SZJHG v Minister for Immigration
[2007] FMCA 2050
•4 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2050 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425, 91R(3) |
| Craig v South Australia (1995) 184 CLR 163 SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 SZEMS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 359 |
| Applicant: | SZJHG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2455 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the First Respondent: | Mr Godwin |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2455 of 2006
| SZJHG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 1 August 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in November 2005 and applied for a protection visa. She provided a statutory declaration in support of her protection visa application in which she claimed, in essence, to fear harm from the authorities because she was a Christian and a member of an underground Christian church. In particular, she claimed that when she had arranged a religious gathering at her home, that led police to arrest her and others, that they were taken to the Public Security Bureau (PBS) and detained and that thereafter she was sent to a stone quarry to work as she was regarded as the leader of the group. She claimed that eventually she travelled to Australia to avoid further persecution.
It is also relevant to note in light of the claims that she made to the Court, that she claimed that her parents were Christian, that when she was only a month old they had been sent to a forced labour camp for about 10 years and that during that time she stayed with another villager but received no formal schooling. She claimed that when her parents returned she assisted them on a farm and that subsequently she joined an underground Christian church at the invitation of one of the suppliers to a stall where she was selling clothes.
The application was refused by a delegate of the first respondent who did not accept that the applicant was an underground Christian in China.
The applicant sought review by application lodged with the Tribunal. She attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
The Tribunal recorded in some detail the applicant's claims in connection with her protection visa application and the evidence given at the hearing, at which time the applicant was assisted by a Mandarin interpreter. In particular, the Tribunal recorded the applicant's response to questions in relation to her parents' practice and her practice of Christianity. The Tribunal recorded that she claimed that her parents had been punished because they were Christians and that after their return, while they continued to be Christians, her father was not in good health. Others came to the home and prayed for his health, but her parents did not otherwise do anything to practise their beliefs.
The Tribunal stated the applicant was not able to tell it anything about her parents' Christian activities or practice and that she did not know how they currently practised their Christian beliefs.
The Tribunal also found that she was not able to describe clearly what happened at the meetings of the church she claimed she attended, except to claim that the group joined together and talked about stories from the Bible. Nor was she able to identify the group by reference to a denomination. The Tribunal referred to the fact that when it put to her that she did not know very much about how Christian churches were organised, she had claimed that she did not know much because she had been busy with her business.
The Tribunal found that the applicant was unable to explain how her church was different to the official church and that she had very limited knowledge of the essentials of Christian belief. The Tribunal recorded that it put these concerns to the applicant in the course of the hearing.
It also referred to the fact that, when asked about her detention, the applicant had claimed that she was sent to a factory and given the job of collecting stones for which she did not receive a salary. However, she was not charged with any offence and there was no specified time for her forced labour and she did not have documentation.
The Tribunal set out to the applicant's claims as to how she came to Australia and what she claimed she did after her arrival, including her attendance at a Chinese Christian church at Blacktown and her provision to the Tribunal of a certificate from the chief Minister of that church.
In the findings and reasons part of its decision, the Tribunal summarised the applicant's claims as a claim to fear persecution from the authorities for reason of her membership of an unregistered Christian church and her involvement in the activities of that church, that in 2004 she had been arrested, detained and had undergone forced labour for reasons of her involvement in the church, that she had obtained a false passport and left China in November 2005, and that if she returned she would possibly be subject to further arrest, detention and forced labour for reasons of her religion.
The Tribunal accepted that the applicant was a citizen of the Peoples Republic of China, that she came from a small village in Fujian Province, that she had not received any formal education and that her ability to read and write was limited. It also accepted her evidence that she and her family had lived in difficult financial circumstances for much of her lifetime and that her parents may have been compelled to undertake forced labour after her birth in 1969 for a number of years, given country information indicating that during the Cultural Revolution millions of Chinese citizens were forced to do so for a variety of reasons.
However, the Tribunal did not accept that the applicant's parents were Christians or practised as Christians after the family was reunited. The Tribunal had regard to the fact that the applicant was not able to explain or describe how her parents practised their Christian beliefs or the nature of any of their church activities. The Tribunal did not accept her claim that her parents were members of any Christian church or group.
Nor did the Tribunal accept that the applicant herself adopted Christian beliefs or joined an unregistered Christian church whilst she lived in China, for reasons which it gave. The Tribunal had regard to the fact that the applicant could not describe the meetings she claimed she attended from May 2002 or explain what she learned or discussed at such meetings. It found that she knew little about Christian belief and practice and that such lack of knowledge was not consistent with a person who claimed to have attended weekly Christian meetings from May 2002 and who also attended church services in Australia. It did not accept that she could not explain what she had learned about Christianity at the meetings because of language difficulties, finding that her “lack of knowledge was quite fundamental and her difficulty with names was only a minor indicator of the superficiality of her knowledge”.
As the Tribunal did not accept that the applicant was a member of an unregistered Christian church, it did not accept that she had arranged a meeting of members in her home in July 2004. Nor did it accept that members of the local PSB broke into the meeting and arrested and detained her and others. It referred to the fact that she could not give a very detailed account of the circumstances of the claimed arrest and detention. The Tribunal stated that it formed the view that the account the applicant gave at hearing was rehearsed. It noted that she had no documents relating to the arrest and did not claim to have been fined or charged with any offence. While the Tribunal accepted that detention in China was not always accompanied by formal charge procedures, it found the absence of any formal charge or administrative detention order in this particular case supported its findings that the applicant was not arrested or detained as claimed.
Because it did not accept that the applicant was arrested and detained as claimed, the Tribunal did not accept that she was compelled to work in a stone processing factory by the PSB as punishment for membership of an unregistered Christian church. Again, it referred to the absence of administrative documents in relation to a forced labour order, to the fact that there was no claim of a specified period of forced labour, and to the fact that the applicant had not given the Tribunal the name of the factory at which she worked and that she claimed it was run by the local PSB but that she was allowed to return to her home at the end of each working day.
The Tribunal found the applicant’s claims to be inconsistent with country information in relation to the forms of forced labour in China and the fact that all such forced labour involved detention for a fixed period of time. For this reason and for all the reasons it had set out, it did not accept that the applicant was subject to forced labour or that PSB officers came to the applicant's home and questioned or harassed her in the evening.
The Tribunal did accept that the applicant may have worked in a stone processing factory on a voluntary basis and that she may have received an injury to her hand from difficult work, but did not accept that she was compelled to do so by the Chinese authorities.
On the basis of its findings it did not accept that after the applicant left China members of the PSB came to her home seeking information on her whereabouts for any Convention related reason.
The Tribunal then considered the applicant's claim to have attended a Christian church in Australia. It referred to the letter from the chief Minister and accepted that she did attend a church in Australia. However, it found her knowledge of the nature of the services attended and the practices of that church to be limited and superficial. It found that she attended the church only for the purpose of supporting her application for a refugee status. The Tribunal did not consider that the applicant had a genuine interest in Christian belief and practice and that if she returned to China she would seek to attend either the official or an unregistered church.
In light of country information to which it had referred, it did not consider that the applicant's occasional attendance at a Christian church in Australia would place her at any risk of harm if she returned to China now or in the foreseeable future, having regard to the fact the information indicated that Christian practice was reasonably widespread in the province from which she came and that even practice at unregistered churches was generally tolerated other than for occasional instances of harassment.
The Tribunal considered that the evidence indicated that the applicant and her husband had been in difficult financial circumstances and that she came to Australia for the purposes of working and providing financial support for her family. It accepted that she had obtained a false passport but not that she did so because she was a member of an unregistered Christian group and of adverse interest to the authorities. The Tribunal had regard to country information in that respect in relation to persons from her area in China commonly being assisted by illegal people smugglers to leave China to seek better economic opportunities in western countries. The Tribunal also had regard to the implausibility of her claims about arrangements she made for accommodation and employment immediately after arrival in Australia.
In light of these findings the Tribunal considered the situation for the applicant if she returned to China as a person who had illegally departed. It noted that while this was a criminal offence, country information indicated that the authorities took a fairly lenient approach to offenders not involved in the people smuggling trade. Moreover it found that even if the applicant did face a risk of punishment by way of fine or detention, that would be the result of the application of a law of general application prohibiting illegal departure, that there was no evidence that such law was selectively enforced and that it appeared to be applied on a non-discriminatory basis to all persons who arranged illegal departure.
The Tribunal concluded that it did not accept that the applicant had a well-founded fear of persecution for a Convention related reason.
The applicant sought review by application filed in this Court on 1 September 2006. She relies on an amended application filed on 5 February 2007. That application raises two generally expressed grounds: an error of law constituting a jurisdictional error and a procedural error constituting an absence of natural justice. There are 16 particulars. The applicant did not file written submissions.
The first five particulars contend, in essence, that the Tribunal did not consider the applicant's claims properly and fairly. The applicant contended that her lack of education hampered her understanding of questions asked of her during the Tribunal hearing. She reiterated this claim in the hearing today. She claimed that this made it difficult for her to explain Christianity and her religious practices, that she was not a Priest or significant religious leader or someone with religious education, and that she was under mental pressure at the hearing and that this was the explanation for why she had not been able to explain some particular religious terms to the Tribunal.
In support of this claim, reference was made to the UNHCR Handbook in relation to the situation of applicants for refugee status and their vulnerability. Particular 6 adds a claim that the applicant should have been given a “fair chance to clarify any apparent inconsistencies and to resolve any contradictions, and to find an explanation for any misrepresentation or concealment of material facts”. It is contended that there is an “issue” of s.424A and s.425 of the Migration Act 1958 (Cth).
Dealing first with the applicant's claims in relation to the conduct of the Tribunal hearing and her allegation, in effect, that there was a lack of a fair hearing, or a failure to comply with s.425 of the Migration Act1958, the only evidence before the Court of the conduct of the Tribunal hearing is the Tribunal reasons for decision. There is no evidentiary basis for the claims made by the applicant insofar as she contends that she was denied a fair hearing. On the contrary, it appears from the Tribunal's account of what occurred in the hearing that the applicant was given every opportunity to elaborate on her claims and that the Tribunal raised with her issues of concern, arising not only out of country information in relation to the situation in China, but also its concern that the evidence indicated that the applicant did not have much knowledge of Christian practice and belief. It is also apparent from the Tribunal reasons for decision that the Tribunal considered but did not accept the applicant's explanation that she could not explain what she had learned about Christianity because of language difficulties.
Insofar as the applicant takes issue with the Tribunal approach in questioning her about specific aspects of her knowledge of Christianity and religious practices, as stated by the Full Court of the Federal Court in SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [45]:
Whatever reservations might properly be held about the exploration of a person's religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person's claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground.
The Full Court considered at [47], a claim that the Tribunal had imposed some form of standard as to the requisite level of knowledge (in that case of Falun Gong doctrine). It observed that where a person makes a claim to be an adherent of a particular religious movement or set of beliefs, the Tribunal “can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim”.
Similarly, in this case the applicant's contentions in relation to s.425 and procedural fairness do not establish jurisdictional error on the part of the Tribunal in relation to the conduct of the hearing.
These issues are raised further in Particular 15 in which the applicant claimed that she had been deprived of her rights under s.425 because the Tribunal failed to inform her clearly and properly of the material she relied on in her decision. Insofar as that is a contention that the Tribunal failed to comply with s.425, in fact it appears from the Tribunal's reasons that it put the concerns it had with the Applicant's evidence to her in the course of the hearing. I note also that the Tribunal’s obligation to put information to the applicant for comment is addressed by s.424A as discussed below. There is no evidence to support the claims that the applicant makes in the amended application in relation to s.425. This ground and the related grounds must fail in the absence of supporting evidence. See NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241, SZGQE v MinisterforImmigration & Multicultural & Indigenous Affairs [2006] FCA 304 and SZEMS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 359.
Paragraphs 6 and 14 of the particulars contend that there was a failure to comply with s.424A of the Act. In particular, in paragraph 14 it is contended that the Tribunal relied on information that the applicant’s claims “might have had some inconsistencies with the evidences from independent sources” and that the Tribunal failed to put such information to her for comment. Insofar as this is intended to address information contained in independent country information, such information is outside the obligation in s.424A(1) by virtue of the exception in s.424A(3)(a). Insofar as the applicant intends in this particular, or more generally in her amended application, to contend that the Tribunal was required to put to her its doubts and concerns about her evidence, it is well established that s.424A does not apply to the Tribunal's subjective appraisals, thought processes or determinations. See VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [477] and the discussion in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [18].
I also note for the sake of completeness that this is not a case where there appears to be an issue in relation to evidence given by the applicant in support of the protection visa application (or inconsistencies). Rather the Tribunal considered the applicant's claims in their entirety, in particular as elaborated on in the Tribunal hearing, but was not satisfied for the reasons that it gave that the applicant was a member of an unregistered Christian church or that the consequences that she complained of had occurred for reason of her religion.
In particulars 7 to 11 the applicant claims, and she reiterated today, that the Tribunal ignored or failed to consider a claim that she made, misunderstood a claim or made a mistake in relation to important finding of fact. She also reiterated that she had not been given an opportunity to comment on relevant matters. In particulars 9 and 10 the applicant repeated her claims in relation to detention and a requirement that she work at the stone quarry, and contended that these claims raised issues that the police regarded her home as a secret gathering place for the underground church and believed that she was the leader, that she tried to block the police from arresting others and that she had had to escape from the stone quarry where she would be punished. The particulars repeat her claim on that basis to have been subject to persecution and to have a well-founded fear of persecution on return to the Peoples Republic of China.
These particulars are clarified further in particular 12 in which it is contended that there was a jurisdictional error of the nature considered in Craig v South Australia (1995) 184 CLR 163, and in particular 13 which states that the applicant believed that the Tribunal had identified a wrong issue, asked a wrong question, ignored relevant material, relied on irrelevant material and made an erroneous finding. The clarification of that is that the Tribunal did not “figure out” the main issues that the applicant had mentioned in particular 10.
However, contrary to the claims in the amended application, of the applicant, it is apparent from the Tribunal reasons for decision that it addressed the claims made by the applicant in relation to the claimed events of July 2004 and about the consequences. However, as set out above, the Tribunal considered each of these claims and gave reasons for not accepting them, based not only on the Tribunal's initial failure to accept that the applicant was a member of an unregistered church based on her lack of knowledge about Christian belief and practice, but also having regard to particular difficulties with her evidence or independent country information relevant to each of the other aspects of her claims as to what had occurred to her in China.
It has not been established that the Tribunal failed to consider a claim of the applicant in relation to those events or that it otherwise fell into jurisdictional error in its consideration of those issues.
In the hearing today, associated with these claims perhaps, the applicant raised a contention which seemed to suggest that the Tribunal had failed to deal with her claim about her parents having been sent away and her resulting lack of ability to read and write. She also raised the issue of her lack of ability to read and write in connection with the conduct of the Tribunal hearing, as discussed above.
As to the applicant's claims in relation to her parents, in fact the Tribunal set out the applicant's claims in that respect as made in the statutory declaration accompanying her protection visa application. It also set out her evidence in response to questions at the Tribunal hearing, in particular her claim that her parents had been punished because they were Christians and her lack of knowledge about their consequential practice of Christianity after they returned to live with her. However, while the Tribunal accepted that the applicant's parents may have been compelled to undertake forced labour consistent with country information, it did not accept that they were Christian or practised as Christians after the family was reunited, for reasons which it gave. In other words, the Tribunal did deal with the applicant's claim that her parents were sent away because they were Christians, but rejected that claim insofar as it was based on the ground of religion and insofar as religion was put as the basis for the parent's experiences and the applicant’s fears.
The general contentions in particulars 12 and 13 (by reference to Craig v South Australia (1995) 184 CLR 163) are assertions and do not establish jurisdictional error. I considered particulars 14 and 15 above.
The concluding particular is a “summary” that the applicant does not believe that the review application was “fairly and carefully” assessed by the Tribunal. However, no jurisdictional error is established on the basis contended for by the applicant.
In the hearing today the applicant reiterated some of her claims in relation to what she said had occurred in China and her fears in relation to return to China. However, merits review is not available in this Court. This is not a re-hearing and her claims in that respect do not establish jurisdictional error on the part of the Tribunal.
Counsel for the first respondent raised one other issue in written and oral submissions. While the Applicant did not assert a failure by the Tribunal to comply with s.91R(3) of the Act, it was pointed out for the first respondent that the Tribunal had found that the Applicant's attendance at church in Australia was for the purpose of strengthening her claim for refugee status and submitted that this should have meant that the Tribunal disregarded this conduct when applying the Convention definition to the applicant on the basis that such a strong finding must have meant that the Tribunal would not be satisfied that the applicant had met the onus under s.91R(3) of satisfying it that she engaged in such conduct otherwise than for the purpose of strengthening her claim to be a refugee.
On this basis it was submitted that had the Tribunal complied with s.91R(3) it would not have made a finding on the issue of whether the applicant's conduct in Australia would cause her to be persecuted in China in the future. In fact, the Tribunal found in that respect that it did not consider that the applicant's occasional attendance at a Christian church in Australia would place her in any risk of harm if she returned to China based on country information in relation to the treatment of Christian practice in the part of China from which the applicant came.
This finding was made in the context of the Tribunal’s finding that it did not accept that the applicant had a genuine interest in Christian belief or practice or that if she returned to China she would seek to attend either the official or an unregistered Church. As submitted by the first respondent, the affording of the opportunity to the applicant by proceeding in this manner to consider the impact of her occasional attendance at a Christian church in Australia in relation to her claims to fear persecution in China (despite s.91R(3)), had no consequences for the outcome of the case. The factual findings of the Tribunal in other respects meant that the applicant's case was one which the decision maker was bound by the Migration Act1958 to refuse. In effect, any error, if there be such an error in the Tribunal proceeding in this manner, was favourable to the applicant and has not led to it falling into error in a manner that affected the exercise of its jurisdiction.
As considered in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [28] to [29] per Gleeson CJ, Gummow, Callinan, Hayden and Crennan JJ, if there was such a jurisdictional error it would, in any event, be just that any remedy should be withheld. Even if the submissions in relation to s.91R(3) and its effect are accepted, the Tribunal's consideration of the impact of the applicant's attendance at a Christian church in Australia is not such as to affect the outcome of the Tribunal decision. As discussed in Re Refugee Review Tribunal; Ex Parte Aala (2004) 204 CLR 82, the case was one in which the decision-maker was bound by the governing statute to refuse. In these circumstances, should it be necessary for me to do so I would refuse relief in the exercise of my discretion.
Hence, the application should be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The first respondent seeks that she pay his costs in the sum of $5,000. The applicant raised with the Court the fact that she had no job and no ability therefore to obtain the money. However, the applicant's impecuniosity is not a reason for not awarding costs in this instance. It is, however, a matter that may be taken into account by the first respondent in determining when and how to seek to recover such costs.
The amount of $5,000 is consistent with the amount provided for in the Federal Magistrates Court Rules. I consider that it is a fair and reasonable amount and appropriate in this instance in light of the nature of this and other similar matters.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 11 December 2007
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