SZLSY v Minister for Immigration
[2008] FMCA 582
•7 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 582 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant a citizen of China fearing persecution on the ground of being a member of the Roman Catholic Church – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 424, 425, 474 |
| Applicant: | SZLSY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3787 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 April 2008 |
| Date of Last Submission: | 7 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Application is to pay the First Respondent’s costs fixed in the sum of $3700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3787 of 2007
| SZLSY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of the People’s Republic of China. She has brought an application for judicial review of a decision of the Refugee Review Tribunal. On 13 November 2007, the Tribunal handed down a decision refusing the applicant's application for a protection visa. The applicant filed an application and an affidavit in support on 10 December 2007.
She filed an amended application on 10 March 2008, asking the Court for orders:
(1)that the decision of the Refugee Review Tribunal should be set aside; and
(2)that her application be remitted to the Refugee Review Tribunal for determination according to law.
She claims that the Tribunal committed jurisdictional error in three different ways in dealing with her application. The Minister for Immigration & Citizenship has filed a response. The Minister denies that the Tribunal decision is subject to any jurisdictional error by the Refugee Review Tribunal.
Background
The background to this matter is that the applicant arrived in Australia on 20 May 2007. She applied for a protection (Class XA) visa on 8 June 2007. Her application was refused by a delegate of the Minister on 27 June 2007. The delegate noted that the applicant had claimed to fear persecution because she is a member of the Roman Catholic Church. In particular, the applicant claims to be a member of the underground Catholic Church as opposed to the official Catholic Church in China. The underground church is not recognised by the Chinese government.
The delegate was not satisfied that the applicant had shown that she was of significant adverse interest to the Chinese authorities that would have rendered her likely to have been arrested or otherwise harmed. The applicant applied to the Refugee Review Tribunal on 27 July 2007 for review of the delegate's decision. The Tribunal wrote to the applicant on 7 August inviting her to attend a hearing. The hearing was scheduled for 20 September 2007.
The applicant, through her migration agent, replied to the invitation. She confirmed that she would attend the hearing and would require an interpreter in the Mandarin language. On 17 September 2007, the applicant's migration agent forwarded a written submission to the Tribunal in support of the applicant's claims.
In the submission, the migration agent set out that the applicant was born in a Catholic family in Fujian Province and was baptised in the Catholic Church. The applicant's uncle was a member of the local church council and many Catholic priests and sisters used the applicant's home as a shelter when the authorities were searching for underground Catholics.
The applicant submitted that the authorities did not discover that her family had provided shelter to Catholic members of the underground church. However, they were concerned that they would face trouble if the authorities did find out. They moved to another city in another province but returned from time to time to attend church services. In July 2006, the applicant claimed that she met with other Catholics in an underground church, but their meeting was discovered and the police entered the premises and arrested and detained her uncle.
The police took identity details of the other people present. The applicant left the area and travelled to Malaysia and Singapore in December 2006. She later came to Australia in May 2007 and attends church activities in a Catholic Church in a suburb of Sydney. The applicant provided some photographs, her certificate of baptism, and two identity cards. The applicant attended the hearing on 20 September and gave oral evidence to the Tribunal. She produced her passport to the Tribunal, which was later returned to her.
Refugee Review Tribunal Decision
The Tribunal signed its decision on 31 October 2007, and handed that decision down on 13 November. In the decision record, the Tribunal set out the applicant's claims and provided a detailed summary of the applicant's evidence to the Tribunal. The Tribunal decision record also sets out details of country information upon which the Tribunal relied[1].
[1] See Court Book at page 92-96
The Tribunal's findings and reasons are set out on pages 96 to 99 of the Court Book. The Tribunal found that the applicant was a citizen of China, based on her Chinese passport which she had produced. The Tribunal noted the applicant's claim that she was a member of the underground Catholic Church in China, and that she feared arrest on her return to China because of her involvement in underground church activity in her uncle's home.
The Tribunal accepted that the applicant was a Catholic and has engaged in activities with the underground Catholic Church. However, the Tribunal did not accept that the applicant faced arrest on her return to China or genuinely feared being arrested if she were to return to China. The Tribunal set out its reasons for that finding[2].
[2] See Court Book at page 97 - 98
The Tribunal noted that the authorities made no attempt to arrest the applicant at the time of the raid on the premises or at any time after that even though the authorities knew her identity. The Tribunal noted that the applicant had left China to make a short visit to Singapore and Malaysia, but had returned to lived in China until May 2007.
The Tribunal considered that the fact that the applicant had not been arrested was evidence that the authorities were not interested in arresting her. The Tribunal set out that it considered that the applicant did not have a genuine fear of being arrested. In particular, the Tribunal considered that if the applicant had a genuine fear of arrest when she left China to go to Singapore and Malaysia she would not have returned to China.
The Tribunal accepted the applicant's evidence that due to a shortage of priests in the underground church the applicant had to travel to attend church activities and that other people may have taken an adverse view of the applicant and her family because of their religious belief.
The Tribunal did not consider that that qualified a serious harm under section 91R(1) of the Migration Act. The Tribunal accepted that the applicant was a Catholic who was involved in the underground Catholic Church. The Tribunal also accepted that the applicant attends Catholic Church services in Australia and came to the conclusion that if she were to return to China the applicant would continue to practise her Catholic religion.
The Tribunal noted that even though the Pope had written to Catholics in China urging the official Catholic Church and the underground Catholic Church to unite, it accepted that the applicant did not accept the official Catholic Church and would be likely to attend and continue to attend the underground Catholic Church. The Tribunal noted country information relating to restrictions placed on the underground Catholic Church by the Chinese government.
The Tribunal also noted that those restrictions varied in their severity and effect in different parts of the country. The Tribunal noted that priests and other religious people within the church had been arrested and that they were arrested rather than lay members of the church community. The Tribunal noted that the applicant had not been arrested or detained or questioned except in October 2006, and found that if the applicant were to return to China the probability that she would face serious harm by reason of her religious practices was remote.
The Tribunal did not accept that the applicant had a well founded fear of persecution for a convention reason if she were to return to China. Accordingly, the Tribunal affirmed the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa.
Application for Judicial Review
The applicant claims that the Tribunal fell into jurisdictional error in three ways. First, she claims that the Tribunal committed jurisdictional error in relying on a fact of which there was no evidence. She described the fact as being:
That being that the underground Catholic Church and official Catholic Church of the People’s Republic of China was a law of general application.
The applicant gave particulars of that claim saying:
The uncontradicted evidence was this law, it applies differently between underground Catholic Church and official Catholic Church, between different ethnic groups, and that it was enforced inconsistently within different provinces.
The second ground is that the Tribunal committed jurisdictional error by failing to consider a claim made explicit in the evidence that the applicant faced persecution for reason of her religious activities in China.
The third ground was that the Tribunal committed jurisdictional error in misconstruing and misapplying the words "for reason of" in article 1A(2) of the Refugees Convention. The particulars of that ground, given as follows:
(a)The Tribunal failed to consider that person may be persecuted for more than one reason;
(b)The Tribunal relied on country information, Pope Benedict XV1 addressed a letter to Catholics in China. Between what the applicant has experienced and the particular social group to which it is said she belonged.
The applicant did not file any written submissions but made oral submissions to the Court. She said that the Tribunal had made mistakes in deciding her case. She expressed the view that the Tribunal could not tell the difference between the official Catholic Church and the underground Catholic Church. She said the Tribunal had found that Pope Benedict wrote a letter saying that the official Catholic Church and the underground Catholic Church should be united, but she said that the Chinese government would not allow that.
She told the Court that the Tribunal had accepted that she was a Catholic and would continue to be active in the church. She said that she would continue to attend the underground church rather than the official church because there are differences between them. She told the Court she did not agree with the Tribunal's consideration that she was unlikely to face arrest or persecution in China because of her church membership.
She said the Tribunal came to that conclusion without any basis and evidence. She queried whether the Tribunal understood the circumstances that faced members of the underground church in China.
The solicitor for the Respondent Minister, Ms Mafessanti, submitted that all three of the applicant's grounds must fail. She went on to submit that a fair reading of the Tribunal's decision indicated that the Tribunal undertook a detailed examination of all of the applicant's claims and evidence.
The Tribunal accepted the applicant's claims to be a Catholic but on the basis of independent country information that showed both registered and unregistered churches were generally tolerated in Fujian Province as well as the applicant's oral evidence that neither she nor her family had ever been arrested by reason of their involvement with the underground church. The Tribunal had found that the probability that the applicant would face serious harm by reason of her religious practice was remote.
Ms Mafessanti submitted that this finding was open to the Tribunal on the evidence that was before it. She also submitted that the Tribunal invited the applicant to comment on information orally at the Tribunal hearing in accordance with section 424AA of the Migration Act. She submitted that, however, neither section 424AA or 424A of the Migration Act applied because the Tribunal's decision was based on two things,
1. the applicant's oral evidence provided during the hearing; and
2. independent country information.
She further submitted that there was nothing to show that the applicant was denied procedural fairness or natural justice and that the Tribunal had clearly complied with section 425 of the Migration Act in providing the applicant with a fair hearing where the applicant was on notice of the issues that had to be determined.
Dealing with the applicant's grounds in order, the applicant's first ground is that the Tribunal fell into error by relying on a fact of which there was evidence. That fact, she claimed, was that the underground Catholic Church and the official Catholic Church were covered by a law of general application.
The applicant claimed that the Tribunal had assumed that there is such a law of general application which is applied differently between the underground Catholic Church and the official Catholic Church and was enforced inconsistently between different ethnic groups and in different provinces.
There is nothing controversial about that claim. The Tribunal, in fact, accepted those propositions which arose from the independent country information.
The Tribunal notes the country information set out above, which indicates that the Chinese government restricts the activities of the underground Catholic Church. The Tribunal notes that the authorities' treatment of the underground Catholic Church varies somewhat from district to district, such that the local authorities in the Hebei Province appear to severely curtail the activities of the underground Catholic Church in comparison to the local authorities in Fujian Province (where the applicant comes from) who appear to take a more relaxed attitude to religious activities[3].
[3] See Court Book at page 98
With respect, it is difficult to see what error the applicant claims was committed by the Tribunal in this ground. The Tribunal accepted that the law in China applied differently to the official church and the underground church and was enforced inconsistently in different areas in between different people. The evidence clearly supports that view.
The basis of the Tribunal's decision was that the authorities largely concentrated on priests and members of the clergy rather than lay members of the church. The applicant was a lay member of the church and the Tribunal felt, relying on the country information, that the chances that she would be harmed by the authorities were remote. The evidence supports that conclusion and no jurisdictional error has been made out. Ground 1, therefore, fails.
The applicant's second ground claims that the Tribunal committed jurisdictional error by failing to consider a claim made explicit in the evidence, namely, that the applicant faced persecution for reason of her religious activities in China. That, with respect, is the very claim that the Tribunal did consider. That was the basis of the claim that the applicant made when she applied for a protection visa. It was this claim that was considered by the delegate. It was this claim that the Tribunal considered at the Tribunal hearing and set out the evidence about that claim in a considerable amount of detail in the decision record. Ground 2 must, therefore fail.
The third ground upon which the applicant relies is that the Tribunal committed jurisdictional error in misconstruing and misapplying the words "for reason of" in article 1A(2) of the Refugees Convention. It is difficult to see how that can be made out.
The applicant relies on two particulars, first she claims that the Tribunal failed to consider that a person may be persecuted for more than one reason. The answer to that is, first, that the Tribunal was aware of that fact. The Tribunal had this to say:
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a convention reason, however, persecution for multiple motivations will not satisfy the relevant test unless a convention reason or reasons constituted at least the essential and significant motivation for the persecution feared – section 91R(1)(a) of the Act[4].
[4] See Court Book at page 84
Thus it is clear that the Tribunal did consider that a person may be persecuted for more than one reason. In this case, the applicant only relied on one convention ground, namely, that she had a fear of persecution for reason for her religion. She did not make any claim that she feared persecution because of her race, nationality, membership of a particular group, or political opinion.
There is nothing in the applicant's claim for a protection visa, or her submissions, or her evidence to the Tribunal that would indicate that she made a claim for any other convention reason or that any other claim may be available.
The second particular claims:
The Tribunal relied on country information, Pope Benedict XV1 issued a letter addressed to Catholics in China between what the applicant has experienced and the particular social group to which it is said that she belongs.
The applicant has not claimed to belong to any particular social group other than as a member of an underground Catholic Church. Her claim is essentially that she fears persecution because of her religion and the Tribunal has considered that claim. The applicant told the Court that the Tribunal had misunderstood or misapplied the letter from Pope Benedict XVI to Catholics in China.
She said that even though the Pope had called on Catholics in both churches to unite the Chinese government would not allow that to happen. It is clear that the Tribunal considered that the applicant did not accept the official Catholic Church and would be likely to go on attending the underground Catholic Church if she were to return to China despite what the Pope had said in his letter.
The Tribunal accepted this and assessed her claims on that basis. It is quite clear that the Tribunal considered the applicant's claim that she feared persecution as membership of an underground Catholic Church and if she were to return to China would continue to be a member of the underground Catholic Church.
There is no evidence before me to indicate that the Tribunal has misunderstood the nature of the applicant's claim. It follows that all three of the applicant's grounds of review must fail. I am mindful of the fact that the applicant is not legally represented. The lawyers for the Minister have, in the submission drafted by Ms Maffasanti, considered whether any other arguable case for jurisdictional error may be made out.
The submission points out and correctly that the Tribunal sought to comply with the requirements of section 424AA of the Migration Act by inviting the applicant to comment orally on country information during the hearing. This emerges from the Tribunal decision record on a number of occasions at pages 87 to 91 of the Court Book.
I note that the Tribunal offered the applicant an opportunity to make a further post hearing submission to the Tribunal. The Tribunal told the applicant that because her migration adviser was not present she might want to take a copy of the hearing tapes with her and might wish to respond further to the information that the Tribunal had put to her at the hearing.
The Tribunal explained to the applicant that the Tribunal would not proceed with her decision for a period of one week to enable her to revisit the issues discussed at the Tribunal and to provide any written further responses she wished to make to the Tribunal after consultation with her advisor[5].
[5] See Court Book at page 91 -92
The applicant did not make any further submission to the Tribunal after the hearing. It is significant, however, that she was specifically offered the opportunity to do so. In my view, the Tribunal has dealt with the applicant by way of procedural fairness. There is no breach of section 424AA, section 424A or section 425 of the Migration Act. I am not able to discern any jurisdictional error in the Tribunal decision.
As the Tribunal decision is not subject to any jurisdictional error, it is, therefore, a privative clause decision. Privative clause decisions as defined in section 474 of the Migration Act are final and conclusive and not subject to orders in the nature of certiorari or mandamus. The orders which the applicant seeks, namely, setting aside the Tribunal decision and remitting her application to the Tribunal for determination according to law are, in effect, orders in the nature of certiorari and mandamus.
There is no foundation for either order to be made. It follows that the application must be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 12 May 2008
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