SZKNF v Minister for Immigration - [2007] FMCA 1500

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1500

MIGRATION – RRT decision – Chinese applicant claiming persecution for underground church activities – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A, 424A(1), 425, 474, 476

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant:

SZKNF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1240 of 2007

Judgment of:

Smith FM

Hearing date:

15 August 2007

Delivered at:

Sydney

Delivered on:

15 August 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr M Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1240 of 2007

SZKNF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 17 April 2007, which has been set down for final hearing under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 9 March 2007 and handed down on 20 March 2007. The Tribunal affirmed a decision of a delegate made on 15 November 2006, refusing to grant a protection visa to the applicant.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474, so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in July 2006 on a temporary business visa. On 16 August 2006 an application for a protection visa was lodged on her behalf by an agent, Priscilla Yu. A statutory declaration set out a history upon which she claimed protection in Australia against return to the People’s Republic of China.
The applicant referred to leaving home in May 2004 to have a second child. She went to the home of a relative of her mother, Ms L “far away from my home town” due to concerns arising from the second child policy. She said:
8.Ms L was a devote Christian. She told me that every life was the gift of God, and we had to take care of it very much. Assisted by Ms L, I started studying the Bible and attending religious gatherings at Ms L’s or other religious sisters or brothers’ home.
9.The Christian church that Ms L belonged was called as Chinese Christian Family Church, which was an unofficial church and which was not recognised by the PRC authorities. Therefore, in order to avoid attention of the local government such as the Public Security Bureau (“PSB”), Ms L, and other leaders of the church had to organise all religious activities with cares, including frequently changing gathering places and rarely had large gatherings.
10.On 28 August 2004, which was a Sunday, I was baptised, and became a genuine Christian.
The applicant referred to having her second daughter in January 2005, and returning to her home town in March 2005. She said:
13.In May 2005, Ms L came to my hometown, discussing with me about establishing a branch of Chinese Christian Family Church in [her town]. For this purpose, I decided to open a hardware shop by myself; and Ms L sent one Christian, Ms C, to work at my shop on the surface, but actually assisted me to set up religious group and spread Gospel in [her town] area.
14.In August 2005, my hardware shop was formally opened. It was not a big shop; and Ms C and I were only staffs in the shop. From then on, Ms C and I secretly organised a Bible study group, distributed religious propaganda materials, and spread the Gospel to the local people. My shop was a secret liaison station which, on one hand, kept in touch with Ms L and other Christians of Chinese Christian Family Church in order to continually get support from them; and on the other hand, was a leading centre to maintain normal operation of the Bible study group. However, in order to avoid attention of the PRC authorities, we rarely had gatherings at the shop; instead, they were held at different religious sisters or brothers’ home. The Bible study group was developed to about 30 members in the end.
The applicant said that she was involved in distributing religious propaganda materials, and incurred the attention of PRC authorities. She claimed that she secretly recruited a lady whose husband worked at the PSB, and through that lady “successfully led my Bible study group to escape from investigation of the police”. She claimed that in April 2006 the lady informed her that she was subject to investigation. After that, she was questioned and her shop was searched. The applicant became worried about her safety, and obtained a visa to come to Australia. She left the country days after learning that Ms L had been arrested and had confessed. Her statement said:
18.Just one day after my leaving, my hardware shop has been sealed by the PSB; my home has been searched; and my husband has been questioned. Particularly, Ms C and other about 6 Christians have been arrested.
No corroborative evidence of her claimed history in China was ever given to the Department of Immigration, nor subsequently to the Tribunal. The applicant presented to the Department and to the Tribunal two letters from a minister of an evangelical church at Campsie. In his first letter dated October 2006, the minister gave his opinion that the applicant was a “sincere believer who was actively devoted to the church activities”, and indicated his support for her application to stay in Australia. In his second letter, dated February 2007, he said:
She completed the bible study for the book of Ephesus in December last year organized by our church (2 out of 10 units for a lower grade bible certificate) and is attending “the Gospel of John” for the first quarter of bible study in 2007 (another 2/10 units).
The delegate held an interview with the applicant in November 2006 before making a decision, and questioned her knowledge of Christianity and also the circumstances of her business visa to come to Australia. The delegate formed a view that “the applicant’s level of knowledge of Christianity does not support her claim that she has practised Christianity for as long and as committedly as claimed”, and therefore did not accept her claim that she would be arrested because members of her local underground church had been arrested.
The applicant attended a hearing of the Tribunal on 16 February 2007, at the conclusion of which she was given the tapes of the hearing. She has not presented to the Court a transcript of the hearing, and the only evidence before me as to what occurred is in the description in the Tribunal’s statement of reasons.
According to the Tribunal, the applicant referred to her travel to stay with Ms L. The Tribunal said:
When asked what sort of activities the applicant did in Ms L’s house, she stated because she was pregnant and in hiding, if there was a gathering at her home it was only then that she took part. She did not leave the house to take part in outside activities. When asked what kinds of things she did at the gatherings, she stated singing hymns, and worshipping God. She did not do anything else. When asked what she did to pursue religion when she was living with Ms L, she stated she could not do anything, she had just given birth. She then stated she was baptised. When asked if she did anything else, she stated she dare not go out. She stated at the gatherings that were in the house, she did not do anything, they sang hymns, worshipped God and later, they arranged to go out and spread the gospel. They also prayed for the poor.
The applicant stated the name of the church was the Underground Christian Church or the Gospel Church.
She stated she was baptised so that God could wash away her sins and she could enter the kingdom of God.
She stated after she was baptised, she left Ms L in March. She went home and was fined by the government.
The applicant then referred to setting up a shop as a cover for an evangelical movement, and then referred to her studies of the Bible. The Tribunal gave the following description of this part of the hearing:
The applicant stated she had read the bible and she started reading it after she went back home. She then stated after she got baptised, she started to read it at Ms L’s place a little bit. She stated after she got baptised, she would read it by herself.
She stated she would read the Bible sometimes when the children had gone to sleep. She stated she read it by herself. She then stated she read it sometimes 2 or 3 times a week, for 10 or 30 minutes.
She stated the bible was divided into the New and Old Testament and the Old Testament was thicker. She stated the first book of the Old Testament was Genesis, and the first story in the Bible was how God created the universe. She stated the 7^th day was the Sabbath day.
When it was put to her the Tribunal understood she had been doing Bible studies courses in Australia, she stated sometimes she went, sometimes she did not.
When it was put to her in her application she stated she started studying the bible when she was with Ms L and attended religious gatherings, she stated she was in hiding and did not.
When it was put to her that in her statement it said that she started attending religious gatherings at Ms L’s or other religious sisters or brother’s home she stated she did not go out.
When it was put to her that in her statement it said she secretly organised a Bible study group in August 2005, she stated that when the Tribunal had asked about her bible reading activities, she thought the Tribunal wanted to know about herself.
When she was asked did she study the bible with the bible study group, she stated yes. When asked why she did not state that earlier, she stated she thought the Tribunal was asking about her personal time. She then stated the main point was they were spreading the Gospel. Bible study was within the Church and people’s behaviour was more important.
Following the hearing, the Tribunal sent a letter dated 19 February 2007, raising three issues with the applicant. These compared the evidence she had given at the hearing with the contents of her original statutory declaration, and suggested that inconsistencies might lead the Tribunal to conclude that the applicant’s claims were not credible. It also put to her that the Tribunal might conclude that her activities in Australia had been engaged in for the purposes of strengthening her claim to be a refugee, and therefore might need to be disregarded “unless you satisfy it that you engaged in the conduct otherwise than for the purpose of strengthening your refugee claim”.
The applicant responded in a letter dated 5 March 2007. She attempted to rationalise the alleged inconsistencies, and claimed that her attendances at the evangelical church at Campsie were “solely for the reason that I am a Christian, and it has nothing in relation to my refugee claims”.
In its statement of reasons, the Tribunal considered the consistency of the applicant’s evidence, her evidence from the local minister, and the applicant’s response to the s.424A letter. There is no reason for me to doubt that it did not give a proper consideration to the matters put by the applicant. It concluded that the applicant had given inconsistent evidence at the hearing, both in relation to her attendances at religious gatherings while at Ms L, and whether she was assisted by Ms L to read the Bible during that period of residence.
The Tribunal also thought that the failure of the applicant to mention at the hearing her activities in organising a Bible study group when she returned home was inconsistent with the claims presented in the original statutory declaration, and this led it to conclude that she had not secretly organised a Bible study group nor participated in a Bible study group in China.
The Tribunal concluded that “the applicant is not a credible witness and that she did not organise a Bible study group, distribute religious propaganda material or spread the Gospel in China”. It also rejected her claim that she had set up a shop which was a secret liaison station, that it had been investigated by the police, and that she had been questioned. The Tribunal concluded that the police were not looking for her, and it said:
In short, the Tribunal finds that none of the alleged events in relation to the visa applicant’s supposed conversion to Christianity occurred. In addition, the Tribunal finds that none of the alleged subsequent events as a result of that alleged conversion occurred.
The Tribunal referred to the letters from the local minister, but concluded positively:
The Tribunal finds that the applicant’s conduct in Australia which has included attendance at Church and undertaking Bible study courses has been engaged in for the purpose of strengthening her claim to be a refugee within the meaning of the Refugees Convention.
It therefore did not accept her written response in relation to this.
In view of its findings, it concluded that the chance that harm amounting to persecution would befall the applicant in the reasonably foreseeable future was remote, and that the applicant did not have a well founded fear of persecution for a Convention reason.
I have considered the Tribunal’s reasoning, and I consider that it presented rational reasons for arriving at its conclusion as to the applicant’s credibility. I consider that it arrived at a conclusion on credibility which the law allows it to arrive at, and I can see no ground upon which I could set aside its decision.
The applicant’s amended application sets out arguments addressing four grounds. The first ground contends:
1.The Tribunal failed to consider my evidences and information, properly and fairly, or the Tribunal misstated or misunderstood the evidences and information given by me to it.
There is then a repetition of the applicant’s refugee claims, and of the rationalisation of her evidence given in her statutory declaration and to the Tribunal, so as to suggest conclusions different to those arrived at by the Tribunal. However, I consider that these arguments only go to the merits of the Tribunal’s reasoning, and have not established any jurisdictional error affecting its ultimate conclusions. The truth of the claims made by the applicant was a matter for the Tribunal to decide, not the Court.
Within the particulars of this ground there are complaints that the Tribunal “has never clearly indicated [to] me that I have been required or I have to ‘repeat’ everything” in the written statement, and that she was only giving additional information in the course of her evidence to the Tribunal. It is argued that the Tribunal misunderstood this, when drawing implications from omissions in the evidence she had given to the Tribunal. It is argued that the Tribunal then failed to address her explanations given in the response to the s.424A letter.
However, I do not consider that this submission is properly based on how the Tribunal in fact addressed the applicant’s evidence. Certainly, in the absence of a transcript, I am not persuaded that any unfairness occurred in relation to the Tribunal’s questioning of the applicant, nor that she was misled as to what was happening at the hearing. The Tribunal’s own description of the hearing suggests that questions were put to her which fully allowed her to give a complete picture of what she claimed had happened while she was at Ms L’s house and of her activities when she returned home. I am not persuaded that it was not proper for the Tribunal to draw adverse conclusions from omissions from the account she gave to the Tribunal when questioned.
For the same reasons, I also do not accept Ground 2 of the application which complains:
2.The Tribunal failed to comply with its obligation under s.425 of the Act.
That section obliges the Tribunal to afford an opportunity to the applicant at a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. However, I conclude that the applicant was given that opportunity. She was on clear notice from the delegate’s decision that she needed to persuade the Tribunal as to the truth of her claimed history, in particular, of her active involvement in underground church activities. It appears to me from the Tribunal’s description of the hearing, that its questions probably gave her a full opportunity to give evidence addressing this issue. On the Tribunal’s description, it raised concerns about what she had not said during the hearing, and also did this in its written invitation for comments. She therefore, in my opinion, was given more than the opportunity required by s.425 of the Migration Act.
Ground 3 of the amended application alleges:
3.The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
because it failed to consider her comments made in response to its s.424A(1) letter.
However, in my opinion there is no substance to that complaint. As I have indicated above, the Tribunal’s reasons show that it did consider the applicant’s explanations. The fact that it ultimately rejected them does not show any failure to comply with s.424A(1), nor bias, which is also alleged in the particulars to this ground. Moreover, I accept the submission of counsel for the Minister that in light of the High Court’s recent decision in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26, the Tribunal was probably not obliged to invite written comments on the matters which it raised with the applicant.
Ground 4 of the application alleges:
4.The Tribunal made its finding with bias.
However, the argument presented in support appears to rely upon the failure of the Tribunal to accept the applicant as a witness of credibility in its ultimate conclusions. In my opinion, there is no evidence to support the allegation of bias.
The applicant appeared today, and at her request a written submission in Chinese was read to the Court by the interpreter. It made the same points that were in the amended application, and which I have answered above. The applicant also made points of her own, suggesting that the Tribunal unfairly dealt with the Campsie minister’s letters and his support for her application. She also submitted that it had not given sufficient weight to her explanations in the response to the s.424A letter.
However, I am not persuaded that the Tribunal did not give a genuine consideration to her evidence, and I have concluded that she has not identified jurisdictional error affecting the Tribunal’s decision.
For the above reasons, I must therefore dismiss the application.

I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 14 September 2007