SZHGK v Minister for Immigration
[2006] FMCA 770
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHGK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 770 |
| MIGRATION – RRT – Chinese applicant – claimed persecution as member of ‘Shouter’ Christian sect – disbelieved by Tribunal – separate hearings appointed for wife and husband – no jurisdictional error found. |
| Migration Act 1958 (Cth), ss.424A, 424A(3)(a), 424A(3)(b), 474(1), 483A Judiciary Act 1903 (Cth), s.39B |
| Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZHGL v Minister for Immigration & Multicultural Affairs [2006] FMCA 776 |
| Applicant: | SZHGK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2828 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 5 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the first Respondent: | Ms D Watson |
| Solicitors for the first Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed
The applicant must pay the first respondent’s costs in the sum of $3,000
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2828 of 2005
| SZHGK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 4 October 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 27 June 2003 and handed down on 24 July 2003. The Tribunal affirmed a 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Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding.
The Court's powers under s.483A are the same as the Federal Court's powers under s.39B of the Judiciary Act 1903 (Cth). They are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal's decision and send the matter back to the Tribunal unless I am satisfied that 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 refugee visa.
The applicant arrived in Australia on 1 April 2002, accompanied by her husband and possibly also her son. On 14 May 2005, an application was lodged on her part for a protection visa. The application appointed a migration agent, Ms Orchid Sit, to act on behalf of the applicant. In the section of the form asking the applicant to identify "members of the family unit not included in this application", the applicant referred to her son and to her husband, and said in relation to each: "he has his own application". It was, therefore, clear that those persons were not part of the application presented by this applicant.
The application contained a typed "attachment" answering the questions in the form seeking explanations as to why the applicant sought protection in Australia against return to her country of nationality, the People's Republic of China. It said:
Q40. Why did you leave that country?
I am a member of Shouters. I was involved with smuggling Bibles to (town A), some of my friends have been detained and sentenced to imprisonment, I worried about my safety and came to Australia for protection.
My home town is in (town A). Shouters has about 500,000 followers on the mainland and is one of the 16 underground Christian groups in China. The movement formed in the 1950’s and was banned as a cult by the Public Security Ministry in 1996. Because the Chinese government believes that the group relates to its close liaison with overseas churches.
Late last year, I helped to smuggle Bibles to (town A). Mr. L from Hong Kong was sentenced to imprisonment for two years. Three other members were on trial for smuggling Bibles. I tried to get my visa to leave China as soon as possible. I was also a key person in the membership and was involved with the smuggling of the Bibles. I had to escape to avoid persecution.
Q41. What do you fear may happen to you if you go back to that country?
If I return to China, I worry that I would suffer the same as the other members in China. Yinxi People’s Court in (town A) started the hearing for Mr L’s case. During the hearing, three journalists including a (newspaper) photographer were detained. They were released after the three-hour trial. A lot of other members were also warned that if any evidences against them found, they would be sentenced. I was there’ I witnessed all these happening. I realized that I could not stay in Chian any more.
If I return to China, I would suffer persecution.
Q42. Who do you think may harm/mistreat you if you go back?
The Chinese government may harm and mistreat me if I go back.
Q43. Why do you think this will happen to you if you go back?
As I mentioned above, I am a member of the Shouters. It is one of the 16 underground Christian groups in China. I was involved with smuggling Bible to (town A); I worried about my safety. If I continue to stay there, I would suffer the same as the other members in China.
Q44. Do you think that authorities of that country can will protect you if you go back? If not, why not?
It is the government, which banned the Shouters. It is the government, which persecute the members of Shouters. The authorities of China would not protect us if I go back.
There are 20 secret meeting places in downtown (town A) where followers gather for about 90 minutes weekly or even daily. To limit the risk of arrest, usually less than 20 follower gather each time.
The Bibles that we smuggled have footnotes. We study it by ourselves without the help of others. Therefore, they have been subjected to lot of pressure from the Government, we have so many members had been arrested and jailed for our religious beliefs.
No other information about the applicant's refugee claims was contained in the form, and no supporting evidence or written submissions was ever presented to the Department or to the Tribunal by or on behalf of the applicant.
A delegate sent letters to the applicant and her agent requesting her attendance at an interview. This was postponed once at the request of the agent, but the delegate indicated in his reasons in relation to the second appointment that "she chose not to attend".
The delegate refused the application on 5 July 2002, and on 6 August 2002 an application for review was lodged in the Refugee Review Tribunal. The application appointed Ms Orchid Sit as the applicant's "authorised recipient to act on my behalf in relation to this case". In the section inviting "your reasons for making this application" there was attached a brief typed paragraph which said:
I am a member of “shouter”. I helped to smuggle Bibles to (town A). And I was involved with underground religious activities in (town A) which was prohibited in China. For that, I worried about my safety and I came to Australia for protection. In China, if you are involved with underground religious activities you are subject to persecution, and would be sentenced to imprisonment. I can not return to China, if I return there, I will be imprisoned if they find the evidence against me in smuggling bibles to (town A). I hope my application can be reassessed.
No suggestion was made in the review application, or in any other communication to the Tribunal, that the applicant wished her application to the Tribunal to be considered in company with any other application being lodged with the Tribunal. In fact, as I shall explain in a judgment I am about to give in a matter involving the applicant's husband, an application was lodged at the same time seeking review of a delegate's decision addressing a separate application by the husband which was in identical terms. No request for a concurrent hearing or decision on this application was made.
By a letter dated 23 May 2003 sent to the applicant and her agent, including to the applicant's residential address, the applicant was invited to attend a hearing on Friday, 20 June 2003 at 1pm. The form informed the applicant:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
It asked the applicant to complete a "Response to Hearing Invitation Form", and in particular, to:
complete the "Witnesses" part of the form if you want the Tribunal to get oral evidence from another person; please note that the Tribunal does not have to get evidence from any person you name.
The form was returned to the Tribunal, indicating that the applicant did want to attend, did want an interpreter, and answering “no” to the question "Do you want to bring someone else with you to the hearing?"
The applicant did attend the hearing, and the hearing information form indicates that Ms Orchid Sit attended with the applicant. There is no evidence suggesting that the husband was also present or made available to give evidence. The hearing is recorded as having lasted 52 minutes.
There is no evidence before me as to what occurred at the hearing, apart from brief reference in the Tribunal's reasoning, which I shall set out below. The applicant has been given an opportunity to present to the Court a transcript of the hearing, and directions expressly allowing this were made by me and explained to the applicant when she attended the first Court date on 8 November 2005. She did not take that opportunity.
In its statement of reasons, the Tribunal gives only a summary of the effect of the applicant's oral evidence under the heading ‘Claims and Evidence’:
The Applicant states that she is a Chinese national. She was born in Fujian in 1962. She came to Australia in April 2002. She stated that she and her husband worked at assembling doors made of plastic. It was their business. She claims to be unwilling to return to China as she fears that she will be persecuted because of her religion.
She claims that she will be arrested and imprisoned for helping to smuggle bibles from Shenzhen to (town A) up until October 2001. The Applicant assisted by lifting the bibles in and out cars used to transport them. The Applicant did this two or three times. She did not drive the vehicles.
The Applicant assisted in smuggling the bibles because bibles are hard to come by in China. She is a Christian. She has been a Christian all her life, her mother and grandmother were Christian also.
In Australia the Applicant attends a church at Lidcombe most of the time. She does not know it’s name. She states that she is not Catholic, she is a Christian.
In China the Applicant had been a practising Christian for nearly forty years. She was asked if she had come to any harm as a result of this. She stated that in the 1970’s, when she was at school, the authorities told her that she could not attend Church during the day, so her mother told her to go to church at night.
She then said that they were not allowed to worship openly. They used to gather at night.
The Applicant states that in October 2001 some of those who smuggling bibles were arrested. She is afraid that they will express her name.
She was asked how she was able to leave China if she was a suspect in bible smuggling. She states that she was lucky, she was not arrested at the time, and not between October 2001 and March 2002 when she left for Australia.
She states that she was waiting to be arrested.
The Applicant was asked if she belonged to the Christian group known as the Shouters. She said yes. She did not know why they were called Shouters.
Asked if she knew other applicants with the same adviser who had all made identical claims, she said she did not.
The Applicant’s adviser stated that these applicants all introduced themselves to her, one from the other, she definitely did not find them through advertising. They all had a fax which was to form the basis of their claims.
Plainly, this is not a complete account of the whole of the questions and answers which were given at the hearing.
The Tribunal set out a lengthy extract from the United States State Department International Religious Freedom Report 2002 concerning China. This referred to varying measures of regulation of unregistered religious bodies in China, amounting at times to harassment and persecution. Reference is made to groups determined to be "cults" as receiving particularly severe attention. Reference is made to one such group as being "'the Shouters' (founded in the United States in 1962)". Reference is also made in this report to measures taken by Chinese authorities in relation to the activities of members of unregistered Christian churches generally. For example, the report said:
Many house churches, which generally are made up of family members and friends, conduct activities similar to those of home Bible study groups, and were tolerated by the authorities as long as they remained small and unobtrusive. House churches reportedly encounter difficulties when their membership grows, when they arrange for the regular use of facilities for the specific purpose of conducting religious activities, or when they forge links with other unregistered groups.
The report referred to the demand for Bibles and shortages for these in China, and said that some smuggling occurs.
The Tribunal also referred to further country information specifically about the treatment of members of "Shouters" congregations in China, including a description of its origin and why they are so named. This appears to derive from their practice of "vociferous, mantra-like shouting of Bible verses". Reference is made to a report about smuggling of Bibles specifically prepared for this sect. The report said that these were: “heavily annotated with the sect's own textual interpretations”. A cable said:
"The Shouters" are classified as an illegal "evil cult", the same term applied to Falun Gong.
The Tribunal's reasons for not being persuaded that the applicant herself was a Shouter were given briefly under the heading ‘Findings and Reasons’:
I am satisfied that the Applicant is a Chinese citizen and that she arrived in Australia in 2002. She may have been a practising Christian in China. If she were I am not satisfied that she has come to any harm or been prevented from practising her religion. I found her evidence on that point unpersuasive.
I accept that some Christians and in particular, members of the religious group known as the “Shouters”, have been arrested, detained, and otherwise persecuted in China.
I note that the Applicant claims to belong to the Shouters, but not to know why they are so called. I do not accept this. I found the Applicant’s evidence to be inconsistent and unconvincing. In the circumstances I am not satisfied that the Applicant’s claims are true. I do not accept that the Applicant has been persecuted in the past.
I do not accept that the Applicant was a “Shouter”, or that she was involved in smuggling bibles, or that she has fled China to avoid harm, or that there is any real chance that she will be persecuted should she return.
I am not satisfied that the Applicant has a well founded fear of persecution
I have considered the Tribunal's reasoning in the light of the material that was before it, including the parts that I have extracted above, and consider that the Tribunal's conclusion was open to it on the evidence that was before it. I am unable to identify jurisdictional error affecting its reasoning or procedures.
The applicant filed an application in this Court on 4 October 2005. She has not explained the delay in coming to Court. However, the Minister's submission does not take issue with that delay, and it appears that it may be explained by an application to the Minister for discretionary consideration under s.417. This was made by the applicant in September 2003, and appears to have been still outstanding in September 2005. It is unnecessary for me to consider whether there are discretionary reasons for the Court to refuse relief since, as I have indicated, I have not been able to find jurisdictional error affecting the Tribunal's decision.
The application filed by the applicant continues a history of duplication between her case and her husband's case. Thus, it contains irrelevant grounds of review alleging error by reason of the Tribunal proceeding without a hearing – which occurred in her husband’s case only. In relation to this, the applicant has sworn an affidavit containing the patently incorrect statement: “The migration agent didn't allow me to attend the hearing at RRT”.
An amended application filed by the applicant does contain two grounds relating to her case.
The first ground is that the Tribunal "failed to comply with s.424A of the Act". However there is no substance to this contention, which is unparticularised. In my opinion, the Tribunal's reasoning which I have extracted above relies upon an assessment of only the evidence given to it by the applicant at the hearing in the light of general country information. The information used by the Tribunal was therefore within the exemptions covered by s.424A(3)(a) and (b).
The second ground in the amended application is that the Tribunal's decision "is obviously ill-founded without any substantial evidences excepting its erroneous findings based". The criticisms made, however, go only to the merits of the Tribunal's factual assessments.
I reject the contention that the Tribunal's reasoning was "obviously ill-founded" if that is intended to invoke a ground of jurisdictional error based on unreasonableness. In my opinion, its decision cannot be characterised “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (c.f. Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]).
An outline of submissions was filed by the applicant, which is a joint submission relating to her case and her husband's case, which were listed together today. Some parts of it are plainly only referable to the circumstances of his case. In relation to the applicant's case, five relevant contentions are made.
The first two are:
The Tribunal has in fact refused to accept that I am a member of "Shouters". Such an assessment made by the Tribunal mainly biased on two reasons as follows
1.1 During the hearing I was … give an opportunity at hearing to describe any distinctive features … relevant to my claim but the Tribunal has in fact, believed that I failed to do so and
1.2 Invited by the Tribunal to provide further information on what distinguished me as a shouter after the hearing. I described typical “shouter” prayer practices.
I have difficulty understanding what point is made in paragraph 1.1. If it is a contention that bias was shown by something that occurred at the hearing, then no evidence has been led to establish anything which would or might show actual bias or an appearance of a closed mind by the Tribunal to the applicant's claims. I do not accept that bias on either test has been established (c.f. Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 at [27-32], and Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72]).
The contention in paragraph 1.2 that the applicant gave evidence showing an awareness of why the Shouters are called by that name, is not supported by evidence. I am not able to conclude that it was not open to the Tribunal to arrive at its finding that the applicant displayed inadequate knowledge of the sect to which she claimed to belong.
A third contention in the written submission is:
The applicant and wife applied for review of that decision on 6 August 2002 but the member to give us different time and date for the hearing day. Because of the migration suggestion the Applicant lodged the application separate to the Refugee Review Tribunal for Review that decision but the member should give the applicant the same day for the hearing day as the Applicant and wife member of “shouter” but the member made such decision and reason on the different day. The member should put the matter together for the another hearing day as well the applicant can give more information and evidence. The member just rely on the country information made such decision without the applicant comment on a matter.
It is correct, as my reasons in the case of the husband explains (see SZHGL v Minister for Immigration & Multicultural Affairs [2006] FMCA 776), that the husband was invited to a hearing subsequent to that held in relation to the wife. However, in my opinion this did not represent any failure by the Tribunal to follow a procedure required by the Act. Indeed, on one view of the legislation, it was required to hold separate hearings. Although I accept that the Tribunal might have had power to hold a joint hearing if requested by the parties, there is no evidence that such a request was made by either the applicant or her husband or their agent. Nor is there any evidence that the applicant or her agent requested an adjournment of the hearing in her matter. In those circumstances, I do not consider that any jurisdictional error has been established.
The other contentions in the applicant’s written submission do not relate to this applicant, or I have already dealt with them above.
The applicant when appearing before me today had difficulty giving a coherent answer to anything I asked her. She made no submission identifying any further potential jurisdictional error or argument which I have not addressed above.
For the above reasons, I am not persuaded that the Tribunal's decision was affected by jurisdictional error, and it was therefore a privative clause decision for which relief is barred under s.474(1) and I must dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 1 June 2006
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