SZGYM v Minister for Immigration
[2008] FMCA 1270
•8 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGYM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1270 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – Tribunal disregarding applicant’s conduct in Australia pursuant to s.91R(3) of the Migration Act 1958 (Cth) – whether the Tribunal erred in taking into account the motivation for that conduct considered. |
| Migration Act 1958 (Cth), ss.91R(3), 424A |
| SZGDA v Minister for Immigration [2007] FMCA 1152 SZGYM v Minister for Immigration [2007] FMCA 1418 SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923 SZIBK v Minister for Immigration [2006] FMCA 1167 SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451; (2008) 102 ALD 226; [2008] FCAFC 105 SZMCY v Minister for Immigration & Anor [2008] FMCA 934 |
| Applicant: | SZGYM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 949 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 8 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 949 of 2008
| SZGYM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 25 March 2008. The Tribunal affirmed the decision of a delegate of the minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. The background facts relating to the applicant’s arrival in Australia, her protection visa claims and the Tribunal’s decisions on them are set out in the Minister’s written submissions filed on 1 September 2008. I adopt as background for the purposes of this judgment with minor amendments paragraphs 3 through to 14 of those written submissions together with the accompanying chronology:
The applicant, a Chinese citizen, arrived in Australia on 24 October 2004.[1]
[1] CB 14
On 3 December 2004 the then Department of Immigration and Multicultural and Indigenous Affairs (Department) received an application for a protection visa from the applicant.[2]
[2] CB 1
On 8 February 2005 a delegate of the Minister refused the application for a protection visa. [3]
[3] CB 32
On 14 March 2005 the Tribunal received an application for review of the delegate’s decision.[4]
[4] CB 43
On 28 June 2005, after conducting an oral hearing with the applicant (and her husband and son) the Tribunal affirmed the delegate’s decision.[5] That decision was quashed on 12 November 2007 by order of Graham J, and the matter was remitted to the Tribunal for consideration according to law: SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923.
[5] CB 81, 100
After a further oral hearing was conducted on 6 February 2008, the Tribunal once again affirmed the delegate’s decision on 17 March 2008.[6]
[6] CB 87, 106.
On 11 April 2008 the applicant filed an application for an order to show cause in this Court.
Applicant’s claims
The applicant set out brief written claims in her protection visa application: (court book “CB”) 18. In essence, she claimed that she had been a member of the Shouters religious group in China and was wanted by Chinese authorities in China on account of her claimed leadership of her local Shouters branch. These claims were later altered in oral evidence given at the second Tribunal hearing conducted on 8 February 2008. There, the applicant said that she had never belonged to the Shouters group and claimed that she had in fact belonged to an underground family church. The applicant also claimed to be a leader of the underground family church. She claimed that both she and her husband had been detained by Chinese authorities as a result of their involvement with this church. The applicant said that she had gone into hiding to avoid further arrest and detention before she fled to Australia in October 2004.
The applicant also claimed to have practised Christianity in Australia by attending the Padstow Chinese Congregational church and religious services from about two months after she had arrived in Australia.
The Tribunal’s decision
The Tribunal set out the details of the written and oral evidence given by the applicant.
In its Findings and Reasons the Tribunal:
a)found that the applicant was not a Christian in China;[7]
b)found that she applicant had not been the member or organiser of an underground family Christina Church or any other religious group in China;[8]
c)accepted that the applicant had attended the Padstow Chinese Congregational church and religious services ‘for at least some period’. However, the Tribunal considered that she had done so for ‘no other reasons than strengthening her claim to be a refugee’ and disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”);[9]
d)found that it did not accept that upon her return to China the applicant would be a practising Christian in China.[10]
The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention.
[7] CB 117.9
[8] CB 118.8
[9] CB 119.5
[10] CB 119.7
Background
Applicant born in China
25 January 1965
Applicant arrived in Australia
24 October 2004
DIAC
Application for protection visa lodged
3 December 2004
Delegate’s decision
8 February 2005
First Tribunal Proceedings
Application for review lodged
14 March 2005
Tribunal decision handed down
19 July 2005
Federal Magistrates Court Proceedings– SYG2162 of 2005
Application for judicial review filed
12 August 2005
Orders and reasons for judgment of Barnes FM
SZGYM v Minister for Immigration [2007] FMCA 1418
23 August 2007
Federal Court Proceedings– NSD1837 of 2007
Notice of appeal lodged
11 September 2007
Orders and judgment of Graham J remitting matter to Tribunal
12 November 2007
Second Tribunal Proceedings
Tribunal hearing
6 February 2008
Tribunal decision handed down
25 March 2008
Federal Magistrates Court Proceedings – SYG949 of 2008
Application for judicial review lodged
11 April 2008
Court book filed and served
15 May 2008
Directions hearing
16 May 2008
Show cause hearing
28 July 2008
Hearing before Driver FM
8 September 2008
These proceedings began with a show cause application filed on 14 April 2008. The applicant continues to rely on that application. The application makes unparticularised assertions of unfairness. The application is supported by a short affidavit which I accepted as a submission. I received as evidence the court book filed on 15 May 2008.
I conducted a show cause hearing in this matter on 28 July 2008. At that time I ordered the Minister to show cause why relief should not be granted in relation to the issue of whether the tribunal breached s.91R(3) of the Migration Act by taking into account the applicant’s conduct in Australia in support of its finding that the applicant would not practise Christianity in China. The Tribunal had rejected the applicant’s factual claims of having practised Christianity in China. The Tribunal accepted that the applicant had attended church services in Australia. The Tribunal dealt with that matter in the following way (CB 118):
The Tribunal has considered the applicant’s claimed practise of Christianity in Australia. The applicant has claimed that she began attending church services in Australia 2 months after her arrival and has regularly attended since that time. The applicant has provided a letter from Reverend Dominic Ku confirming that she attends church services. The letter does not refer to the dates on which the applicant commenced attending church services. The Tribunal considers that whilst the applicant was aware of some aspects of Christianity, her knowledge of the church services and other basic aspects of Christianity such as the Last Supper was generally limited. The Tribunal does not accept that the applicant’s level of knowledge, even having regard to her illiteracy, poor memory, anger at being “suspected” of not knowing sufficient details in relation to Christianity, is consistent with her claim to have attended church in Australia for some 4 years. The Tribunal is of the view that there would have been considerable opportunity during 4 years of church services for discussion of aspects of Christianity, and listening to other persons reading religious materials and singing hymns. In such circumstances, the Tribunal would expect that if she had attended church services over the course of 4 years, even taking into account her illiteracy, she would have acquired a significantly greater knowledge of the hymns and bible readings and other aspects of Christianity than that exhibited at the Tribunal hearing.
Nevertheless, the Tribunal is prepared to accept that the applicant has attended the Padstow church and religious services for at least some period. However, in determining whether actions taken in Australia are relevant in considering the well-foundedness of an applicant’s claims to fear persecution, regard must be had to the provisions of s.91R(3) of the Migration Act. This provides that in determining whether a person has a well founded fear of persecution for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. The Tribunal considers that whilst the applicant has attended some church services and acquired some basic knowledge of aspects of Christianity, the applicant has done so for no other reason than strengthening her claim to be a refugee. The Tribunal does not accept that the applicant has genuinely become a Christian in Australia. The Tribunal has found that the applicant is not a Christian and did not practise Christianity in China and as such is not satisfied for the purposes of s.91R(3) that the applicant attended church services in Australia otherwise than for the sole purpose of strengthening her claim to be a refugee. Accordingly, pursuant to s.91R(3), the Tribunal must disregard the applicant’s conduct in Australia.
The Tribunal therefore does not accept that the applicant was a member of an underground church or was a practising Christian in China and does not accept that she has been perceived as such by the Chinese authorities. The Tribunal does not accept that the applicant has ever suffered harm in China as a result of her religion or for any other Convention reason. Nor does the Tribunal accept that if the applicant returns to China now or in the reasonably foreseeable future that she will be perceived to be a member of any underground Christian Church, including the Shouters or the Family church, or will be perceived to be a Christian. Given that the Tribunal has not accepted that the applicant attended church services in Australia for any other reason than strengthening her claim to be a refugee, the Tribunal does not accept that she will be a practising Christian in China. As the applicant has not claimed any other reason for fearing return to China, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason if he returns to China. (emphasis added)
The Minister makes the following submissions in relation to that issue:
The words at CB 119.8 “Given that the Tribunal has not accepted that the applicant attended church services in Australia for any other reason than strengthening her claim to be a refugee, the Tribunal does not accept she will be a practicing Christian in China” give rise to a question as to whether the Tribunal offended the principles established in SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451; (2008) 102 ALD 226; [2008] FCAFC 105. In SZJGV the Full Court left open the question of whether the obligation to disregard any relevant conduct to which s 91R(3) had applied extended to reasoning directed to the motivation of an applicant for engaging in the conduct. In SZJGV at [25] the Full Court said:
It may be, in a particular case, as Driver FM was minded to accept in SZIBK and SZGDA, that a distinction might be drawn, for the purposes of s 91R(3), between an applicant’s conduct and the reason or reasons for which that conduct has occurred. It is arguable that the Tribunal is only bound to disregard the conduct. It may be able to rely on the motivation for the conduct for the purpose of bolstering or undermining the applicant’s credibility. Such a distinction may not easily be drawn in many cases. In none of the present cases did the Tribunal either expressly or by implication seek to draw this distinction. A decision on whether or not such a distinction may be drawn for the purposes of s 91R(3) should await a case in which the point is raised.
In the present case, it is clear that at CB 119.8 the Tribunal was impliedly referring to the applicant’s motivation for engaging in the conduct in Australia, rather than the actual conduct itself. The relevant conduct was the attendance at the Padstow Church and religious services for some months: see CB 119.4. That conduct had been addressed earlier in the Tribunal’s reasons and disregarded pursuant to s 91R(3).
Here, at CB 119.8, it is submitted that the Tribunal was effectively saying: ‘because I found that this conduct was not genuinely motivated, I do not believe that the applicant will seek to practice Christianity in China upon her return’. Thus, the Tribunal only relied upon the applicant’s motivation for engaging in the conduct in order to ‘undermin[e] the applicant’s credibility’ insofar as she could be taken to be asserting that she would practice Christianity in China upon her return. The Tribunal’s reasoning should not be construed as taking into account the actual conduct itself. That is especially so when it is clear that the Tribunal itself distinguished between the actual conduct and the genuineness of the applicant’s claimed Christianity in Australia in its reasoning about s 91R(3) at CB 119.5 – 119.6.
Thus, it is submitted that the Court’s observations in SZIBK v Minister for Immigration and Citizenship [2006] FMCA 1167 and in SZGDA v Minister for Immigration and Citizenship [2007] FMCA 1152 that the Tribunal is only bound to disregard the conduct (and not the motivation for entering into the conduct) is correct. It is correct because:
a)it accords with a literal construction of s 91R(3), in that the section refers only to actual “conduct”;
b)it accords with a purposive construction of s 91R(3). See SZJGV at [8] – [17]. There is no reason why Parliament could be taken to require the Tribunal to disregard anything more than the conduct itself. Observations and reasoning about the motivation of an applicant for engaging in conduct in Australia may go to an applicant’s overall credibility. Very often, establishing the credibility or believability of an applicant for refugee status is fundamental to the Tribunal’s inquisitorial task, and its overriding statutory function of ensuring that those entitled to a protection visa receive the protection visa - and that those who are not so entitled do not. Here, it was open to the Tribunal to take into account its adverse finding about the applicant’s motivation for engaging in Christian conduct in Australia as part of its assessment of whether the applicant was a genuine Christian, and the ultimate question of whether she would be persecuted upon her return to China.
In SZIBK the Court noted: “Although the distinction [between conduct itself and information about the conduct] is conceptually difficult and would, in many cases, give rise to practical difficulties, I accept the proposition that the distinction is there to be made”. In this case, it is submitted that the distinction is not a difficult one to draw, when the reasons of the Tribunal are read as a whole. Here, as in SZIBK, the applicant was not making a sur place claim. Here, as in SZIBK, the applicant’s claims about her conduct in China were comprehensively disbelieved before the Tribunal proceeded to consider the claimed conduct in Australia.
Further, the reasoning and results in SZIBK and SZGDA are consistent with the recent reasoning and observations of Tracey J in SZIYG v MIAC [2008] FCA 1143 at [20] – [23]. SZIYG has significant factual similarity to the present case, and the reasoning in that case considered – but distinguished on the facts of that case - the Full Court’s reasoning in SZJGV.
It might also be said in this case, as Tracey J observed in SZIYG at [22] that: “Before the Tribunal made the [relevant concluding observations] it had already concluded that the appellant had not been a practising Christian in China. That being so it was hardly likely that he would join an underground Church or practise Christianity upon return to that country. At best for the appellant the Tribunal’s reference to his Church attendance in Australia constituted an additional reason to support the conclusion to which the Tribunal had already come. It may be, however, that the Tribunal was doing no more than restating its earlier conclusion that the appellant had attended Church in Australia in an effort to enhance his claim for protection”.
I dealt with this issue recently in SZMCY v Minister for Immigration & Anor [2008] FMCA 934, in particular at [7] – [12]. At [12] I said:
The Full Court in SZJGV left open the question of whether a decision-maker was entitled to have regard to the motivation for conduct which was required to be disregarded pursuant to s.91R(3). In SZMBK v Minister for Immigration [2008] FMCA 1101 at [15] I accepted that, hypothetically, in an appropriate case a distinction might properly be drawn between conduct and information about conduct. Likewise, I think a distinction might properly be drawn between conduct and the motivation for conduct. While s.91R(3) requires the Tribunal to disregard conduct engaged in in Australia, if not engaged in otherwise for the purpose than enhancing protection visa claims, I do not think that the section requires the Tribunal to disregard its own conclusion on an applicant’s motivation for conduct in Australia. Therefore, if the Tribunal, in stating that at the time of its decision, the applicant had no genuine commitment to Catholicism or Christianity … was taking into account not only its finding about the applicant's conduct in China but also its finding in relation to the motivation for the applicant's conduct in Australia, I do not think that a breach of s.91R(3) would thereby be established. It would be a case of the Tribunal taking into account the motivation for conduct rather than the conduct itself. I find that there was no breach of s.91R(3) in this case.
The Tribunal’s reasoning in this case was more explicit than in SZMCY. The Tribunal, in my view, left no doubt that it was taking into account the applicant’s motivation for her conduct in Australia. The Tribunal’s finding that the applicant would not be at risk of harm should she return to China for reasons of her asserted religious faith were based upon the Tribunal’s rejection of her having practised the Christian faith in China and the Tribunal’s finding as to her motivation for her conduct in Australia.
The Tribunal, in my view, clearly drew a distinction between the applicant’s conduct in Australia and her motivation for it. The conduct was disregarded once the Tribunal had made a finding for the purposes of s.91R(3). The motivation for that conduct was taken into account in order for the Tribunal to complete its assessment pursuant to the Refugees Convention of whether the applicant faced a well-founded fear of harm in China in the future.
I agree with the Minister’s submissions and confirm the view I expressed in SZMCY that that approach was open to the Tribunal and it did not infringe s.91R(3).
The applicant in her submissions asserted unhappiness with the Tribunal decision. She considers that she is disadvantaged because she says she is illiterate. She also complained about her migration agent. She stressed the genuineness of her religious faith. Her submissions went essentially to the merits of the Tribunal decision. Those are beyond the scope of this proceeding.
To the extent that the applicant claims procedural unfairness, I note that the applicant was invited to a hearing by the Tribunal and that that hearing provided a real opportunity for the applicant to explain her claims and address issues of concern raised by the Tribunal. The Tribunal sufficiently identified for the applicant the essential issues upon which the case would turn.
Ms Clegg, in the course of her oral submissions, properly drew attention to the fact that the Tribunal had noted that the applicant had resiled from a written claim of being an adherent to the Shouter sect in China whereas her husband and son, in separate applications, had also claimed to be Shouters.
It was apparent in the Tribunal’s decision that the inconsistency between the applicant’s written and oral claims was a factor leading to the Tribunal’s adverse credibility conclusion. That issue was raised by the Tribunal in writing with the applicant by letter dated 11 February 2008 (CB 96 to 98). In that letter the Tribunal not only drew attention to the inconsistency between the applicant’s written and oral claims, but also to the inconsistency to the applicant’s oral claims at the hearing and the claims made by her husband and son. In that regard the Tribunal met any obligation it may have had to disclose that inconsistency pursuant to s.424A of the Migration Act. There was in my view no unfairness in the procedures followed by the Tribunal in this matter and no breach of the statutory code of procedure.
I find that the Tribunal decision is free from jurisdictional error. It is, therefore, a private clause decision and the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,000. Scale costs in this instance would be $5,000.
The applicant asserted an inability to pay and, more particularly, an inability to pay in the short term. I will not require payment by any particular time. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 September 2008
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