SZHZI v Minister for Immigration

[2006] FMCA 662

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 662

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a Christian in China – alleged errors and misunderstandings by the RRT leading to adverse credibility findings – no reviewable error found – application dismissed.

PRACTICE AND PROCEDURE – Observations on the evidentiary impact of a show cause order.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A

Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
NAHI v Minister for Immigration [2004] FCAFC 10
NAOA v Minister for Immigration [2004] FCAFC 241
Re Refugee Review Tribunal; ex parte Aala (2000) 2005 CLR 82

Applicant: SZHZI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3852 of 2005

Judgment of: Driver FM

Hearing date: 4 May 2006

Delivered at: Sydney

Delivered on: 4 May 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms L Clegg

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and Item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3852 of 2005

SZHZI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The decision was handed down on 24 November 2005.  The RRT affirmed a 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.  Relevant factual background is set out in paragraphs 5 to 13 of the Minister's written submissions.  I adopt those paragraphs with minor amendments as background for the purposes of this judgment:

   The applicant, a citizen of China, arrived in Australia on 19 December 2004.[1]

   [1] court book, page 3

   On 31 January 2005 the then Department of Immigration and Multicultural and Indigenous Affairs (Department) received an application for a protection visa from the applicant.[2]

   [2] court book, page 1

   On 13 April 2005 a delegate of the Minister refused the application for a protection visa. [3]

   [3] court book, page 34

   On 18 May 2005 the RRT received an application for review of the delegate’s decision.[4] On 2 August 2005 the RRT wrote to the applicant, requesting further additional information.[5] The applicant provided some details after an extension of time in which to provide the information was sought and apparently granted.[6]

   [4] court book, page 48

   [5] court book, page 61

   [6] court book, pages 64 - 67

   On 22 September 2005 the RRT wrote to the applicant and informed him that it was unable to arrive at a decision in his favour on the material before it. The applicant was invited to attend a hearing and the applicant attended the hearing on 20 October 2005. [7] 

   [7] court book, page 68

   On 31 October 2005 the RRT made a decision, affirming the decision of the delegate.[8] 

   [8] court book, page 78

   The applicant filed the application for judicial review on 29 December 2005.

   Applicant’s claims

   The applicant made detailed claims about his claim to be a pious Christian and his involvement and activism with an underground Christian church in China. Those claims are set out in a statutory declaration attached to his visa protection application, review application to the RRT, and were also summarised by the RRT in its decision at court book, pages 82 – 84. The RRT also set out further claims/details of the applicant‘s claims arsing out of the dialogue between the RRT and the applicant at the hearing. Put shortly the applicant claimed:

   a)he was introduced to Christianity through a Mr Zhang in the early 1990s, a person with for whom he worked and with whom he was performing his goldsmith apprenticeship;

   b)he was baptised in 1993, after which he began to attend a Bible study group and became an active and pious Christian;

   c)he was questioned by the Public Security Bureau (PSB) in January 1996 about his religious beliefs and activities;

   d)from 1996 he began to be involved with another Bible study group led by Mr Chen. This group published and distributed Christian propaganda material, and he took part in reprinting and distributing the material;

   e)in August 2000 he was arrested and detained having been caught distributing Christian propaganda material. He was mistreated during his detention, and released in September 2000 after Mr Zhang confessed to being the leader and being behind the applicant;

   f)Mr Zhang’s shop was sealed by the PSB and he found it hard to obtain employment. He was often questioned by the PSB about his religious activities and warned not to engage in illegal religious activities;

   g)he obtained alternative employment in Hangzhou, where he lived with a friend of Mr Zhang’s wife, Mr Wang. Mr Wang’s place was a secret gathering place for a Bible study group;

   h)he continued with others to be involved in distributing Christian “propaganda” material;

   i)in mid October 2004 he and 10 others were investigated by the PSB. From October to November 2004 he was interrogated 6 - 7 times but the PSB could not find anything against him;

   j)soon after a Mr Xia Zhing Chen was arrested, Mrs Zhang urged him to escape China;

   k)Mr Chen's confession led to authorities to discover the Bible study group in Hangzhou and led to Mr Wang and 20 key members being arrested. As the applicant was regarded as a founder and leader of the group, his wife and his family and friends were interrogated by the PSB; and

   l)he actively and regularly participated in religious practices in Australia since arriving here.

   The RRT’s decision

   In its reasons and findings the RRT comprehensively set out the dialogue which took place between the RRT and the applicant, and whilst doing so explained the difficulties it had with the applicant’s claims and evidence. The RRT tested the applicant’s claims to have been a pious and active Christian for more than a decade principally by questioning and testing the applicant’s knowledge of Christianity. In particular the RRT:

   a)noted that it found the applicant’s evidence problematic. Much of it was given in a hesitant manner, except for the few occasions he responded to certain questions, in which case the answers appeared to be rehearsed;[9]

   b)observed that the applicant’s responses to questions were indirect, vague and brief, and it did not appear he was speaking based upon personal experience;[10]

   c)observed some of the applicant’s evidence was internally contradictory, and he could not provide the name of the underground Church he had attended without difficulty, and even after a request for that information by the RRT pursuant to s.424;[11]

   d)said it preferred independent evidence about the official church in China to the evidence given by the applicant;[12]

   e)noted the applicant’s answers to various questions about the bible and Christian beliefs and practices were extremely general and hesitant and delivered without any conviction or assuredness. In this respect the Tribunal noted that the applicant could not tell the Tribunal the essence of what it means to be Christian. Nor could he specify what Christians celebrated at Easter;[13]

   f)taking the above matters into account cumulatively, found that the applicant was not a witness of truth, and that his claims to be a Christian, to have studied the Bible and that he was involved in an underground Christian church were fabricated;[14]

   g)as a result did not accept that the applicant was harmed by Chinese authorities or that his family or friends were interrogated by the PSB because of his religious activities;[15]

   h)accepted that the applicant participated in religious activities in Australia but given the applicant’s lack of credibility found that the applicant engaged in those activities for the purpose of strengthening his claim to be a refugee. Accordingly the applicant’s conduct in Australia was disregarded pursuant to s.91R(3) of the Act;[16] and

   i)concluded that the applicant does not have a well founded fear of persecution in China on account of his religious beliefs or on any other ground.  

   [9] court book, page 92.3

   [10] court book, page 92.4

   [11] court book, pages 92.7 – 93.4

   [12] court book, page 92.4

   [13] court book, page 93.6

   [14] court book, page 94.2

   [15] court book, page 94.3

   [16] court book, page 94.5

2. The applicant relies upon his application under the Migration Act 1958 (Cth) (“the Migration Act”) filed on 29 December 2005. That application asserts notification of the RRT decision on 3 December 2005. On that basis I find that the application was filed within time.

3. When this matter first came before me on 3 February 2006 it was not clear to me whether the application disclosed an arguable case. 

   
   

   I therefore conducted a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on 9 February 2006. The result of that hearing was that part of the application was struck out as failing to disclose an arguable case. That part comprised paragraph 2 under the heading, “Particulars”, and paragraph 3(d) under the heading, “Particulars”. I ordered the Minister to show cause why relief should not be granted in relation to the balance of the application as disclosing an arguable case. I also made procedural orders for the filing of evidence and submissions. The applicant has filed nothing further. The Minister filed a book of relevant documents on 22 February 2006 and an outline of submissions on 1 May 2006. The book of relevant documents is the only evidence I had before me for the purposes of today's judgment.

4. The application in respect of those allegations to which the Minister was required to respond are that the RRT committed an error of law constituting a jurisdictional error and also committed a procedural error constituting a want of natural justice.  Under the heading “Particulars” there is the assertion that the RRT identified a wrong issue, ignored relevant material, relied on irrelevant material and made an erroneous finding in determining the review application.  The applicant in particular disputes the approach taken by the presiding member in dealing with the question of what church he belonged to in China and asserts confusion over the meaning of the word “church” in Chinese.  He also asserts a misunderstanding by the presiding member of the nature and functions of the organisation known as the Three Self Patriotic Movement.  The applicant asserts that the presiding member lacked an adequate understanding of the situation of the official and underground churches in China.  Finally, the applicant asserts that the RRT used the wrong test to assess his credibility.  The particulars are an assertion of interpretation problems. 

5. Ms Clegg, in her submissions, deals with an issue which arose at the show cause hearing of the consequence of making a show cause order under the rules of this Court.  She submits that the correct view is that a show cause order does not place any burden of proof upon the Minister.  She submits that the burden of proof remains upon the applicant.  Although there is a dearth of relevant authority on this question, Ms Clegg draws support from the decision of the High Court in Re Refugee Review Tribunal; ex parte Aala (2000) 2005 CLR 82 at paragraphs 12 to 60 per Gleeson CJ and also Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 per Emmett J at paragraphs 20 and 25.

6. In my view, the consequence of making a show cause order pursuant to rule 44.12(1)(b) of this Court's rules is to place upon the Minister a burden of active participation in the judicial review process from that point. I see no other consequence. A show cause order is made by the Court where an applicant is able to demonstrate an arguable case. That is a relatively low threshold test. It logically follows, in my view, that the burden of proof in order to obtain final relief must remain with an applicant. That said, the Minister would be at serious risk of final orders being made in favour of an applicant if the Minister did not comply with the show cause order. In practice, however, no additional burden is placed upon the Minister by a show cause order than that which would in the ordinary course be met by the Minister without such an order having been made, at a final hearing. A show cause order may be met by evidence or by submissions. In practice the Minister almost invariably does both. The effect of a show cause order made at the interlocutory stage is to indicate a preliminary view of the Court as to those issues which might support final relief. It is no more than that.

7. Turning then to the application before the Court, the assertion of interpretation difficulties at the hearing conducted by the RRT can be easily dealt with.  In order to succeed in that assertion the applicant would have needed to present to the Court evidence of interpretation problems.  He has not done so.  I gave him the opportunity to file and serve affidavit material, including a transcript of the RRT hearing.  He did not take up that opportunity.  The record of the RRT proceeding contained in the book of relevant documents gives no indication of any interpretation problems. 

8. The presiding member observes, on page 92 of the court book, that she found many aspects of the applicant's oral evidence problematic.  Much of that was given in a hesitant manner.  That is an observation on the applicant's demeanour at that hearing.  I have had the opportunity to observe the applicant at three hearings in these proceedings.  The impression I have of him is that he is an exceptionally diffident person.  He was extremely hesitant in making oral submissions.  He had difficulty in expressing himself both orally and in writing.  In making his oral submissions to me today and on 9 February 2006 at the interlocutory hearing the applicant read from a prepared written statement in the Chinese language.  Some parts of that statement did not make any sense.  That was not a problem of interpretation.  Ms Mi, one of the Court's most experienced accredited interpreters, was unable to make sense of parts of the applicant's written statement when she tried to read it.  It is possible that the applicant's natural diffidence and his inability to express himself clearly created an adverse impression in the mind of the presiding member.  It is possible that the problems with the applicant's evidence could in part be explained by his personality and difficulty in communicating.  That leads me to be cautious about the adverse credibility finding made by the RRT.  It does not, however, establish any jurisdictional error.  It merely means that a different decision-maker may have reached a different conclusion.

9. The other grounds in the application and the related particulars are an attack on the manner in which the RRT tested the applicant's claims.  Testing religious belief is not an easy task.  It is possible that there was some confusion in the questions asked of the applicant and his answers in relation to what church he belonged to.  A church may be, as the applicant notes, a building.  It may also be a collective noun describing a number of believers.  It may also describe the institutional or organisational structure of a body of believers. It is possible that there may also have been some confusion between the applicant and the presiding member relating to the nature and functions of the Three Self Patriotic Movement. 

10. The approach taken by the presiding member to test the veracity and depth of the applicant's beliefs was in part questionable.  For example, on page 88 of the court book the presiding member records that she asked the applicant who or what Christians understand God to be.  That is an awfully big question to ask.  It is apparent from what follows that the presiding member was looking for a description of the Trinity.  The presiding member's own understanding of the Trinity, apparently based upon internet material, is itself questionable.  The presiding member records her understanding that Christians believe that God was made up of three persons.  A more orthodox description of the Trinity would be that God is a single entity with three natures.  These are subtle and difficult questions which have vexed Christians for as long as the Christian faith has existed.  There are Unitarian Christians who reject the concept of the Trinity altogether.  The applicant was not necessarily wrong in responding that he only believes in one God.  My own view is that a Christian is someone who is capable of reciting the Nicene Creed (which sets out the fundamental articles of faith) and who believes it.  By that test, however, there would probably be very few Christians.  A fair proportion of those who assert to be Christians would be excluded.  The presiding member was entitled to test the depth and veracity of the applicant's belief as well as she could.  Overall the responses of the applicant indicated only a very superficial understanding of Christian beliefs and indicated that what he did know had been learned by rote. 

11. I conclude that the adverse credibility finding made by the presiding member on page 94 of the court book was open to the presiding member on the material before her.  I otherwise agree with and adopt for the purposes of this judgment paragraphs 15 to 21 of the Minister's written submissions:

    Particulars 1(a) – (h)

    These particulars are really in the nature of submissions.  The particulars demonstrate that the applicant complains about the RRT’s reasons and findings in relation to the failure by the applicant to name the Church in which he was involved and the applicant’s evidence about the official or patriotic church in China.

    The applicant complains about the RRT’s reasoning and suggests that there is a different meaning of “Church” in the Chinese language, and takes issue with the RRT’s suggestion that the applicant must have belonged to a denomination or single Church.  This is, in substance, an attempt by the applicant to re-agitate the merits of the case, explain his claims and provide new evidence to support his claim. This is impermissible. The applicant had an opportunity to explain these matters to the RRT, and failed to convince the RRT of the veracity of his claims.  The applicant is effectively asking the Court to entertain new evidence, and new arguments, and consider new factual issues but does not point to any jurisdictional error on the part of the RRT.

    The applicant faces the same difficulties in the complaints he makes about the RRT’s reasoning concerning the Three Self Patriotic Movement (TSPM). Further, the fact that the RRT referred in its decision to the TSPM as ‘TPSM’ does not assist the applicant. It is merely an inadvertent slip in the RRT’s decision, and has no impact upon the reasoning of the RRT.  In any event, even if it could constitute an error of fact, such an error of fact does not bear the result that there is jurisdictional error.

    Finally the applicant complains about the “knowledge” of the RRT in its reasoning about the Christian church in China. This is in substance a complaint about the use the RRT made of the independent country information before it (or possibly the lack of information before it). The applicant can not legitimately make such a complaint. The independent country information before the RRT supported the conclusions drawn by the RRT about the practice of Christianity in China and the Court can utilise and weigh information before it in a manner it sees fit: NAHI v Minister for Immigration [2004] FCAFC 10 (2 February 2004) at [11]. Further, it is for the appicant to make out his own case. If the applicant had wanted the RRT to consider certain information or entertain certain answers or responses, then it was for the applicant to provide the information to the RRT – especially after the appplicant had been put on notice by the s.424A letter that the RRT was interested and concerned with the question of what Church the applicant belonged to. Finally, to the extent that this complaint suggests there is a duty upon the RRT to inquire into matters and obtain ‘knowledge,’ such a claim is unsupportable. It is well established that no such duty exists.

    Particular 3(a)

    The applicant asserts that the wrong test was used the test the applicant’s credibility by ignoring the fact that the interpreter could not interpret the religious terms correctly.

    First, there is no test by which the RRT makes an assessment of credibility. It is a matter for the RRT to determine how it assesses credibility, and the testing of credibility is the exclusive function of the RRT.

    The applicant may in fact be saying that there were errors in interpretation which led to jurisdictional error. If that is the case, an error in interpretation does not necessarily lead to jurisdictional error on the part of the RRT.  Further, and in any event, there is no evidentiary basis upon which the Court could conclude there was an error in interpretation. The applicant must demonstrate such an evidentiary basis exists before relief can be granted: NAOA v Minister for Immigration [2004] FCAFC 241 at [21].

1. I find that there is no jurisdictional error in the decision of the RRT.   The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. Costs should follow the event in this case. The Minister seeks an order for costs in accordance with the Federal Magistrates Court Rules. The applicant did not wish to be heard on costs. Scale costs in this matter would be an amount of $5,000. That is in my view an appropriate outcome. I will order that the applicant pay the first respondent's costs and disbursements of an incidental to the application in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 May 2006