SZCNC v Minister for Immigration - [2006] FMCA 165

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCNC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 165

MIGRATION – RRT decision – Chinese claiming persecution for religious activities – disbelieved by Tribunal – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A(1), 424A(3)(a), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572

Applicant:

SZCNC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG132 of 2004

Judgment of:

Smith FM

Hearing date:

30 January 2006

Delivered at:

Sydney

Delivered on:

30 January 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr Justin Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG132 of 2004

SZCNC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 19 January 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 November 2003 and handed down on 17 December 2003. The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act which have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in November 2002 and very soon submitted an application on 6 November 2002 for a protection visa, assisted by a migration agent, Mr Wayne Han. Her application attached a statement signed by the applicant explaining her reasons for seeking protection against return to her country of nationality, The People’s Republic of China.
The applicant claimed that she had been dismissed from her government job “due to my Catholic belief”. She said: “my parents have been devoted Catholics. I was baptised since birth”. She claimed that in 1974, when she was about 12 years old: “our Catholic Church was destroyed and closed by the Red Guard”. She claimed that religious activity then continued in the priest’s private home, but that the houses of local Catholic people were often entered and searched by police. The statement continued:
I have continued to practice my Catholic faith. I have held religious gatherings in secret in our area, I organised as many as 12 families of local Catholics to worship the Lord together. As a manager, I also financially contributed to our worship and helped our Catholic communities. The police had entered my home four times with no warrant, they taken away some bibles and other religious books. One day, the police came to my home and warned me that I would be put into jail if I continue to organise Catholic gathering. As a result, we had to appoint a person on watch every time we gathered. If anyone came to harass, we had to split like an emergency. We had experienced the running away during preaching or prayers more than ten times. No matter what, we would never give up our faith under this kind of tyrant oppression.
In a Sunday morning in May 2001, five policemen suddenly came to gathering. I was lucky enough to run away, but 2 Catholic brothers were arrested and detained for two days. The policemen also took most of our religious books and brochures.
A delegate refused the application on 10 January 2003, referring to the vague and undetailed claims and the absence of evidence to substantiate them. The delegate pointed to a number of matters causing doubt about their credibility.
The applicant appealed to the Refugee Review Tribunal on 24 January 2003, assisted by the same agent. No more details nor supporting material were forwarded. The applicant attended a hearing held by the Tribunal on 9 October 2003. A transcript is not in evidence, but the Tribunal gives a detailed account of its questioning.
The Tribunal was suspicious of the applicant’s statement attached to her visa application, because an identical document had been seen in a different case. The Tribunal questioned her about its preparation, including by reading the statement to her, sentence by sentence, through an interpreter. The applicant then “indicated that she had given the information (which I had read to her), to her agent who had put it in the form of a written statement”.
When invited to indicate whether she made other claims, the applicant referred to a person who had been called in by the PSB and punished “by making him stand in the snow. The skin on his feet was open like a cut as a result”. She told the Tribunal that she and this person had attended church together and practised Falun Gong together, and that “the government thought that they were attending Falun Gong activities together”. The Tribunal questioned her about why those claims were not contained in her original statement.
The Tribunal also extensively questioned the applicant about her attendance at church in Australia, and her knowledge of the faith and practices of the Roman Catholic Church. It said it also asked her:
if she was claiming that she was a Falun Gong practitioner. She responded, ‘I think I’m not, they said I was, but I say I’m not.’ I asked who had said that? She said, ‘the people from the PSB’.
The Tribunal also discussed country information about leaving China, and the situation in China of Christians belonging to the official and unofficial Catholic Church.
At the end of the hearing, the applicant told the Tribunal that she had been very nervous and had many things to say, but she did not know how to put it. The Tribunal said that it would allow her to present a signed statutory declaration setting out all of her claims. The Tribunal then wrote to her confirming that opportunity.
On 15 October 2003, the applicant lodged a letter in which she said:
First of all, I have to declare sincerely that I have decided to terminate my current migration agent, who is obviously irresponsible and the migration agent has not correctly and clearly explain to me about relevant legal definition, legal procedure as well as relevant regulations and laws to me. The migration agent, also, has neither correctly nor fully translated my claims to the Department of Immigration or to the Tribunal.
Except those claims that I have mentioned in the previous written materials as well as at the hearing, my fear of being persecuted on return is also coming from a miserable experience of Mr W, a significant leader of the underground Catholic Church.
She then referred to an incident in January 2002 in which Mr W was forced to stand in the middle of a yard on bare foot and was taken to hospital for frostbite. She claimed to have assisted him to get a passport, and made an important new claim:
After I arrived in Australia, I kept contact with Mr W at the very beginning. However, he was arrested in December 2002 when he organized an underground religious gathering on Christmas. The policemen found a Chinese passport in his place, and then found that the passport was obtained through my assistance. My friend in the [procuraterate] has escaped to a remote place. I have been put on the blacklist of the Public Security Bureau since then, because I have been regarded as a person who intends to assist a ‘criminal’ (Mr W has been classified as a ‘criminal’) to flee the country.
The Tribunal then invited the applicant to a second hearing, which she attended on 29 October 2003. It gave a lengthy description of that hearing in its reasons. The Tribunal was still concerned about the presentation of the original statement, and put to the applicant that it was “fabricated” and that “all her claims were a fabrication”. It asked her questions about why she had never previously raised her claim to have helped Mr W obtain a passport and to have been placed “on a blacklist for helping a criminal to flee the country”.
The Tribunal questioned her concerning her reference at the first hearing to having helped redundant workers, and the applicant gave new details about that claim and to having participated in protests in front of the city council. The Tribunal also asked her further questions concerning her claims to adhere to the Christian faith, to have lost her job, and to have been detained and interrogated.
In its statement of reasons the Tribunal set out all this evidence. It identified independent country information concerning the Catholic Church in China, procedures for obtaining a passport and exiting China, and the treatment of Falun Gong members.
Under the heading “Findings and Reasons”, the Tribunal commenced with a clear finding about the applicant’s general credibility. It said:
in this matter the applicant’s fundamental claims were not substantiated by her at the hearings, she raised new matters and her evidence was internally inconsistent. As a result, I find that the applicant is not a witness of credit.
This conclusion did not rely upon the matter which had initially caused it concern. It said:
Although the applicant’s initial typed claims were the same as another applicant’s (and expressed in exactly the same language), I have given her the benefit of the doubt in that regard on the basis that the applicant’s claims may have been reproduced by the other applicant.
In relation to the fundamental claim that the applicant feared persecution as a practising Roman Catholic, the Tribunal concluded:
On the basis of the applicant’s responses to my questions at the hearings, I find the applicant is not a Catholic and not a leader in the Church. She did not show a well‑developed knowledge of the basic principles and facts related to Catholicism.
The Tribunal explained that conclusion, inter alia, by referring to the fact that the applicant did not know who the Pope was, and did not know the tenets of her beliefs. On the evidence before me, this adverse conclusion appears to have been open to the Tribunal, and I am not able to draw any conclusion that it was based on any unfairness in its questioning of the applicant at either of the hearings.
The rejection of the applicant’s underlying claim as to her religious activities, then explained most of the Tribunal’s subsequent adverse findings.
I note that after making this finding, as with its subsequent adverse findings, the Tribunal went through an exercise of considering the opposite factual hypothesis in a manner which may not have been necessary, but which I do not consider reveals any error amounting to jurisdictional error.
The Tribunal said:
Because I found that the applicant is not a Catholic, I also reject her claims which are associated with this, such as her being fired, and that the authorities harassed their gatherings and they were forced to split up and run away, and the confiscation of her religious books and material.
Similarly, the Tribunal rejected her claim concerning the four PSB visits to her home.
The Tribunal then dealt with a number of new claims which had been made by the applicant in the course of the hearings and in the applicant’s post‑hearing letter. It addressed whether she would face a risk on return as an imputed Falun Gong practitioner, but did not accept her claims that she had practised Falun Gong with Mr W, based on its general opinion about her credibility. In relation to helping redundant workers and participating in protests, the Tribunal similarly did not accept it “on the basis of the applicant’s lack of credibility”. That finding also was the basis of its rejection of her claims concerning what happened to Mr W.
In the course of rejecting these claims the Tribunal referred to the lateness with which they had been raised, and made it clear that it did not accept her explanations for this. The Tribunal also referred to the applicant’s ability to obtain a passport and exit permits from China and thought that this confirmed that the applicant “was not perceived as a Falun Gong leader”. The Tribunal said: “as a result of my findings above, I find that there is no basis for the applicant’s fear of returning to the PRC”, and that it was not satisfied that the applicant faced a real chance of persecution should she return to the PRC now or in the foreseeable future.
I have considered the Tribunal’s reasoning carefully. As I have indicated, it was essentially based on a credibility finding which, in my opinion, was open to the Tribunal on the material before it. I have been unable to identify any jurisdictional error affecting its decision.
The applicant’s application to this Court contained grounds which were repeated and extended in an amended application.
The first ground raised in the amended application was also contended by the applicant today when reading a submission to the Court. It was that the Tribunal failed to comply with obligations under s.424A(1), which in some circumstances requires the Tribunal to invite an applicant to comment upon information in writing. The applicant identified the information which she argued the Tribunal was obliged to make the subject of such an invitation as being a body of general country information referred to by the Tribunal which is reproduced at the back of the Court Book. In particular, she referred to information concerning the issuing of passports to people wanted by the authorities.
In my opinion, these contentions must fail by reason of the exclusion of the Tribunal’s duty in relation to general information, not specifically about an applicant (see s.424A(3)(a) and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572).
A subordinate contention made in her oral submission was that the Tribunal referred to country information concerning the obtaining of passports which was contained in a 1998 report. She argued that this was out of date information, so that it was unfair of the Tribunal to rely on it. However, I am not persuaded from the material before me that it was of no relevance to the Tribunal’s consideration. There is no evidence before me to show that the Tribunal could not consider it to have had current relevance.
The applicant’s further submissions addressed five points which were made in the second paragraph of the amended application (numbering added):
1.The Tribunal failed to consider the fact that I have been misled by my previous migration agent, who never ever carefully explain to me about the Refugee Definition, relevant laws or regulations and legal proceedings.
2.The Tribunal failed to conduct an investigation that the irresponsible behavior of my previous migration agent cause significant negative impact on my primary and review application.
3.The Tribunal failed to consider the fact that I was, in fact, in a particularly vulnerable situation when I prepared my application for protection visa. Especially, I do not understand English; I am in an alien environment and must experience serious difficulties, technical and psychological. Therefore, it is almost impossible for me to prepare a complete claims and application materials from the beginning.
4.The Tribunal failed to consider my application according to actual situation in my home country. Especially, the Tribunal failed to consider the fact that there is no religious freedom in China at all!
5.The Tribunal failed to provide me a complete copy of the negative information used to consider my claims, and the Tribunal failed to provide a chance to comment the negative information.
In relation to the first contention, I do not accept that the Tribunal failed to consider the applicant’s explanations for the late raising of many of her claims and their absence from the original statement attached to the visa application. The applicant’s attempt to blame the agent in her letter filed on 15 October 2003 was inconsistent with what she had told the Tribunal at the hearing. On the Tribunal’s description of the procedures followed at both hearings, she had ample opportunity to explain her inconsistencies and the late raising of various matters. In my opinion, it was open to the Tribunal to take an adverse view of her evidence.
The second contention is that the Tribunal failed to conduct an investigation into the agent. However, in my opinion, the Tribunal was not obliged to conduct any investigations which it did not take. Its duty was to assess the applicant’s claims, taking into account her explanation for the history of how they had been presented, and it has complied with that duty.
In relation to the third contention concerning the applicant’s “vulnerability”, I am not persuaded that the Tribunal failed to take into account the various aspects which are referred to in this contention. The Tribunal gave the applicant the fullest opportunity to explain herself with the assistance of an interpreter at two hearings and in a written submission following the first hearing.
The fourth contention raises only a matter going to the merits of the Tribunal’s decision.
The fifth contention is unclear to me. If it is a repetition of the argument concerning country information, then the Tribunal was under no specific duty to invite comments in a case to which s.422B applied. In any event, on the Tribunal’s description of the hearing the “negative information” was fully canvassed with the applicant.
For the above reasons, I have not been persuaded that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred by s.474(1), and I must dismiss the application.

I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 13 February 2006