SZGSK v Minister for Immigration - [2005] FMCA 1928

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSK v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1928

MIGRATION – Review of decision by Refugee Review Tribunal – merits review – delay in applying for protection visa – findings of fact – independent country information – s.424A.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 474; 483

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 77 ALD 541 at 552
Weheliye v Minister for Immigration and Multicultural Affairs (2001) FCA 1222 (unreported 31 August 2001)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth of Australia (1999) 197 CLR 510
SZAJF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291

Applicant:

SZGSK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1804 of 2005

Judgment of:

Emmett FM

Hearing dates:

8 December 2005 & 22 December 2005

Date of Last Submission:

22 December 2005

Delivered at:

Sydney

Delivered on:

22 December 2005

REPRESENTATION

The Applicant appearing on his own behalf on 8 December 2005

Counsel for the Applicant:

Mr L. Karp on 22 December 2005

Counsel for the Respondent:

Ms S. McNaughton on 8 December 2005

Solicitors for the Respondent:

Ms K. McNamara, Phillips Fox
8 December 2005;
Mr L. Leerdam, Phillips Fox
22 December 2005

ORDERS

That the Application filed 11 July 2005 is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $5000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1804 of 2005

SZGSK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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”) 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.
The Applicant was born in Longjing City, Jilin Province, Peoples Republic of China (“the PRC”) on 8 December 1962.
The Applicant was born as a Chinese citizen and claims to remain a Chinese citizen.
The Applicant claims to belong to a Korean ethnic group and is a Christian.
The Applicant claims that prior to arriving in Australia he was unemployed.
The Applicant has a wife and daughter born on 7 June 1990, who were residing in the PRC when the Applicant left the PRC.
The Applicant claims that he illegally departed Hai Nan by boat on 6 September 2000.
On 11 May 2005, 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 Act.
The Applicant claimed that if he returns to the PRC he will be unable to freely practice his Christian faith, he may be jailed or mistreated by the Chinese authorities. The Applicant claimed that he was targeted in the PRC for his belief and practices of Christianity, his Korean ethnicity and his political support for Taiwanese independence.
On 13 May 2005, the Delegate refused the application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 17 May 2005, the Applicant lodged an application for review before the Tribunal. On 30 June 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 11 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision upon the following grounds:
“1. The tribunal think I wont be persecuted if I go back to china. because I am not christian leader.
2. The Tribunal think I am not refugee because I lodged application after years I came to Australia. In July 2005 chinese diplomat Chen Yonglin granted protection visa, his application was after 4 years he arriving in Australia. Tribunal think he’s defector. but I left China illegally in 2000. The Tribunal failed to consider my situation.
3. At Tribunal hearing. Tribunal officer misleaded some information I provided. (see page 17)”

Legislative framework

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

The Tribunal had before it the Department’s file, including the protection visa application and the Delegate’s decision record. The Tribunal also considered the material referred to in the Delegate’s decision, and other material available to it from a variety of sources.
The Applicant gave oral evidence to the Tribunal on 9 June 2005.
The Applicant claimed persecution on the grounds of his Christian religion or his imputed Christian religion (by promoting his father’s house church), his Korean ethnicity, his political opinion in support of Taiwanese independence arising out of his departure from the PRC illegally and the fact that he applied for a protection visa and has not repaid a debt.
In relation to the Applicant’s claim to fear persecution based on his religion, the Tribunal did not accept his claims of turning to Christianity prior to leaving the PRC. Further, the Tribunal noted that it had read and considered all of the submissions and country information submitted by the Applicant and his advisor but found that it did not assist the Applicant’s claims.
The Tribunal noted that the Applicant claimed that he had been a Christian in the PRC since about 1990 and was questioned once in July 1997. The Applicant claimed that because his father had a house church that he had promoted in the PRC he would be persecuted because of his imputed Christian religion.
However, the Tribunal was not satisfied that the Applicant is a practicing Christian or that he promoted his father’s church. The Tribunal noted that if the Applicant did promote the church it was not satisfied that such promotion had been discovered or that there was a real chance that it would be discovered and that the Applicant would therefore suffer persecution as an imputed Christian.
The Tribunal noted that it was mindful that a persons religious beliefs are personal and that people may have very different levels of understanding and knowledge and may interpret things differently. The Tribunal noted that its questions were not aimed at testing the Applicant’s memory or knowledge but endeavouring to invite him to articulate his beliefs and the basis of those beliefs.
Even allowing for the matters identified by the Tribunal, the Tribunal noted that the Applicant was often “very hesitant in giving evidence about these matters and had great difficulty in responding and in explaining his responses which can only be described as extremely simple and repetitive.” The Tribunal noted that the Applicant responses indicated virtually no understanding of worship or faith and was able only to repeat a couple of almost meaningless generalities. The Tribunal therefore was not satisfied that the Applicant was a practicing Christian in the PRC or that he promoted his father’s church orally.
Further, the Tribunal was not satisfied that the Applicant is a committed practising Christian or that he would practice upon return to the PRC. The Tribunal noted that the Applicant had only attended church in Australia 3 or 4 times a year even though he was free to attend as many services, bible studies and other religious activities as he wished. The Tribunal did not accept the Applicant’s explanation that he did not do so because he was busy. The Tribunal noted that since being in Villawood, the Applicant had attended four services, two immediately prior to the Tribunal hearing and two immediately after the Tribunal hearing. For those reasons, the Tribunal found that the Applicant attended those services merely to try and enhance his protection visa application.
The Tribunal also noted that, even if the Applicant had been questioned once in 1997 about promoting Christianity, it was not satisfied that the one incident of questioning was so serious as to amount to persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol. For those reasons, it held that any fear held by the Applicant of persecution for reason of an imputed Christian religion is not well founded. In reaching that conclusion, the Tribunal had regard to the Applicant’s evidence that his family had not suffered any serious problems in the last few years and there was nothing to suggest that his father had ever had any serious problems from the authorities. The Tribunal noted that such evidence is consistent with the independent country information before it in relation to house churches.
The Tribunal also considered the material submitted by the Applicant and his adviser on the May 2005 raid on house churches in Chang Chun but was not satisfied that those raids gave rise to well founded fear of persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol in respect of the Applicant. The Tribunal noted that the independent country information that it accepted made no mention of ethnic Koreans. The Tribunal noted that it preferred that independent country information over any article submitted by the Applicant because the translation of that article was unsourced even though the Applicant alleged it referred to Koreans.
The Tribunal found that there was nothing to suggest that house churches in the Applicant’s home area have been targeted. Accordingly, the Tribunal was not satisfied that the Applicant’s fear of persecution by reason of his religion or imputed religion is well founded.
The Tribunal was not satisfied that the Applicant suffered harm amounting to persecution or that he has a well founded fear of persecution if he were to return to the PRC by reason of his Korean ethnicity. The Tribunal based that finding on the fact that the Applicant told the Tribunal that he had been sacked from his job in 1992 for reasons of his ethnicity, although he said that he did not know why he was sacked. The Tribunal noted that even if he was sacked for reason of his Korean ethnicity in 1992, the Tribunal was not satisfied that this was so serious as to amount to persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol. The Tribunal noted that the Applicant did not claim to have been sacked for reason of his ethnicity in his application for a protection visa and noted that he was employed until he came to Australia as a casual driver.
The Tribunal noted that it had regard to the adviser’s submissions in relation to material from January 2003 that indicated invisible discrimination by ethnic Hans in the PRC generally. However, the Tribunal noted that neither the Applicant’s own evidence of independent country information located by the Tribunal suggested that ethnic Koreans, particularly those such as the Applicant who live in the Yanbian Korean Autonomous Prefecture, are persecuted for reason of their ethnicity.
The Tribunal was not satisfied that the Applicant suffered persecution in the past or that his fear of persecution by reason of his political opinion or imputed political opinion in support of Taiwanese independence is well founded. The Tribunal found that the opinion of the Applicant in respect of Taiwanese independence was not a view that he had ever claimed to publicise. The Tribunal noted that his oral evidence about whether anyone knew his opinion on the matter was inconsistent and noted that he knew little about the issue other than the fact that Taiwanese people want independence. Further, the Tribunal noted that the Applicant does not claim to have suffered persecution for reason of his opinion in respect of Taiwanese independence.
The Applicant also claimed fear of persecution on return because he had left the PRC illegally and applied for a protection visa. However, the Tribunal noted that the Applicant did not expand on those claims. The Tribunal noted that at the hearing, the Applicant could not explain why he thought he would have a problem as a failed asylum seeker or how the Chinese authorities would know he was an asylum seeker. The Tribunal noted that the Applicant merely stated that he was sure he would be jailed on return because he left illegally, however, there was nothing to suggest that the Chinese authorities were aware of his application or that if they became aware of it then it would be of interest to them. The Tribunal was not satisfied, on the Applicant’s own evidence, that his fear of persecution as an asylum seeker was well founded, nor did independent country information referred to by the adviser support such a claim.
In relation to his having left the PRC illegally, the Tribunal put to the Applicant, that if he has breached China’s laws of entry and exit, and if this is discovered, he may well be prosecuted or penalised but there is nothing before the Tribunal other than an assertion to suggest that this is other than the general application of generally applicable laws. The authorities are clear in respect of laws of general application and penalty as a result of breach of those cannot be persecution for a Convention reason (Applicant S v Minister for Immigration and Multicultural Affairs (2004) 77 ALD 541 at 552; Weheliye v Minister for Immigration and Multicultural Affairs (2001) FCA 1222 (unreported 31 August 2001) at [51]-[53]; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 245). Accordingly, the Tribunal was not satisfied that the Applicant’s fear of persecution having left the PRC illegally and or being a failed asylum seeker is well founded.
In relation to the Applicant’s claim that he was being sought by the government in the PRC as at 9 May 2005, the Tribunal did not accept that the Applicant was or is being sought for a Convention reason. Whilst the Tribunal noted that the Applicant had not made such a claim in his application for a protection visa and his other oral evidence did not support such a claim, the Tribunal noted that it drew no adverse inference regarding the Applicant’s credibility as a result.
Moreover, the Tribunal was not satisfied that the Applicant’s fears of persecution, if he were to return to the PRC, are genuine because the Applicant did not attempt to seek protection or advice, since his arrival in Australia in September 2000, until many months after he was detained in Villawood in December 2004. The Tribunal noted that the Applicant had various explanations, none of which it accepted for reasons identified by the Tribunal. Those finings were open to the Tribunal on the material before it.
The Tribunal acknowledged that there was no reason why a debt that the Applicant may have could not coexist with fears of persecution on Convention grounds. However, even if the consequence of the debts or personal matters included being jailed for non payment, the Tribunal noted that that is the operation of the law in the particular circumstances of the Applicant’s debt and does not give rise to persecution for reason.
The Tribunal concluded by saying that it was not satisfied, even taking the Applicant’s other claims cumulatively, that the Applicant has a well founded fear of persecution for a Convention reason if he were to return to the PRC.
The Tribunal also noted the Applicant’s claim that he may have come to the attention of Chinese government officials who recently conducted interrogations of detainees at Villawood. However, the Tribunal rejected such a claim on the basis that the Applicant did not claim to be questioned by the officials and, in any event, although this incident occurred in Villawood in May 2005 the Applicant made no mention of it as his 9 June 2005 Tribunal hearing and denies having sought a travel document from the Chinese authorities.
Accordingly, noting that it had considered the Applicant’s evidence as a whole, the Tribunal was not satisfied that the Applicant was a person to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol.

The proceeding before this Court

The Applicant was unrepresented before this Court at the hearing although he had the assistance of an interpreter.
The Applicant relied on his application filed 11 June 2005 (“the Application”) and confirmed that he had filed other document in the proceeding despite directions having been made by consent on 2 August 2005.

Ground 1 – “The tribunal think I wont be persecuted if I go back to china. because I am not christian leader.”

The Applicant was invited to say whatever he wished in support of this ground as no particulars have been otherwise provided. The ground, otherwise, seeks merits review which, of course, this Court cannot undertake (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [10]).
The Applicant submitted that he had recently contacted friends in the PRC and had been told that some other friends had been recently arrested. The Applicant also said that he was 100% sure he would be persecuted and that he would like to stay in Australia and asked the Court to reconsider the Tribunal decision. Such a request is not within the jurisdiction of this Court and, as was explained to the Applicant, this Court only has power to interfere with the Tribunal decision if satisfied that the decision is affected by error.
The Tribunal considered in detail the Applicant’s claims of fear of persecution by reason of his Christianity. The Tribunal noted the reasons why it did not accept the Applicant’s claims and was not satisfied that the Applicant had been involved with Christianity since about 1990. Further, the Tribunal found that the Applicant had only attended services whilst in detention at Villawood to try and enhance his application for a protection visa claims. The Tribunal gave reasons for those findings and such findings were open to the Tribunal on material before it.
This ground discloses no reviewable error and is rejected.

Ground 2 – “The Tribunal think I am not refugee because I lodged application after years I came to Australia. In July 2005 chinese diplomat Chen Yonglin granted protection visa, his application was after 4 years he arriving in Australia. Tribunal think he’s defector. but I left China illegally in 2000. The Tribunal failed to consider my situation.”

The Applicant submitted that the reason why he took so many years to apply for asylum was because he was struggling and he was scared that people may cheat him and that he did not understand what he could do until he met someone in an English class.
However, the Tribunal rejected the various explanations given by the Applicant in respect of the delay in seeking protection. Again, that is a finding of fact that was open to the Tribunal on the material before it and for which the Tribunal provided reasons.
The Applicant’s reference to the Chinese diplomat Chen Yong Yin and the fact that he allegedly made his claim for protection 4 years after arriving in Australia, is not relevant to the Applicant’s situation. The Tribunal is bound to consider the claims of the Applicant and make findings in respect of the evidence and material before it.
The Tribunal is entitled to have regard to the conduct of the Applicant in seeking protection in considering whether or not the Tribunal is satisfied that the Applicant has a well founded fear of persecution for a Convention reason. It is plain from the Tribunal’s consideration of this issue, that it was the various explanations provided by the Applicant, none of which found favour with the Tribunal that caused the Tribunal to place the weight that it did in respect of the Applicant’s conduct. the Tribunal was entitled to place what weight it wished on both the delay of the Applicant in seeking protection and any explanation provided by the Applicant for his conduct in that regard. Particularly, the Tribunal noted that the Applicant claimed that he thought he could stay for several years as he did not have any documents of identification.
The Tribunal noted that he obtained documents about his identity and citizenship from the Yanbian Notary in October 2004, yet still did not apply for protection for many more months.
The Tribunal further noted that the Applicant claimed that he did not apply for protection earlier because he feared being caught. However, the Tribunal noted that even after he was detained he delayed another seven months before applying for protection.
The Tribunal also noted that the Applicant claimed that he never thought of refugee status and did not know immigration law.
The Tribunal rejected those explanations as it found that he was not without resources and assistance especially from the ethnic Korean Chinese community in Australia.
The Tribunal is entitled to place what weight it considered appropriate in respect of the evidence before it and make findings accordingly (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576; SZAJF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [34]).
Accordingly, this ground is rejected.

Ground 3 – “At Tribunal hearing. Tribunal officer misleaded some information I provided. (see page 17)”

The Applicant submitted that the Tribunal’s finding that an incident that occurred in May 2005 in Changchun did not give rise to a well founded fear of persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol in respect of the Applicant because the Applicant’s home in Jilin is several hundred kilometres from Changchun.
The Applicant submitted that Jilin and Changchun are close and that what the Tribunal stated was wrong.
The Applicant submitted that racism was a serious problem and that he was in the minority.
However, the Tribunal made its findings based on independent country information before it.
It was open to the Tribunal to prefer the independent country information rather than the evidence of the Applicant and his adviser (NAHI at [10]). The Tribunal noted that it preferred other material over that submitted by the Applicant’s adviser as that material was unsourced translation of a Chinese language newspaper published in Sydney. The Tribunal also noted that the Applicant’s non tertiary background was different to those that were subject of the article submitted by the adviser that related to university related influences in Changchun. It also noted that there was no mention of ethnic Koreans. The Tribunal found, on the material before it, that the Applicant’s home area of Yanbian Korean Autonomous Prefecture is the only Korean autonomous prefecture in the PRC and there was nothing to suggest that house churches in that autonomous prefecture had been targeted.
Those findings were open to the Tribunal on the material before it and the Tribunal has provided reasons for those findings.
Accordingly, this ground is rejected.

Conclusion

The Tribunal has identified in its decision with great detail the claims by the Applicant and the history of the review process.
The Tribunal referred to a s.424A letter, given to the Applicant at the hearing, in which it noted that it explained that the Applicant had the opportunity to respond in writing by the mandatory deadline. The Tribunal noted that the Applicant did not wish to comment orally. The Applicant and his adviser responded to the invitation contained in the s.424A letter and made submissions. The Tribunal also noted that the Applicant said that what he had told the Tribunal was the truth. The Tribunal noted that it had provided copies of the entire Department file so that the Applicant now had exactly what the Tribunal had.
The s.424A letter complied with Regulation 4.35 of the Act which provides, relevantly, for a prescribed period of notice commencing on the date upon which notice was given and ending 7 days after the day on which the s.424A notice was given. The Applicant concedes that the s.424A notice complied with Regulation 4.35 of the Act.
The Applicant contends that the Tribunal failed to comply with s.424A(1)(b) of the Act in that the notice did not ensure, as far as is reasonably practicable, that the Applicant understood why it is relevant to the review. However, I note that there is no evidence from the Applicant as to his lack of understanding. Further, his solicitors responded in detail to the notice on 16 June 2005. I am otherwise satisfied that the notice discloses with sufficient particularity the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The notice also makes clear the relevance of that information to the Tribunal. In the circumstances, I am satisfied that there is no issue arising pursuant to s.424A of the Act.
The findings made by the Tribunal, and which are referred to above in these Reasons, were open to the Tribunal on the material before it. Moreover, the Tribunal made clear in its decision its reasons for adverse findings in respect of the Applicant’s claims.
Accordingly, the Tribunal decision is not affected by jurisdictional error and is a privative clause decision with which this Court, pursuant to s.477 of the Act, has no jurisdiction to interfere.
The Application filed 11 July 2005 is dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 22 December 2005