SZHGV v Minister for Immigration - [2006] FMCA 635

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGV v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 635

MIGRATION – RRT decision – Chinese claimed persecution as a member of ‘Shouters’ Christian sect – Tribunal found his fears not well‑founded – no bias revealed – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Applicant:

SZHGV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2846 of 2005

Judgment of:

Smith FM

Hearing date:

21 April 2006

Delivered at:

Sydney

Delivered on:

21 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Nanson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2846 of 2005

SZHGV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 5 October 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refuge Review Tribunal (“the Tribunal”) dated 29 August 2005 and handed down on 20 September 2005. 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Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are the same as those of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Both 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 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 he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in December 2004 on a visitor’s visa. On 2 February 2005 an application by him for a protection visa was lodged. The application did not disclose the name of any person who had assisted him. It contained a brief typed insertion explaining why the applicant sought protection in Australia so that he did not have to return to his country of nationality, The People’s Republic of China.
He claimed that he was a member of “Shouters”, a sect of Christian believers. He said:
We don’t have formal church; we could only get together for praying and discussion of our religion. We don’t really have the any idea about the difference of a legal church or illegal underground church as we do not have formal church in our area.
He claimed that a friend had been detained when accused of helping to smuggle Bibles from Hong Kong. He also claimed that in July 2004 he had been detained and accused of attending an illegal underground church. His statement said:
As I was the organizer of “shouters” in our area and have had bad record with the police in China, I would have to stay in Australia for protection.
No details were given of these claims, and no supporting evidence was provided.
A delegate refused the application on 10 March 2005, and the applicant applied for review on 15 April 2005. He did not appoint an agent. His appeal form attached an even briefer statement of his claims.
The applicant attended a hearing by the Tribunal on 5 August 2005, and gave some information about his background. He did not maintain his claim of being involved with people engaged in Bible smuggling. He said that from about the age of 30, about 10 years previously, he had left his family farm and commenced a wholesale seafood business in the city of Nanping in Fujian Province. He had lived in that city until leaving China to come to Australia.
He told the Tribunal that he was a Christian, that he did not know why his religion was illegal, and that they did not have a formal church: “they had just had a few friends and they had joined together to pray”. He told the Tribunal he had never had any problems as a result of his religion until July 2004. He gave a description of an incident at that time during a visit to his home town of Fuqing, which is also in Fujian Province:
The Applicant said that this had been in his home town, Fuqing. He said that he had normally lived in Nanping but on this occasion in July 2004 he had returned to his home in Fuqing, some of his friends had come to his home, it had been surrounded by the police and he himself had been taken away by the police as well as his friends. He said that he had rented the place where he had lived in Nanping, mainly for business, but his family had still been in Fuqing. He said that while he had been living in Nanping he had got together with his friends there, normally on Sundays, and they had done things like praying. He said that he had only gone to Fuqing once a year. He said that apart from getting together with his friends in Nanping he had not been involved in any other religious activities. He said that they had only got together to pray, nothing else. He said that they had not read the Bible.
The applicant told the Tribunal that after his release, he had returned to Nanping and had not had any problems there. He explained his departure for Australia by referring to business problems in Nanping as a result of supermarkets starting up.
Under the heading “Findings and Reasons for Decision”, the Tribunal said that it had: “considerable difficulty in accepting that he is a Christian at all”. However, it said that it proposed to assess his claimed fears of being persecuted “on the basis that it is possible, although not certain, that he is a Christian”.
The Tribunal then gave brief reasons for finding against the applicant:
As I put to the Applicant, the information available to me indicates that the policy towards religion in Fujian is quite relaxed, that there are a lot of unregistered churches and that the authorities generally do not trouble small groups of people getting together in their own homes (see Research Directorate, Immigration and Refugee Board of Canada, ‘China: Freedom of religious practice and belief in Fujian province’, 8 October 1999, CHN33002.EX; ‘Report of a fact‑finding mission to Fuzhou by political counsellor, Canadian Embassy, Beijing’, CX42323). While I accept on the basis referred to above that the Applicant was arrested in July 2004 while taking part in a prayer meeting in his home in Fuqing and that he was detained for two months, I note that after his release the Applicant returned to Nanping and that he continued meeting with his friends for prayer in Nanping. The Applicant said that he lived in Nanping and that he only went to Fuqing once a year. He said that he had never had any problems in Nanping. Even accepting the Applicant’s evidence on the basis referred to above, therefore, I do not consider, having regard to the independent evidence regarding the attitude of the authorities in Fujian to small groups of people getting together in their own homes, that there is a real chance that, if the Applicant returns to Nanping, where he was living and where he had his business, he will be persecuted for reasons of his religion if he continues to meet privately with his friends for prayer in the manner he described at the hearing before me.
The Tribunal concluded:
I am not satisfied that the Applicant has a well‑founded fear of being persecuted for a Convention reason if he returns to China now or in the reasonably foreseeable future.
Implicitly in the Tribunal’s reasoning, is an opinion that it was sufficient for the Tribunal to assess the applicant’s risks of persecution if he returned to China by reference to his usual place of residence, being Nanping. The Tribunal has not considered it necessary to address the risks which might accrue to the applicant if he made another visit to Fuqing.
However, in my opinion, that does not reflect a failure by the Tribunal fully to perform its review function by applying the Refugee’s Convention definition to the applicant’s claims. As is more clearly apparent under the principles of internal safe refuge and relocation, it was sufficient for the Tribunal to be satisfied that the applicant would be able to reside at some location in his country of nationality without a real chance of persecution for a Convention reason. In my opinion, no error is shown in the reasoning of the Tribunal in this respect.
The applicant’s application for review contains four grounds:
1.The Tribunal officer had difficulty accepting that I am a Christian at all without sufficient evidence, but bias against me.
2.As the Tribunal officer had bias against me, the officer did not consider my application in full.
3.The Tribunal officer failed to assess the chance of my persecution on my return to China if I attempt to practice unregistered religious activities in China.
4.The Tribunal officer did not believe my claims because of his bias against me, there is not materials or evidence to support its decision.
Since grounds 1, 2 and 4 allege that the Tribunal had “bias against me”, I sought further explanation from the applicant as to what particulars of bias he relied upon. From his response, I consider that his argument, essentially, is that the outcome of his application to the Tribunal itself revealed bias.
However, in my opinion, there is nothing in the Tribunal’s reasoning nor in its procedures which show that it approached the assessment of the applicant’s case with a mind which was closed or might appear to have been closed against its merits. It was the Tribunal’s task to perform its own assessment of the applicant’s evidence and arrive at a definite opinion as to whether his claimed fears were well‑founded. In my opinion, it has performed that task and the decision it arrived at does not reveal bias within the doctrines of either actual bias or apprehended bias (see Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72], and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]‑[32]).
Ground 3, contending that the Tribunal “failed to assess the chance of my persecution on my return to China if I attempt to practice unregistered religious activities in China”, is not particularised in the application. I have considered that issue above and, in my opinion, the contention is not made out.
The applicant filed an amended application containing five particulars of an allegation that: “the Tribunal failed to carry out its statutory duty”. In effect, one argument is presented, which is that the Tribunal failed to comply with its duty to serve a written invitation to comment pursuant to s.424A(1) of the Migration Act, because:
(e)The Tribunal based its findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by S.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
However, I accept the submission of the Minister’s representative that the Tribunal’s reasoning, which I have set out above, clearly does not rely upon any information specifically about the applicant which required the service of a s.424A(1) notice. Its decision was based upon its assessment of the evidence of the applicant given to it at the hearing, and did not take information from the visa application as a reason for affirming the delegate’s decision.
For the above reasons, I have been unable to identify jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision for which relief is barred under s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 12 May 2006