal reveals that the appellant had said to the Tribunal that he had left the registered church because of differences between him and the deacon concerning the length of time taken during the service explaining the bible, and the need for more time when the "brothers and sisters could come together, talk about their personal affairs…pray together and share things together" and "other activities such as give gifts to brothers and sisters", "and also to carry occasion between fellow believers. For beginners those people should be given menu (like a booklet) so those people could get a better understanding of the bible". The reviewer at the Tribunal went on to ask whether there were any other concerns about the registered church at the time, to which the appellant said "at that time I did not have other concerns. I simply wanted to make the church a better place like those churches in overseas countries." The matter was raised again by the Tribunal member towards the end of the hearing to explore the appellant's issues with the registered church as a personality clash rather than a fear of persecution or a fear that the appellant could not express his faith in the Christian church. In that part of the transcript the appellant indicated that the church did not persecute him but simply did not accept his suggestions and told him that what he was saying was not true. 6 This ground of appeal was considered by the Federal Circuit Court, which said in its reasons (at [16]-[18]): Ground 1 16. The evidence concerning the reasons for the applicant's departure from the registered church in China was set out in the Tribunal's reasons: a) The more times I went to church, the more I found that the church was under the surveillance and intervention of the government. When I raised an objection to those who managed the church, they laughed at me, saying I was ignorant, fake Christian. I was so upset and disappointed that I left that church with some other church goers. (Statement attached to visa application and quoted by the Tribunal) (p.137 of the Court Book which was exhibit A); b) In relation to his claims that, when he started attending a registered church in China following his return from Israel, he made suggestions regarding the service, the Tribunal asked who he approached with his suggestions. He responded that he approached the deacon and suggested that the time to explain the bible [sic] was not long enough; church activities did not exist, so he suggested that brothers and sisters should come together to pray and share personal experiences and give gifts to one another. He also suggested a booklet for followers. When asked if he had any objections to the registered church other than these suggested improvements he responded he did not, he just wanted it to be better, like overseas. (Evidence to first day of Tribunal hearing) (CB 147-148); c) … the registered church took orders from the government and disregarded things about Jesus. When asked to elaborate on how the registered church disregards Jesus he repeated that they do not offer enough activities or time to explain the bible [sic]. (Evidence to first day of Tribunal hearing) (CB 148). 17. The applicant should therefore be understood to have indicated to the Tribunal, as it recognised at para.105 of its reasons, that the claim he had made in the statement lodged with his visa application was no longer being pressed and that he relied instead on the claim made at the Tribunal's hearing. It was this claim which the Tribunal considered at paras.103-105 of its reasons. In such circumstances, I conclude that the Tribunal did consider the claim which the applicant pressed concerning state involvement in Chinese registered churches but concluded that it did not ground a well-founded fear of persecution for a Convention reason or a proper basis for a real fear of significant harm, as defined in s.36 of the Act. 18. Although the Minister submitted that particular (c)(ii) of the first ground might have been, impliedly, an allegation that the Tribunal breached s.425 of the Act, I read it as raising a matter which the Tribunal did not need to address, namely, whether Chinese registered churches are, in fact, controlled by the Chinese government. The issue which the Tribunal did have to address was whether the reasons the applicant advanced for leaving the registered church were credible, not whether they were correct. In some circumstances the issue of government control of registered churches might be relevant but that was not so in this case because the Tribunal was not satisfied that the applicant had formed, conducted or participated in unregistered Christian gatherings in China, which were said to have been the consequence of his departure from the registered church, and which were the basis of his claimed fear of returning to China. Nothing in the Federal Circuit Court's consideration of the first ground before it raises any of the errors now claimed in the appeal to this Court. The Federal Circuit Court found that the Tribunal had considered the claim as pressed by the appellant and that there was no error in the Tribunal's decision. There was, therefore, as the Federal Circuit Court had pointed out, no requirement for the Tribunal directly to raise with the appellant the accuracy of the proposition in his initial application that the registered church in China was in fact controlled by the Government. The appellant had been given a number of opportunities to confirm his written claim that he had left the registered church in China because of government control but he gave alternative reasons to the Tribunal. 7 The second ground which had been alleged by the appellant before the Federal Circuit Court was an alleged failure by the Tribunal to take into account as a relevant consideration the persecution he claimed to have suffered after his detention in December 2009. This ground had failed before the Tribunal because the Tribunal had rejected his claim to have been detained in 2009 as well as his claims to have "formed, conducted or participated in unregistered Christian gatherings […, or] that he [had] suffered any adverse attention or treatment in connection with such claimed activities". The Tribunal's rejection of his claims was based upon adverse credit findings. 8 This ground was considered by the Federal Circuit Court at [19]-[22] of its reasons: Ground 2 19. In para.78 of its reasons the Tribunal recorded that it put to the applicant that he had not alleged, in his written claims, that he had experienced adverse treatment in relation to his claimed religious activity after being released from detention in July 2007 although his statement lodged with his protection visa application had made such a claim. Relevantly, it said: One week after I was set free [from detention in December 2009], the cops came to my renting place and warned and threatened me that if I kept developing the family church, I would never have peaceful life again. They even smashed my TV and other furniture. After that, they came to my place every week to make trouble for me. 20. Plainly the statement in para.78 of the Tribunal's reasons was incorrect. However, it was no more than a proposition put by the Tribunal to the applicant in discharge of its natural justice obligations under s.425 of the Act and not part of its reasoning. Further, that misunderstanding, together with any possible failure to advert to the evidence in question was of no significance because the relevant issue, or non-issue, was not a material part of the Tribunal's decision-making. The question whether the applicant had been harassed by the Chinese authorities would only have assumed relevance if the Tribunal accepted the applicant's allegations concerning the circumstances which might, according to him, have led to such harassment. However, the Tribunal did not accept those allegations, specifically: a) at para.105 of its reasons the Tribunal expressed the view that the applicant's evidence cast doubt on his claims to have set up his own unregistered Christian gatherings in China and did not evidence any doctrinal differences between his beliefs and those which could be expressed in the registered Christian church; b) at para.106 the Tribunal expressed the view that the applicant's ignorance of important aspects of Christian belief belied his claims to have read the entirety of the Bible, to have set up his own church and to have preached the Bible and Christianity in China for about seven years before coming to Australia in May 2010; c) at para.107 the Tribunal said that the discrepancies in the applicant's accounts of events in 2006 and 2007 compounded its concerns regarding the credibility of his claims and evidence as well as the truth of his claimed circumstances in China; d) at para.108 the Tribunal found that the applicant's evidence concerning how he applied for a student visa had been changeable, unreliable and unconvincing and that this compounded its concerns that he had not been truthful about significant aspects of his claims and evidence; e) at para.109 the Tribunal expressed the view that the applicant's conflicting and changing evidence concerning his move to a rented apartment compounded its doubts regarding significant aspects of his claimed circumstances in China, in particular his claim to have been of adverse interest to the Chinese authorities; f) in para.110 the Tribunal observed that the applicant had exaggerated aspects of his claims; g) at para.111 the Tribunal expressed the view that the applicant's claims concerning his treatment in detention and the police treatment of his wife compounded its concerns that significant aspects of his claims and evidence had not been reliable or truthful; and h) at para.112 the Tribunal concluded that the applicant's delay in lodging his protection visa application, in the context of the extensive concerns it had already expressed, compounded its doubts regarding the truth of his claimed circumstances in China. 21. The Tribunal went on to say: Taking into account all the claims and evidence before it, including cumulatively, the Tribunal is not satisfied that the applicant has formed, conducted or participated in unregistered Christian gatherings in China as he claims, nor that he has suffered any adverse attention or treatment in connection with such claimed activities. The Tribunal does not accept that the applicant has been questioned, detained, beaten or otherwise adversely treated in connection with any actual or perceived participation in unregistered Christian activities in the past. In the context of the extensive and significant credibility concerns detailed above, including the concerns identified in connection with the applicant's claims regarding the demolition of his home and his claimed 30 day detention in commencing in December 2009, for the reasons given above the Tribunal does not accept that his property was demolished, or that he was detained in December 2009 in connection with that claimed demolition or for any other reason. 22. Consequently, even if the Tribunal had overlooked the applicant's claims to have been harassed from January 2010 onwards because of his religious beliefs, that did not amount to jurisdictional error because the failure to take it into account could not have materially affected the decision or possibly have deprived him of a successful outcome to his application for review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]. The Federal Circuit Court's conclusion in [22] above followed from the Tribunal's conclusions rejecting the appellant's evidence. The Tribunal's findings do not reveal any misunderstanding or failure to consider any aspects of his claims. The Tribunal had not accepted that he had engaged in any activity in the unregistered church or that he had consequently suffered any religious persecution and, therefore, it was unnecessary for the Tribunal to deal specifically with whether he had been persecuted for his religious beliefs in 2010. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 the Full Court said at [47] that it "may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected". 9 The third ground which the appellant had relied upon before the Federal Circuit Court was that the Tribunal had misunderstood some evidence and had overlooked other evidence. The appellant contended that the Tribunal had misunderstood photos of him attending religious activities as being of him photographed in Israel, whereas the Tribunal should have understood the photographs to be of him in Australia. The Federal Circuit Court dealt with the ground by saying: Ground 3 23. In the third ground of the amended application the applicant alleged that the Tribunal had failed to consider all his evidence related to his church attendances and practices in Australia. In para.114 of its reasons the Tribunal stated that it accepted that the applicant had attended church in Australia and also that he wished to continue practising his Christian faith in the future. That being so, there was no reason for the Tribunal to undertake any particular analysis of the applicant's claims and evidence concerning his religious observances in Australia. Even if the Tribunal had failed to consider the matters which the applicant alleged it did not consider, that would not have led to a different conclusion on the issue in question or a different decision on the review. 24. Consequently, the third ground of the amended application does not demonstrate jurisdictional error on the Tribunal's part. The appellant also claimed that the Tribunal had also overlooked a Baptismal Certificate. The ground which the appellant had relied upon in this connection had been that the Tribunal ought to have taken into account the evidence of his church attendances and practices in Australia but, as the Federal Circuit Court observed, that evidence (even if the Tribunal had failed to consider it) would not have altered the Tribunal's conclusions because the Tribunal had accepted that the appellant had attended church in Australia and that he wished to continue practising his Christian faith in the future. 10 The decision of the Federal Circuit Court is, therefore, not shown to be in error. The matters which the appellant has sought to agitate in this Court, to the extent that they seek to engage in a review of the facts or the fairness of the decision, are not within the jurisdiction of the Court on appeal. Accordingly, the appeal will be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.