SZKKJ v Minister for Immigration
[2007] FMCA 1700
•2 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1700 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal is not obliged to undertake enquiries – it is not open to the Court to reconsider Tribunal’s findings on facts which are not jurisdictional facts – allegation of bias not proved. |
| Migration Act 1958, ss.91R, 91X, 424A |
| Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZKKJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1014 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 August 2007 |
| Date of Last Submission: | 21 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1014 of 2007
| SZKKJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By amended application filed on 9 July 2007 the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 1 March 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 3 January 2007 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a male PRC national, born in Songxi County (Fujian) in 1971. He gives his religion as Christian, and states that he speaks, reads and writes Mandarin and English.
The applicant studied in China for 16 years, until 1992. From 1992 to 1999, he worked as an information engineer at the Fisheries Department of Fujian Province. In Australia, he was enrolled at Wollongong University (July 1999 to July 2000), where he obtained a Masters of International Business, then Alpha Beta College, Sydney (July 2000 to July 2001). The applicant states that he worked as a manager and in various casual positions from mid-2001 until November 2006. (Court Book (“CB”) page 131).
The applicant claims to fear persecution in China because of his Christianity.
The facts alleged in support of the applicant’s claim for a protection visa are set out in a statutory declaration attached to his application and summarised by the Tribunal as follows:
1. The applicant fears returning to China because of his religion, Christianity.
2. The applicant claims that his mother’s family was Christian. He refers to her family’s suffering after the Communist rise to power in 1949 – her father, a journalist, was executed in 1950 as a “revolutionary gang member”, and three siblings went missing.
3. The applicant’s mother wanted to raise the children as Christians, but kept their practice “strictly within our small family” so as to avoid adverse attention, such as arrest, torture and imprisonment.
4. However, the applicant states that his mother attended one of a number of local underground churches, this one in a local medical centre. She took the applicant there for the first time on his tenth birthday. The church did not have a name. The applicant recalls having been given a small cross as a birthday present. The applicant continued to attend the church during his high school years. He heard from his mother that one couple who belonged to the group had been arrested, but he assumes that they did not reveal the location of the church.
5. People knew or suspected that the applicant was Christian, as his faith grew deeper. He was called abusive names and refused entry into student organisations. The applicant was voted off the school soccer team because fellow players were uncomfortable with him, even though he was the best player.
6. The applicant attended university in Qingdao, a large city where he hoped things would be better. He sometimes attended a registered church there, so people came to know he was Christian. However, he did not find this church satisfying. A friend told him about an underground church. The applicant attended 2 underground churches while he was at university, and became involved in basement printing factories producing religious materials. He helped as a delivery boy, typist, mechanic and liaison person for the underground church. The authorities detained him briefly on 2 occasions, suspecting that he was involved in “illegal religious activities”.
a. The applicant attended one church for about a year, until the authorities learned about it and closed it down. Plain clothes police stopped the applicant as he was about to enter the premises. They questioned the applicant for several hours, and released him when he denied knowledge of the church.
b. He later attended a church group in a private house, on most Sundays for about 2 years. One day, members of the neighbourhood committee stopped the applicant and called a higher official. He contacted university staff, who vouched for the applicant, but recorded the incident in his personal file (dang’an).
7. After graduation, the applicant worked in a local government office in Fuzhou City. His faith continued to deepen, and when he was 21, he tattooed a cross on himself as a sign of his devotion.
8. The applicant learned more about the treatment of Christians in China, and that many Christians had fled China fearing violence and persecution. The applicant continued attending church and helping to print and distribute religious materials, but avoided trouble until 1998. One day at Fuzhou University, security guards inspected the applicant’s (and a friend’s) backpacks and discovered that they were carrying hymns and a Bible. They reported the incident to the police. The applicant and his friend were detained and questioned. The applicant refused to show identification. He admitted being a Christian, but did not reveal his involvement in any underground church. He was beaten up, losing 3 front teeth and suffering cheek bone injuries. The applicant eventually told the police his identification and his place of work, and was released after 48 hours.
9. The applicant’s friend lost his university job, and the applicant realised that his time at the local government fisheries department would soon be up. The applicant feared continuing problems because of his religion, or being unable to practice [sic]. He paid a bribe to obtain a passport quickly and, with his mother’s blessing, arranged a student visa for Australia.
10. In Australia, the applicant claims to have attended church most Sundays, work commitments permitting. He states that he attends the Belmore Baptist Church and the Epping Baptist Church. Since his Immigration detention at Villawood, he has attended services of the Hillsong Church, and was recently baptised at that church.
11. The applicant states that he is committed to his religion and would continue to practice [sic] if he returned to China. He fears detention and ill-treatment, and serious discrimination if that were to occur. (CB 131 – 132).
Attached to the applicant’s protection visa application form was a photocopy of a baptism certificate in the applicant’s name signed by Pastor Alosio Waininau of Hillsong Church on 10 December 2006.
On 1 February 2007 the Tribunal received a “Response to Hearing Invitation” to which was attached a statement from the applicant confirming that he had been active in the Hillsong Church “from the second week I was in Villawood because I found that the people and attitudes of Hillsong Church suited me”.
At the Tribunal hearing on 8 February 2007 the applicant also submitted the following:
a)he regularly attended Stanmore Baptist Church over 4 years or so before his immigration detention in November 2006; and
b)the applicant frequently discussed Christianity with his landlord before his detention at Villawood.
After the Tribunal hearing, the Tribunal received from the applicant an unofficial English translation of a purportedly official letter from a District PSB officer dated 18 December 1998 describing the incident at Fuzhou University on 6 December 1998 when the applicant and a friend were apprehended by security guards. The report stated that the applicant was suspected of being involved in illegal religious activities.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal considered that the applicant’s limited knowledge of Christian beliefs gave little insight into whether or not he actually had any religious convictions, noting that the applicant’s basic knowledge about aspects of Christianity such as the Ten Commandments could have been acquired through the applicant’s recent intensive contacts with Christian groups in detention, in particular the Hillsong Church;
b)the Tribunal found the applicant’s account of his Christian contacts in Australia prior to his detention to be sparse, noting that although the applicant described visiting Epping Baptist Church on a few occasions and attending Stanmore Baptist Church over 4 years, he also indicated that he had minimal contact with Christian groups during his first years in Australia, referring variously to conflicting study and financial commitments;
c)the Tribunal did not accept that the applicant attended the Stanmore Baptist Church regularly, noting that:
i)it found the applicant’s evidence of his attendance at this church to be generalised and vague. Although the applicant had some knowledge of its location, service times and some clergy, he lacked contextual information such as the actual conduct of services or personal acquaintance with other parishioners; and
ii)the Tribunal found it implausible that the applicant would drive to the church alone each Sunday for four years, as claimed, and yet be unable to call upon any fellow worshippers to attest to his participation in the church;
d)the Tribunal did not find credible that a person who had a strong personal commitment to his faith in China and risked distributing unauthorised printed material would have had virtually no tangible contact with or interest in the church in his first few years in Australia;
e)the Tribunal did not accept that the applicant’s small tattoo of a cross had any religious connotations, given its inconspicuous and plain nature. The Tribunal was also of the view that the tattoo’s form was consistent with, although was not specifically, a Christian cross. It concluded that although an observer might consider it to be a Christian cross, given the material before it, the Tribunal did not accept that this mere possibility would lead anyone to perceive the applicant to be a Christian;
f)the Tribunal did not find the applicant’s assertion that his landlord could support his claimed Christianity was significant, noting that:
i)it was curious that the applicant would seek to rely on such a person in preference to his own claimed congregration; and
ii)it would be difficult to place much weight on the statement of the landlord – who may have a pecuniary and perhaps personal interest in assisting the applicant gain legal residency in Australia – as reliable corroboration of the applicant’s claims;
g)the applicant conceded that he had scant evidence of his religious practice in Australia. The Tribunal did not accept the applicant’s claim to have led a withdrawn, depressed and reclusive life in Australia on the basis that the applicant presented as a personable and articulate witness;
h)the Tribunal was not satisfied that the applicant’s participation in Hillsong Church activities in Villawood and his baptism were engaged in other than for the purposes of strengthening his claim to be a refugee. Accordingly, the Tribunal disregarded this conduct pursuant to s.91R(3) of the Act;
i)the Tribunal placed no weight on the document purporting to be a letter from the District PSB dated 18 December 1998, noting that:
i)it was remarkable similar to the applicant’s oral account of the alleged incident given at the hearing;
ii)it was curious that the applicant focused so much on obtaining archival material from China while making little effort to demonstrate his claimed Christian practice in Australia; and
iii)country information about China suggested that document fraud was common;
j)the Tribunal found the applicant had fabricated his evidence and claim to be a Christian. Implicitly, the Tribunal concluded that if the applicant genuinely feared religious persecution he would have sought protection at an earlier stage, as opposed to his conduct in doing so only after his student visa had expired and he was detained.
In essence the Tribunal found:
In sum the Tribunal does not accept that the applicant is a Christian or that he will be so perceived. The Tribunal also finds that the applicant does not have any personal interest in or political opinion on matters such as the Chinese Government’s regulation of churches. It finds that the applicant invented his claim to be a member of an underground Christian church in order to seek refugee status in Australia after his detention. (CB 143).
Proceedings in this Court
The grounds of the amended application are as follows:
1. The Tribunal erred by failing to consider relevant country information I provided in the response to the “Invitation to Comment on Information” It totally neglected my explanation regarding the perceived consistency [sic] between my protection application and former student visa application and then concluded I am not a truthful witness without a proper investigation.
2. The Tribunal was diverted from considering whether I had a well-founded fear of persecution or ill-treatment by solely considering how I was religiously active in Australia. It failed to conduct a proper investigation regarding my Christianity involvement in China.
3.The Tribunal erred in establishing its finding that I am not a Christian by assuming my attending church was only social. I admitted I did not attend church service regularly during the first one and half year due to study pressure. The Tribunal seized this claim out of context and then dismissed my religious practice claims as a whole.
4. The Tribunal made a finding in the complete absence of evidence … [when it chose not to accept that the applicant would be persecuted as a Christian based on the possibility that an observer might perceive the tattoo to be a Christian one or a design influenced by the cross].
Following the conclusion of the hearing the applicant sent an email to the Court which, in effect, made further submissions in support of his application. The matter was re-mentioned and the first respondent was granted leave to file written submissions in reply.
In his emailed submissions the applicant raised a further asserted ground of review, namely that the Tribunal was biased. He also re-agitated arguments which had been made at the hearing and criticised the quality of the translations provided by the Court-appointed interpreter.
Dealing with each of these grounds in turn:
Inconsistencies between what the applicant said in his application for a student visa and in his application for a protection visa.
In his statement dated 18 August 2000 in support his application for a Student (Temporary) visa dated 16 August 2000 the applicant said:
In September [1992], I obtained a position at the Information Centre of the Provincial Fishery Department of Fujian Province. From then to July 1996, I’ve been working at the Information Centre as assistant engineer […]. I left the government department in August 1996 and joined a Hong Kong based telecommunications company […] (CB 133)
was “to clarify my professional experience as I was applying for a student visa”.(CB 104)
By contrast, in his protection visa application the applicant stated that from 1992 to 1999 he worked as an information engineer in the Fisheries Department of Fujian Province (CB 27).
As this asserted ground of review discloses, this issue was raised by the Tribunal in its s.424A letter, which, in turn, is referred to at pages 11 and 12 of its decision (CB 138-139). In its s.424A letter, the Tribunal pointed out that:
You wrote that you were detained for 48 hours and assaulted, after you and a friend were caught with Bibles and hymnbooks at Fuzhou University, that he lost his job 2 weeks later and that you then knew your days at Fisheries Department were numbered. That, together with your realisation that you could not enjoy religious freedom in China, led you to leave China. (Source: protection visa application). However, you told the Department in August 2000 that you left the government department in August 1996 to join a Hong Kong-based telecommunications company.
The applicant’s response of 14 February 2007 is referred to at page 12 of the Tribunal decision (CB 139). Under cover of his agent’s letter dated 14 February 2007 the applicant responded referring to the Chinese government policy which he described as “no pay but keep the position”. The applicant described this Chinese government policy as one which permitted state employees to take private sector jobs but maintain an employment link with the public sector. The applicant stated that some people who took advantage of this opportunity were sufficiently successful to break their links with the public sector and become businessmen. The applicant said that he took advantage of the policy and joined the Fuzhou city branch office of a Hong Kong based company. The applicant said that his government employment relationship was terminated because of the incident at Fuzhou University.
Under the heading “Findings and Reasons”, the Tribunal discussed this information in the following terms:
As noted in the Tribunal’s s.424A letter, it was the applicant who told the Department that he worked with the Fisheries Department till 1996 and from then to 1999 with a telecommunications company. The Tribunal finds unconvincing the applicant’s explanation that he emphasized his professional background because he was applying for a student visa. Although the applicant asserts in his letter that he did not mean to mislead the Department, that [is] precisely the impression that is created – that he advances the facts that will help with a particular migration purpose, then disowns them with equal speed when the immediate purpose is no longer served. (CB 143).
As this passage from the Tribunal’s decision record shows, the Tribunal considered the applicant’s comments on the information raised with him by the Tribunal but, having considered it, found it unconvincing, concluding that he tailored his evidence to suit changing circumstances.
This asserted ground of review also makes reference to independent country information allegedly provided with the response to the s.424A(1) notice. No such information was provided as part of that response, other than the factual assertions contained in the response itself (CB 102 – 104). That response was expressly referred to by the Tribunal in its rehearsal of the evidence before it and this is sufficient evidence that the information in question was considered. The fact that it may not have been referred to by the Tribunal in its decision record in the way the applicant may have wished does not indicate that it was not considered or that the Tribunal erred in relation to that information.
As to the assertion that the Tribunal reached its conclusion “without a proper investigation”, although the Tribunal has power to undertake enquiries it is not obliged to do so and the fact that it did not undertake enquiries is not indicative of jurisdictional error: Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 per Gummow and Hayne JJ at 450-451 [57] and [58], Gleeson CJ agreeing at 438 [1]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 re Gummow and Hayne JJ at 21-22 [42], [43], Gleeson J agreeing at 13 [1]. It is for the applicant to put before the Tribunal the information which will lead it to the level of satisfaction necessary for it to conclude that the applicant meets the criteria for a protection visa.
No jurisdictional error has been demonstrated in relation to this asserted ground of review.
Fear of persecution wrongly tested against religious observances in Australia and without investigation of activities in China
At the hearing in this Court the applicant submitted that:
a)the Tribunal’s decision that his level of religious activity in Australia was not demonstrative of a real commitment to Christianity was not logical; and
b)the conclusion the Tribunal drew from him not having discussed with others his personal predicament was irrational.
In relation to the first of these findings what the Tribunal said was this:
However, the applicant indicated that he had minimal contact with any Christian groups during his first years in Australia. He variously referred to study and financial commitments and in his response to the Tribunal’s correspondence, also suggested that he did not adapt very quickly to the shift from China’s repressive atmosphere to Australia’s tolerance. The Tribunal does not find credible that a person who has a strong personal commitment to his faith in China – for instance, who risks distributing unauthorized printed material and puts his employment prospects on the line – would have virtually have no tangible contact with or interest in the church in his first years in Australia. (CB 141).
In relation to the second finding the Tribunal said this:
The applicant conceded that he had scant evidence of his religious practice in Australia. He referred to his having led a withdrawn life as an illegal overstayer in Australia, and his feeling of depression since his Immigration detention began. Neither the applicant nor his adviser has substantiated any medical or other reasons why the applicant has failed to seek the support of Stanmore Baptist Church or other co-religionists, if, as he claims, he was an active Christian and wishes to remain one. The applicant presented as a personable, articulate witness, and neither his appearance nor any other material suggested that he was reclusive. The Tribunal does not accept these reasons for the applicant’s lack of substantiation for his claims, of his lack of tangible efforts to substantiate them. (CB 142).
As to allegations of illogicality and irrationality such as those made by the applicant in relation to this asserted ground of review, in SGLB’s case, Gummow and Hayne JJ said at 20 [38], Gleeson CJ agreeing at 13 [1]:
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act.
A consideration of the Tribunal’s reasoning on these two findings challenged by the applicant demonstrates that those findings were not irrational, illogical or based on findings or inferences not supported by logical grounds. The Tribunal’s conclusions were based on behaviour by the applicant which was inconsistent with the essence of his claims or inconsistent with the demeanour he demonstrated at the Tribunal hearing. It was open to the Tribunal to draw the conclusions which it did draw from those inconsistencies, as a result of which no jurisdictional error is demonstrated in this connection.
As to that part of this ground which alleges that the Tribunal failed to conduct a proper investigation into the applicant’s Christian practices in China, as has already been stated in these reasons, the Tribunal is under no obligation to make enquiries.
Wrongly assuming church attendance only social
This ground disputes the Tribunal’s fact-finding on the genuineness of the applicant’s religious commitment. It is not open in proceedings such as these to reconsider the Tribunal’s findings of fact unless the fact in question is one of a jurisdictional nature: NABEv Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 at 16 [53]. That is not the case here.
When the applicant says that the Tribunal “seized this claim out of context” what he is really saying is that he disagrees with the way the Tribunal went about its fact-finding task. The identification of the facts relied upon by the Tribunal in arriving at its decision and the weight it gives those facts are matters for the Tribunal. If the Court were to reconsider the facts in a different context, such as one advanced by the applicant, it would be trespassing into the responsibilities of the Tribunal, which it cannot do.
Consequently no jurisdictional error is demonstrated by this asserted ground of view.
Applicant’s cross tattoo
This ground misunderstands the nature of the Tribunal’s decision. Although the applicant complains that the Tribunal did not consider what the tattoo meant to him, the relevant issue actually was whether its existence would lead the applicant to being perceived as a Christian with the implication that were it to do so then persecution might result. As already set out at [10] above, the Tribunal did turn its mind to this relevant consideration.
As to whether the tattoo actually did have a religious significance to the applicant, contrary to his assertions, the Tribunal considered this issue too. In his statutory declaration submitted with his application for a protection visa the applicant said that when he was 21 he tattooed a cross on himself as a sign on his devotion (CB 42). At the Tribunal hearing the applicant showed the Tribunal a small tattoo on his upper arm and said it was a radical and naïve step he took at the time. The Tribunal considered the significance of the tattoo in the context of the applicant’s claim to be a Christian but found that:
… taking into account the applicant’s overall conduct, in both China and Australia, and the inconspicuous, plain nature of the tattoo, the Tribunal does not accept that it had a religious connotation.” (CB 142).
This passage demonstrates that the Tribunal did consider what religious significance the tattoo had to the applicant but concluded that, in fact, it had no such significance.
Bias
In his email making his post-hearing submission the applicant alleges that the Tribunal was biased such that it reached a biased conclusion on his credibility which meant that the Tribunal had never “tried to look at the merits in my claims”.
No evidence has been adduced by the applicant to support this allegation and the only material before the Court which might contain such evidence is the Court Book. A consideration of the Court Book does not support a finding that the Tribunal was committed to an already-formed conclusion which was incapable of alteration, whatever argument or evidence might be presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. As no transcript of the Tribunal hearing is before the Court there is no basis to conclude that a fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not have been bringing an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Consequently, the allegation of bias is not made out.
Generally
In his post-hearing email the applicant also raised the quality of interpreter services at the hearing in this Court. However, he did not suggest in his email that any such deficiencies were not or could not be remedied by the contents of the email itself. He has not sought an additional opportunity to appear before the Court and I conclude that any translation difficulties he may have experienced in Court have been effectively addressed by the opportunity to make the further written submissions contained in his post-hearing email.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 2 November 2007
0
7
1