SZFXG v Minister for Immigration

[2006] FMCA 1249

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFXG v MINISTER FOR IMMIGRATION [2006] FMCA 1249

MIGRATION − Review of RRT decision − where applicant claimed persecution on the Convention ground of religion − whether the Tribunal was biased in making its decision − whether the Tribunal failed to consider every integer of the applicant’s claim − whether the applicant was provided with a proper interpreter − whether the Tribunal failed comply with s.424A − whether the Tribunal’s decision was illogical.

Migration Act 1958 (Cth), s.424A

SCAA v The Minister [2002] FCA 668
SZDNG v Minister for Immigration [2005] FCA 1034
SZHIB v Minister for Immigration [2006] FCA 611

Applicant: SZFXG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File number: SYG658 OF 2005

Judgment of: Raphael FM

Hearing date: 21 August 2006

Date of last submission: 21 August 2006

Delivered at: Sydney

Delivered on: 21 August 2006

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Ms T. Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. The applicant to pay the respondent’s costs assessed in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 658 of 2005

SZFXG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 28 August 2004.  On 12 October 2004, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs.  On 25 November 2004, a delegate of the Minister refused to grant a protection visa and on 21 December 2004, the applicant applied for review of that decision.  The applicant gave oral evidence to the Tribunal on 11 February 2005.  On the very same day, the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 4 March 2005.

2. The applicant’s claim to have a well-founded fear of persecution for the Convention reason of religion arose in circumstances in which the applicant claimed that in January 2004 he was introduced by a Mr Lu to an underground church which operated out of a Mr Li’s house. 

   
   

   He attended a meeting with about 20 other persons engaged in Bible study and thereafter:

   “Felt strongly from the inside of my heart that it was a very pure and peaceful area in which I could commend my soul to God.”

3. The applicant continued to attend Bible study groups four nights a week and was baptised on 1 March 2004.  The applicant claimed that on 17 April 2004, police and local officials broke into Mr Li’s home and all the participants there were denounced for attending an illegal religious gathering and were taken to the PSB for investigation and interrogation.  The applicant claims that he was beaten and given little food, but was released on 30 April after his parents paid a substantial bribe. 

4. Although Mr Li was no longer available to hold these classes, Mr Lu, who had been in Hong Kong, returned and the applicant assisted him to build up the underground church again.  The applicant claimed that by July 2004 they had set up three Bible study groups with over 60 members.  On 1 August 2004, the applicant claimed that whilst returning from Bible study he was told that Mr Lu and 20 others had been arrested and that he was on the black list.  The applicant arranged for a priest to be protected and then for his own escape, whereby he left China for Australia on 27 August 2004. Prior to leaving Australia, the applicant had been continuously employed as a fish farmer working in a family plot, presumably near the sea because at one stage he told the Tribunal that certain prayer group meetings were conducted whilst the members were out fishing. 

5. The Tribunal noted that the applicant had not provided any written or other corroborative evidence about his conversion to Christianity and so set out to try and establish for itself whether or not it could be satisfied that he was a Christian. The Tribunal acknowledged that the applicant had only had a short period of primary schooling.  It asked the applicant a number of questions about the Christian religion which, no doubt, an educated person familiar with the Christian faith would be able to answer easily.  He was asked what baptism meant.  He was asked who John the Baptist was and what he did.  He was asked who wrote the book of Corinthians and what its purpose was.

6. There may be some who would consider that these questions were inappropriate and showed a lack of cultural awareness on the part of the Tribunal, but on the other hand, there may be others who consider that it is part of the Tribunal’s responsibilities to question applicants in this manner in order to come, as near as possible, to the truth.  In any event, the applicant did not give answers that were satisfactory to the Tribunal, even if they might have been satisfactory to someone other than the instant member. 

7. There may be people who would say that a response by the applicant to the question what happened at baptism, being that he would be placed in a swimming pool and pressed under the water, was not unreasonable, given the methods of baptism that are frequently vouchsafed to us on the television by religious groups of the United States.  There may be those who feel that a man with five years’ schooling in Chinese might have difficulty explaining the philosophical nature of St Paul’s letter to the Corinthians, but this Tribunal clearly did not. 

8. The Tribunal said at [CB102]:

   “Notwithstanding the claims made by the applicant, the Tribunal has not been able to satisfy itself that he is a Christian and does not accept this claim; nor, given his limited knowledge and understanding of the Bible and Christianity, has the Tribunal been able to satisfy itself that he has “been one of the key members in the underground church and my belief has not been tolerated by the Chinese government”.”

   Whilst other Tribunals may not have approached an assessment of the applicant’s Christianity in the same manner as this Tribunal, it cannot be denied that the Tribunal’s view concerning the importance of the applicant in the organisation which he described can be logically supported by the applicant’s apparent lack of sophistication in doctrinal matters. And, as it was his activities as an organiser that allegedly caused the applicant to be placed upon the black list, a reasonably grounded inability to be satisfied that he was such a person justifies a decision not to grant a visa. 

9. The Tribunal did take into account the possibility that the applicant might return to China as a Christian, but came to the view that he was unlikely to be persecuted, even if he did attend an unofficial church and this finding was based upon available country information. 

   
   

   The Tribunal also substantiated its failure to be satisfied of the applicant’s claims by the fact that he had managed to leave China some time after the events in question, and certainly after he had been told that he was on the black list, without any difficulties at the departure gates and that this was not consistent with Chinese practice, again, as found in independent country information.

10. In his amended application, the applicant makes a number of claims as to why the Tribunal fell into jurisdictional error in coming to the conclusions which it did.  The first point was that the Tribunal was biased against him. He repeated this assertion at the hearing today and he also repeated the assertion that the Tribunal had only asked him one question and then determined he was not a Christian.  It will be clear from the views which I have expressed previously concerning the questions posed to the applicant that much more than one question was asked, at least on the face of the document.  If the applicant wished to rebut that he was obliged to have produced a transcript, which he has not done, and in the absence of the transcript I am satisfied that there is nothing in this argument.

11. In any event, as the authorities have made clear, bias is a serious matter.  As Von Doussa J said in SCAA v Minister for Immigration [2002] FCA 668 at [36]:

    “Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented… The allegation must be "distinctly made and clearly proved": Minister for Immigration v Jia (2000) 178 ALR 421 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.”

    The applicant could, of course, argue that the Tribunal had shown ostensible bias in the manner of its questioning, but I am unable to consider such a claim in the absence of any transcript. (See also SZBYJ v Minister for Immigration [2005] FMCA 1927 at [15]-[25].)

12. The second matter raised by the applicant was that the Tribunal failed to consider his claims and that he did not get a proper interpreter. 

    
    

    The applicant referred to a question put by the Tribunal as to the name of the pastor in the church which he attends in Sydney.  The Tribunal acknowledged that the interpreter was unable to translate the name of the pastor.  The applicant was also asked by the Tribunal what the address of this church was and the applicant was unable to provide it. The applicant says this is not because he did not know the address, but because he was new in Sydney and found it difficult to explain where the church was.  This is understandable, but the Tribunal did not actually use this failure to provide information against the applicant, saying at [CB103]:

    “The Tribunal is willing to give the applicant the benefit of the doubt and accept that he has, on occasions, been to this church since he has been in Australia.  However, from his claims, he has given no indication that he has become an active member of the church and its congregation.”

13. The next matter referred to by the applicant is that the Tribunal failed to observe the Migration Act 1958 (Cth) (the “Act”) properly to make the decision. I’m not entirely clear what the applicant means by this, but Ms Wong, who appears on behalf of the Minister, has interpreted it as a failure to comply with s.424A of the Act. She has found three categories of information which could have been relied upon by the applicant to argue that there has been breach of s.424A. The first is found at [CB101.8] to [101.10] where the applicant refers to his being one of the key members in the church. The second is found at [CB103.3] to [4], where the applicant makes a claim that when he was returning from bible study on the fishing boat, he was told he was on the black list. The third is the claim found at [CB103.5] to [6], that he was detained for almost two weeks in April 2004. All three of these claims are made originally in the protection visa application, but in his application to the Tribunal, the applicant squarely put all these matters in issue by saying that he did not think the delegate had considered all his claims fairly three times at [CB55], [CB56] and [CB59]. Ms Wong rightly points out that this type of submission by an applicant to the Tribunal which refers directly to matters considered by the delegate are matters which fall within the exception stated in s.424A(3)(b) of the Act: SZDNG v Minister for Immigration [2005] FCA 1034 at [6]; SZHIB v Minister for Immigration [2006] FCA 611 at [23].

14. The applicant submits that the Tribunal’s lack of satisfaction was not based upon a rational or logical foundation. This ground is not particularised and whatever one may think about the Tribunal’s questioning of the applicant, it cannot be said that the conclusions arrived at were not logical conclusions based upon the responses received.  The applicant claims that the Tribunal failed to make any finding as to whether he would be persecuted if he attempted to participate in unregistered religious activity in China. 

15. As I have already stated, the Tribunal at [CB98] put to the applicant certain independent country information concerning the situation of the church in China, referring to co-existence and co-operation between official and unofficial churches.  It took the view at [CB104] that:

    “The applicant does not make any further specific claims in this regard that have not already been dealt with by the Tribunal and from the applicant’s unsupported claims the Tribunal has not been able to satisfy itself that there is any reason to believe that there is a real chance he would experience serious harm amounting to persecution for a convention reason o this basis, if he were to return to China.”

    As Ms Wong says in her helpful written submissions:

    “The Tribunal concluded that the applicant was not a Christian, so presumably there would be no reason for him to return to China and continue working in an unofficial church.”

16. The final matter raised by the applicant also relates to the possibility of persecution on his return to China. For the reasons already given, I am of the view that the Tribunal, whilst not being required to make an assessment, did in fact do so. 

17. Having considered all the matters raised by the applicant in his written submission and his application, as well as what he told me today, I am unable to be satisfied that the Tribunal reached its decision as a result of falling into jurisdictional error. In those circumstances I dismiss the application and order that the applicant pay the respondent’s costs which I assess in the sum of $4000. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: