SZLLS v Minister for Immigration - [2008] FMCA 471

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLLS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 471

MIGRATION – RRT decision – Chinese applicant claiming persecution for religious activities – disbelieved by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A(1), 424A(3)(a), 424AA, 425
Migration Amendment (Review Provisions) Act 2007 (Cth), Sch.1 items 18, 33

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant:

SZLLS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3145 of 2007

Judgment of:

Smith FM

Hearing date:

7 April 2008

Delivered at:

Sydney

Delivered on:

7 April 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3145 of 2007

SZLLS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in January 2007, and on 1 February 2007 a migration agent, Priscilla Yu, lodged an application for a protection visa on his behalf. A statement attached to the application explained a history upon which the applicant sought protection against return to the People’s Republic of China.
He claimed that in early 2005 he was introduced to a Christian congregation known as “the Local Church” or “the Shouters”, which was persecuted by the Chinese authorities. This happened through his contacts with one of its members, Mr XL, when assisting the family of a fellow plumber who had been killed by an accident on a construction site. Mr XL had a son, Mr FL, who had been arrested and held in detention because of his involvement in the Local Church. The applicant said:
Since May 2005, I have regularly participated in religious gatherings organised by the Local Church, and I gradually become a devote Christian like Mr XL; and I was baptised in August 2005.
The applicant claimed that when Mr FL was released, they both moved to M. County to avoid the attention of the authorities. From March 2006, they purported to work as self‑employed plumbers, while spreading the gospel from one village to another. He said:
We successfully established 6 secret gathering groups, including nearly 100 people in total. In the meantime, Mr FL and I organised our people in those 6 groups to widely distribute religious propaganda materials.
He claimed that during a return visit to his hometown in September 2006 he was arrested by police, who “suddenly surrounded” a secret gathering of the Local Church. He was sent to a detention centre, but was released about three weeks later. He then returned to M. County, but:
However, I felt that the situation became more and more dangerous; and the police paid more and more attention to religious activities or groups in [the county]. On many occasions, the police suddenly surrounded a village in the evening or on the day time, in order to find whether or not there were any illegal gatherings; and we had to take much care of our religious activities. Although the PSB did not have any evidences showing that Mr FL or I had really been involved in those religious activities in [the county] area, both of us were subjected to question or interrogation by the police for more than 10 times; because we had “adverse records” with the PSB.
The applicant claimed that to escape from further persecution, Mr FL “asked a reliable friend to secretly arrange us to go to the overseas”. The applicant already had a passport, and left China using that document. A footnote to his statement claimed that stamps in his passport showing visits to Cambodia and a visa to Chile and other documents “are counterfeit”.
No supporting evidence for these claims was presented to the Department of Immigration, and a delegate refused the application on 26 April 2007. The delegate was not satisfied that the applicant was a committed Christian who was persecuted for religious reasons, nor that the applicant had a well‑founded fear of being persecuted. The delegate referred to the applicant travelling on a passport in his name via an international airport, and considered that this provided “a strong foundation for confidence” that he was not of adverse interest to the Chinese authorities. The delegate also pointed out that the applicant did not claim to have been practising his professed faith since his arrival in Australia.
On appeal, the applicant attended a hearing in the Refugee Review Tribunal on 31 July 2007, which lasted for about three and a half hours. He presented to the Tribunal a letter on letterhead of “the Local Church in Sydney”, which said merely: “this is to confirm that [the applicant] started coming to the church meeting, approximately six months ago”.
In its statement of reasons, the Tribunal set out a lengthy description of the evidence taken from the applicant at the hearing. He was questioned about his claimed history in China, his religious activities there, his claim to have received the attention of the Chinese authorities, his knowledge of the Local Church, and his exit from the country on a passport issued in his own name. In the course of its questioning, the Tribunal put to him various points where it had doubts about what he told it, and at the end of the hearing the applicant was allowed a general opportunity to respond to a general concern about “many aspects of his evidence” which the Tribunal told him sounded “implausible and unconvincing”. The applicant responded further to this, but did not present any further evidence nor written submissions after the hearing.
On 17 August 2007, the Tribunal invited the applicant to attend a second hearing on 31 August 2007. The applicant attended and, according to the Tribunal, it discussed with him “the implications of s.91R(3)” of the Migration Act 1958 (Cth). This provision directs the Tribunal to disregard conduct engaged in by a person in Australia unless the person satisfies it that the conduct was engaged in “otherwise than for the purpose of strengthening the person’s claim to be a refugee”. The Tribunal briefly referred to this hearing in its statement of reasons, but did not fully describe its course. No transcript of what happened is tendered before me.
In a decision handed down on 13 September 2007, the Tribunal affirmed the delegate’s decision. In its statement of reasons it said that the applicant did not impress the Tribunal “as a reliable, credible and truthful witness”. This general conclusion affected the Tribunal’s assessment of the whole of the applicant’s claimed history of Christian activities and persecution in China.
The Tribunal explained its reasons for taking a generally adverse view of the applicant’s credibility, in particular, referring to his evidence about his account of his arrest, detention and release, and his claims to have been interrogated after the police raid. It pointed to reasons, which in my opinion were open to it, for regarding the applicant’s evidence to have been “neither plausible nor credible” about many matters. The Tribunal also referred to finding the applicant’s evidence about his work and income in China unconvincing, and his account of his ability to exit from China to be implausible. The Tribunal said that, while it accepted that the applicant displayed a good knowledge of aspects of church ideology, there was other information which it thought reasonable to expect someone with the applicant’s claimed religious profile to know, but which he did not appear to know, particularly about the origins and structure of the Local Church.
The Tribunal referred to the brevity of the supporting letter submitted at the first hearing, and it said:
Accordingly, the letter does not add any value to the applicant’s claims regarding his activities or association with the Local Church in China. Having regard to the applicant’s overall credibility or lack thereof, the Tribunal is of the view that his knowledge has been acquired in Australia and his church attendance, participation in gatherings in Sydney and Melbourne and involvement in baptism of others have been designed to assist him in his endeavour to remain in this country by strengthening his case for a protection visa.
It was not satisfied that his conduct had been otherwise than for the purpose of strengthening his claim to be a refugee.
Because the Tribunal did not find the applicant to be a credible and truthful witness, it did not accept any of his claimed history in China of membership of the Local Church and persecution. It was not satisfied that he had been harmed in the past, nor that there was a real chance that he would be harmed for a Convention reason if he were to return to China now or in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision and to order it to reconsider his claims. I can only make those orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
His application presents a series of particulars of two grounds alleging error of law and procedural error.
Paragraphs 1 to 4 of the particulars make two contentions which the applicant developed orally today, reading from a submission in Chinese. These criticised the Tribunal’s procedure at the second hearing, in support of a claim that the Tribunal failed to comply with obligations under s.425 of the Migration Act. As interpreted by decisions of the High Court, that section requires the Tribunal to afford an applicant a real and meaningful opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.
The applicant’s submissions assert that when he attended the second hearing, he was interrupted and was prevented from giving more evidence on the matters which had been covered at the first hearing, and which had caused the Tribunal to express concerns about his credibility. His second complaint is that the Tribunal, when it invited him to respond to its discussion of the effect of s.91R(3), led him to believe “that the Tribunal had already accepted or well understood my evidences in relation to the implications of s.91R(3)”. In effect, he complains that the Tribunal misled him into thinking that it had accepted his evidence.
The difficulty with both of these criticisms is that the applicant has not presented to the Court evidence which supports them. Although the directions I made at the first court date on 30 October 2007 drew to the applicant’s attention that he needed to consider presenting evidence of a Tribunal hearing by way of transcript, he has not done so.
On the Tribunal’s own description of the two hearings, it appears to me that the applicant was clearly on notice when he came to the first hearing that the general credibility of his claimed history was in issue, since it had not been believed by the delegate. According to the Tribunal’s description, it made many statements to him in the course of the first hearing which should have left him in little doubt that the Tribunal might not accept all the significant aspects of his claimed history. He was given an opportunity to respond in the course of that hearing. The purpose of the second hearing appears to have been specifically to bring to the applicant’s attention the implications of s.91R(3), and it is not contested that it did so.
In all these circumstances, I am not satisfied that there was any failure under s.425 by the Tribunal to ensure that the applicant was alive to the issues upon which the Tribunal would decide his case (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152), nor that the applicant was not given a reasonable opportunity to give his evidence and submissions on them, at either the first or second hearings. The Tribunal’s obligation did not extend to requiring the Tribunal to reveal all of its thinking processes followed in its decision, when it came to address the applicant’s evidence relating to his claimed history and his evidence to the Tribunal.
In relation to the applicant’s claim of being misled at the second hearing, I can find no support for this in the Tribunal’s description of the hearing, and I consider it improbable.
I am therefore not satisfied that there was any failure to comply with s.425 in this case.
The particulars in paragraphs 5 to 8 of the application present an argument that the Tribunal failed to comply with obligations under s.424A(1) of the Migration Act, when relying in part of its reasoning upon information it gained from the internet concerning the Local Church. An argument is presented that the information was wrong or was inappropriately used. However, in my opinion, the argument addresses only the merits of the Tribunal’s reasoning and its use of the information which it located, it does not establish any jurisdictional error.
There is also a complaint that the Tribunal should have invited comments in writing on the information it used. However, such an obligation was expressly excluded by reason of s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572).
Paragraph 9 of the particulars to the application contends that the Tribunal could not be satisfied under the “real chance” test that the applicant would not be persecuted on his return to China, because it made a finding that he “displayed a good knowledge of aspects of the church ideology”. It is suggested that the Tribunal implicitly accepted that he was a genuine Christian.
However, in my opinion the Tribunal’s reasons cannot be read as containing such a finding, given its view about the applicant’s conduct in Australia. The Tribunal was obliged to consider whether it accepted the history of persecution presented by the applicant, when making an assessment under the “real chance” test (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, and Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220). In the present case, the Tribunal gave reasons, which in my opinion were open to it, for disbelieving the applicant’s claim to have been persecuted in China for Christian activities in the Local Church. I can detect no failure by it to appreciate the effects of the “real chance” test, before concluding that the applicant’s fear of persecution if he returned to China was not well founded.
The applicant has filed a written submission which seeks to present some of the criticisms of the Tribunal’s hearing which I have addressed above as a failure by the Tribunal to comply with obligations under s.424AA of the Migration Act.
There are several possible responses to these arguments. However, I accept the short answer presented by the Minister’s counsel. This is that s.424AA did not apply to the proceeding before the Tribunal, since the application to the Tribunal had been lodged on 25 May 2007, and s.424AA only applied to an application made after 29 June 2007 (see Migration Amendment (Review Provisions) Act 2007 (Cth), Sch.1 items 18 and 33).
It is also submitted in the applicant’s written submission that the Tribunal failed to make genuine attempts to consider the applicant’s evidence properly and fairly. However, in my opinion the Tribunal’s reasons show it did make a genuine attempt to consider whether the applicant should be believed. I consider its conclusion to the contrary was open to it on the evidence.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. I must therefore dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 April 2008