SZDCC v Minister for Immigration

[2006] FMCA 243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCC v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 243

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC as a member of Catholic underground church.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2); 65(1); 422B; 424A; 474; 483

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: SZDCC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG838 of 2004

Judgment of: Emmett FM

Hearing date: 14 February 2006

Date of Last Submission: 14 February 2006

Delivered at: Sydney

Delivered on: 22 February 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr J.A.C. Potts

Solicitors for the Respondent: D. Sim, Clayton Utz Lawyers

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. The application before this Court is dismissed.

4. That the applicant pay the First Respondent’s costs in an amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG838 of 2004

SZDCC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 24 February 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

2. The Applicant is a 26 year old man who claims to be a citizen of the Peoples Republic of China.

3. The Applicant arrived in Australia on 12 February 2003.

4. On 12 March 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).

5. On 27 March 2003, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugee Convention as amended by the Refugees Protocol.

6. On 29 April 2003, the Applicant filed an application for review before the Tribunal. On 30 January 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

7. On 22 March 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

8. Pursuant to Short Minutes of Order made on 4 May 2004, the Applicant filed an amended application on 6 July 2004 (“the Amended Application”).

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia owes protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. The Applicant attended the hearing on 12 August 2004 and gave oral evidence in support of his claims.

2. The Applicant claimed that his family were criticised by the Red Guards during the cultural revolution due to their religious beliefs and stated that when he was about six years of age authorities visited his home looking for his grandmother and parents, but when they couldn’t find them beat up the Applicant.

3. The Tribunal comprehensively identified the claims made by the Applicant, both in his statutory declaration lodged in support of his application for review and his oral claims. The Tribunal also noted its discussions with the Applicant arising out of concerns it had in respect of various claims. The Tribunal identified with particularity the independent country information and noted its discussion with the Applicant arising out of that information. The Tribunal also had regard to post hearing material provided to the Tribunal, being a letter from an assistant pastor of the Chinese Catholic community.

4. The Tribunal accepted that the Applicant is a national of the PRC and that he is a member of the Roman Catholic Church. The Tribunal accepted that the Applicant’s family suffered some criticism during the cultural revolution because of their Catholicism, but noted that this was prior to the Applicant’s birth on 1 November 1977. The Tribunal did not accept the Applicant’s claim of being beaten by authorities during the cultural revolution, on the basis that the Applicant would not have been more than two years of age. Accordingly, the Tribunal did not accept that the Applicant had suffered past persecution for a Convention reason.

5. The Tribunal considered that, if it was wrong about that finding, then, if there was an incident that took place in 1983 or 1984 when the Applicant was six years of age, it was an isolated incident. For those reasons the Tribunal did not accept that the Applicant had a well founded fear of persecution based on that claim.

6. The Applicant also claimed that, because of his outspokenness at village meetings against the corrupt leader of the village, he was beaten by members of the village. The Tribunal accepted that the Applicant was assaulted by the villagers and that there was some general discrimination against the Applicant and his family as a result of the Applicant’s family’s failure to be bribed sought by the village leader and also because of the family’s religion.

7. However, the Tribunal noted that the Applicant’s family returned to the village in 1993 and the Applicant and his wife returned in 2000. The Tribunal also noted that the Applicant’s parents, wife and sister still reside in the village. The Tribunal found, based on the Applicant’s evidence, that the former corrupt leader no longer holds that position in the village. The Tribunal found that the Applicant has not been harmed since he returned to the village. The Tribunal also had regard to independent country information which it accepted as indicating that there was a high degree of religious tolerance in the area of the Applicant’s village. For those reasons the Tribunal did not find that the Applicant had a well founded fear of persecution based on that claim.

8. The Applicant also claimed orally at the hearing that, after his marriage in 2001, he and his wife attended the village underground church until 2001. The Tribunal noted that the Applicant’s statutory declaration asserted that the congregation of the general underground church could not practise their religion openly and freely. The Tribunal noted the Applicant’s claim that he passed messages to the relevant Bishop from about August 2001, with the assistance of Mr L. The Applicant claimed that, when he and Mr L came to the attention of the PRC authorities, Mr L fled the PRC and the Applicant travelled to Australia. The Applicant asserted that Mr L was subsequently arrested and disclosed the Applicant’s role in their activities to the authorities.

9. It is for those reasons that the Applicant claimed to be a target by the police in the PRC. The Tribunal accepted that the Applicant was a member of the underground church.

10. However, the Tribunal did not accept that the Applicant is a devout believer. The Tribunal based that finding on the evidence before it that it had taken the Applicant some 9 months to commence worship at a church in Australia. The Tribunal did not accept as plausible the Applicant’s explanation for not finding a church sooner and concluded that the Applicant had exaggerated his role in the church in the PRC and that he was no more than a member of the congregation of a Catholic Church.

11. The Tribunal noted the Applicant’s agreement that the government could not crack down on the Catholic Church because of the power of the Catholic Church worldwide. The Tribunal noted that independent country information before it revealed that congregations of the underground churches were not being harassed and that there was no general crack down.

12. The Tribunal rejected the Applicant’s claim that the PRC authorities would punish him for overstaying his visa. The Tribunal relied on independent country information in making that finding which reveal that there was a high degree of religious tolerance in the area of the Applicant’s village.

13. The Tribunal rejected the Applicant’s “certificate”, signed by the relevant Bishop in the PRC, referring to restrictions of freedom of belief in the PRC, Mr L’s arrest and the chasing of the Applicant by the PSB. The Tribunal noted the independent country information before it, which it accepted, that it was very easy to obtain false documents in the Applicant’s village and for those reasons it placed no weight on the certificate by the relevant Bishop in support of the Applicant’s claims.

14. The Tribunal noted that the Applicant’s claims regarding his role in the Catholic Church and the adverse attention he had drawn were inconsistent with independent country information before it and the Tribunal preferred the independent country information.

15. For those reasons the Tribunal found that the Applicant would face no restrictions on the practice of his religion if he were to return to the PRC and therefore did not have a well founded fear of persecution for a Convention reason.

16. The Tribunal found that the Applicant did not have any adverse profile with the PRC authorities and, in accordance with the independent country information before it, found that the Applicant was able to obtain a passport and exit permits after being vetted by the PSB and was able to leave the PRC without any problems.

17. For those reasons, the Tribunal found that the Applicant would not face a real chance of persecution were he to return to the PRC now or in the reasonably foreseeable future for his religion or for any other Convention reason.

The proceeding before this court

1. The Applicant was unrepresented before this Court, although he had the assistance of an interpreter.

2. The Applicant made no submissions in support of his application filed on 22 March 2004, nor his document entitled “Amended Application”, filed on 6 July 2004, which is more in the nature of submissions.

3. The First Respondent distilled the grounds of review, with which I agree, as follows.

Ground 1 – I was not given a proper opportunity to explain my case

1. There were no further particulars relating to this claim provided by the Applicant. Clearly, on the material before this Court, it is apparent that the Applicant attended the hearing and gave oral evidence. The Tribunal detailed the claims made by the Applicant, its concerns with evidence, the information to which it had regard and provided reasons for the findings of fact that it made arising from the evidence before it.

2. The Tribunal also considered further material furnished after the hearing, at the request of the Applicant.

3. There is no transcript before this Court. The Tribunal decision reveals a careful and detailed approach by the Tribunal to identifying the Applicant’s claims before it and seeking to make relevant findings of fact. Those findings were open to the Tribunal on the material and evidence before it.

4. Accordingly, this Ground is rejected.

Ground 2 – The Tribunal was wrong to find I was not a refugee and made mistakes in saying I was not a refugee

1. There are no particulars in respect of this Ground. It would appear to be cavilling with the findings of the Tribunal. The findings were open to the Tribunal on the material and evidence before it. It is not open to this Court to review the merits of the Tribunal decision (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [10]).

2. Accordingly, this Ground is rejected.

Ground 3 – Failure by the Tribunal to accept the evidence of the Applicant

1. The Applicant complains that the Tribunal did not accept that he was a member of the underground church or a devout believer. The Applicant claimed that, “only if a person is a member of an underground church in China, the person is subjected to imprisonment. No matter he or she is a devout believer or not.”

2. It is not clear to me whether the Applicant was complaining that the Tribunal made an error in finding that he was not a devout believer. If that is the Applicant’s complaint, then that is a finding of fact that was open to the Tribunal on the evidence and material before it.

3. If the Applicant was intending to state that it was not necessary whether or not he was a devout believer because, if the Tribunal accepted that he was a member of an underground church in the PRC, then the Tribunal should have found that he was subjected to persecution. The Tribunal did find that the Applicant was a member of the underground church. However, the Tribunal accepted independent country information before it that indicated that there had been a gradual relaxation in the government policy towards religious activities. For those reasons, the Tribunal was not prepared to find that, simply because the Applicant was a member of an underground church, he was subjected to persecution by reason of his membership of that church. Those are findings of fact that were open to the Tribunal on the material and evidence before it.

4. Accordingly, this Ground is rejected.

Ground 4 – The Tribunal’s rejection of the “certificate” signed by the relevant Bishop in support of the Applicant’s claims.

1. The Applicant complains that, even if the Tribunal was to accept independent country information that it is easy to obtain false documents in the Applicant’s village, that is not sufficient to “prove that the certificate by bishop Y was a false document.”

2. Section 422B applies in this case and states that Part 7 Division 4 of the Act, which includes s.424A, is an exhaustive statement of the natural justice hearing rule.

3. The Tribunal put to the Applicant its concerns about the authenticity of the “certificate” and noted the Applicant’s responses. Ultimately, it is a matter for the Tribunal to consider and weigh the evidence before it and make findings accordingly. It is a matter solely for the Tribunal the weight it seeks to place on various pieces of evidence before it (NAHI at [11]).

4. Further, the Tribunal had before it independent country information that ran counter to the claims made by the relevant Bishop in his letter in respect of the relation of religious freedoms in the Applicant’s village. It was open to the Tribunal to prefer that evidence over the material of the Applicant.

5. Accordingly, this Ground is rejected.

Ground 5 – Rejection by the Tribunal that the Applicant will not face persecution by reason of his membership of an underground church in the PRC.

1. The Applicant appears to complain that, having found that he was a member of an underground church, it was not open to the Tribunal to find that he would not face “any restrictions on the practice of my religion (underground church) if I returned to the PRC.”

2. As stated above, the Tribunal identified and made clear the independent country information before it that caused it to find that the relaxation of religious freedom in the relevant area was such, that membership of an underground church would not result in the persecution of the Applicant, were he to return to the PRC.

3. Those findings were open to the Tribunal on the material and evidence before it.

4. Accordingly, this Ground is rejected.

Conclusion

1. In the circumstances, I am satisfied that the Tribunal properly considered the factual claims before it made by the Applicant and the findings made by the Tribunal in respect of those facts were open to the Tribunal. The Tribunal correctly applied those facts to the relevant principles and made conclusions, for which it gave reasons, based on its findings. The decision is not affected by jurisdictional error.

2. Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

3. Accordingly, the Application is dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Kwong

Date:  21 February 2006