SZLYS v Minister for Immigration
[2008] FMCA 1397
•23 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1397 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424AA, 424A |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 SZMCD v Minister for Immigration & Anor [2008] FMCA 1039 SZMEK v Minister for Immigration & Anor [2008] FMCA 1068 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 |
| Applicant: | SZLYS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 293 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
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 293 of 2008
| SZLYS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 dated 11 January 2008 and handed down on 22 January 2008, affirming a decision of the delegate of the first respondent not to grant the application a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in October 1998 and applied for a protection visa in July 2007.
In a statement accompanying her protection visa application she claimed to fear persecution in China on the basis that she had breached the family planning law or one child policy in China, in that she had had a second child in breach of the one child policy in 1995 and had been fined as a result.
She also claimed to fear persecution on the basis that since arriving in Australia she had become a Christian, having been baptised in April 2007. She claimed that if she returned to China she would continue to practise her religion and would organise people to join church meetings and that she was afraid that the Communist Party would limit her religious activities.
Her claims were supported by statements from persons associated with the church she attended in Australia and references attesting to her character.
The application was refused by a delegate of the first respondent on the basis that the applicant did not have a well-founded fear of persecution.
The applicant sought review by the Tribunal by application of 10 October 2007. She was invited to and attended a Tribunal hearing. Two witnesses also gave evidence on her behalf at the Tribunal hearing.
After the Tribunal hearing the applicant’s migration agent provided supporting documentation, including additional letters of support, a copy of the applicant’s baptismal certificate, photographs, information from the internet in relation to the situation of Christians in China, and a statement containing questions said to have been extracted from the comments made by the delegate of the first respondent and the answers from the applicant addressing issues about her Christian beliefs and her fear that if she returned to China she would look for a family church, join its activities and would use her experience to give testimony and organise activities.
The applicant also claimed that when she left China she was escaping from persecution on the basis that she had broken the family planning laws. She claimed that after she had agreed to undergo voluntary sterilisation and pay a fine the authorities had agreed to register her second child.
In its reasons for decision the Tribunal outlined the claims made by the applicant at various times, including her elaboration on her claims and the issues discussed with her in the course of the Tribunal hearing. It summarised the evidence of her witnesses, the other evidence provided by her and set out in some detail independent country information in relation to the treatment of Christians in the applicant’s home area, the nearby city of Wenzhou and the province of Zhejiang.
In its findings and reasons the Tribunal considered the applicant’s claims that she had two children who were born in China, had never left China and were both registered. It concluded that the children, and in particular the second child, did not suffer any harm because the applicant breached the one child policy. It considered the applicant’s claims that after the second child was born she had agreed to have a sterilisation and pay a fine in order to register the child and her claim that her father was arrested and charged with a breach of the Family Planning Act and the police had sought to intimidate him. However the Tribunal had regard to the fact that the applicant had given birth to the second child and was subsequently able to register that child and while it accepted that the medical procedure she underwent was an unpalatable choice that was made under some pressure, it did not accept that it was a forced sterilisation or that the medical procedure and fine involved persecutory harm to the applicant.
The Tribunal did not accept that there were other adverse consequences after the second birth. It had regard to the fact that the events complained of were over a decade in the past and remote in time. On that basis it found that the applicant’s breach of the one child policy in 1995 did not establish a real chance of prospective persecution in China.
The Tribunal also considered the claim that arose out of the applicant’s evidence at the hearing in relation to government officers coming to her home and bullying her, the fact that her land was compulsorily acquired and her claim that she was paid insufficient compensation.
However the Tribunal found that the acquisition was as a result of overhead power lines across the applicant’s land, was not related to the applicant’s breach of the one child policy, and that she was not singled out for the land acquisition for any Convention reason. It found that the land acquisition was not persecution for a Convention reason and did not establish a real chance of prospective persecution in China for a Convention reason.
Based on the applicant’s evidence at the hearing, the evidence of her witnesses and supporting documents, the Tribunal accepted that the applicant was now a practising Christian and that she engaged in such conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee. It observed that as she became a Christian in Australia she had no claim to have been persecuted in China in the past as a result of her religion.
The Tribunal then considered her evidence about her activities in Australia in connection with her religion. It accepted that she attended church and other church activities regularly, that she appeared enthusiastic about her church involvement and that she had shown some knowledge of religion, but at a shallow level. It referred to her evidence that she said she handed out leaflets at train stations and encouraged people to attend church, but that she did not proselytise.
The Tribunal referred to the supporting evidence. It noted that her witnesses had described the applicant as a simple person who was sincere in her belief and that the Minister from her church had provided evidence that she was baptised, active in the church and willing to help others in need.
The Tribunal accepted that the applicant was a regular and devout churchgoer. However it concluded that she was not a church leader and that she did not actively proselytise. It stated: “She is a person who has a low profile in Australia, and based upon her current activities she would reasonably have an equally low profile in China.”
The Tribunal then considered the treatment of Christians, in particular Protestants (as the applicant claimed to be) in China. It had regard to the fact that the applicant claimed that she lived in a village in Leqing, a county-level city in the prefecture-level city of Wenzhou in the province of Zhejiang. It described the geography of this area and the fact that the village which she claimed to come from (referred to in the protection visa application) could not be located in any of the sources searched.
The Tribunal found it reasonable to consider that on returning to China the applicant would live with her close family in the area close to, but not in, Wenzhou. It addressed her claims that she would only attend an unregistered Protestant church in China and that if she was unable to find one she would establish one. However it had regard to independent information showing that Zhejiang province was home to the largest number of Protestant churches in China and that Wenzhou was home to the largest concentration of Christian churches in China. It concluded that the applicant, with her level of Christian belief and commitment, would be able to find an unregistered Protestant church in her home area in which she and the children could become involved and where she could worship in the way she wished. It therefore discounted her suggestion that she would establish her own home church and Sunday school in China.
The Tribunal referred to independent country information showing that Protestants were tolerated in China and that the treatment of Protestants and house churches by the authorities varied across provinces and that most of the reported detentions were of church leaders. It had regard to the information that a significant proportion of the population in the area from which the applicant came was Christian and that this gave church leaders much greater authority in confronting local party officials. It discussed information about the proliferation of churches and Sunday schools in the area and reiterated that it concluded that the applicant would have ready access to and be able to freely associate with an unregistered Protestant house church in the Wenzhou area of her choice and would be able to worship there and organise for her children to attend Sunday school.
The Tribunal acknowledged that there had been, and continued to be, incidents involving actions by the authorities against Christians in Zhejiang province, but stated that only dated information had been found concerning the treatment of Protestants and the house church movement in the city in which the applicant’s village was located, which it found suggested that there had been scant incidents concerning Christians in that area in recent years. It also found that the incidents reported in the last few years in the province of Zhejiang largely concerned the destruction of a handful of churches by the authorities and that the applicant was not associated with a group whose churches had been destroyed.
The Tribunal concluded that the applicant had little profile as a Protestant churchgoer in Australia and would reasonably have little profile in China, that she would be able to practise her religion in her home area in the way she wished, would have access to home churches and that her worship would not be restricted. It discounted her suggestion that she may need to establish a home church in light of information showing that there was a plethora of home churches in her own area. It found that the incidents in her province had been occasional and that few concerned Wenzhou, let alone the area outside Wenzhou. The Tribunal concluded that the chance the applicant would suffer harm amounting to persecution for reason of her religion in her home area in the reasonably foreseeable future was remote.
The Tribunal also considered the applicant’s claims cumulatively, but did not consider that the applicant, a Christian, would be more likely to come to the authority’s attention because of her past breach of the one child policy over a decade ago. It was not satisfied that the applicant had a well-founded fear of persecution for one or more of the Convention reasons now or in the reasonably foreseeable future if she returned to China. The Tribunal was not satisfied that the applicant was a refugee.
The applicant sought review by application filed in this Court on 8 February 2008. It emerged that the applicant may not have had the opportunity to participate in the panel advice scheme due to some confusion in relation to a change of address. The hearing was adjourned to enable her to have that opportunity. She has not filed written submissions. She was given the opportunity to make oral submissions.
The first ground in the application is that the Tribunal failed to act judicially and thereby failed to accord the applicant procedural fairness in rejecting her claim to fear persecution upon refoulment by reason of information about her religious belief while in Australia being discovered by Chinese authorities.
Insofar as this is intended to suggest that the applicant made a claim, or that the material before the Tribunal squarely raised a claim, that the applicant feared persecution on return to China on the basis of information about her activities in Australia being discovered by Chinese authorities, it is not apparent on the material before the Court that the applicant in fact made such a claim, as distinct from her claims about her intention to practise Christianity on return to China or that such a claim arose squarely on the material before the Court (cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1).
The Tribunal considered the possibility that as a Christian the applicant would be more likely to come to the authorities’ attention because of her past breach of the one child policy, but was not satisfied of that having regard to the fact that the breach of the one child policy was resolved over a decade before the Tribunal decision.
More generally, in relation to the first ground, insofar as it is a challenge to the Tribunal’s factual findings that the applicant had a low profile and was not a proselytiser, these findings were open to it on the material before it, including in particular the applicant’s oral evidence.
The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. It appears from these reasons that the Tribunal discussed with the applicant her activities as a Christian and that she told it that she did not proselytise. The Tribunal put to her that it might conclude that she had a low profile as a Christian and may not suffer as a mere house churchgoer on return to China. It also put to her that someone with her profile as a Christian would not attract the attention of the authorities even if she attended a house church. Insofar as this ground seeks merits review, merits review is not available in this Court.
The first particular to this ground is that it was not open to the Tribunal to reject the applicant’s “claim fear of persecution without cogent material support a conclusion that my commitment to Christianity” [sic]. Insofar as this is intended to suggest there was no evidence for the Tribunal’s finding, the Tribunal’s findings in respect of the applicant’s profile and in relation to whether she had a well-founded fear of persecution were based largely on the evidence of the applicant, on its acceptance of the evidence of supporting witnesses and supporting statements, and on its view of the independent country information. It cannot be said that there was no evidence before the Tribunal to support such claims.
The second particular to this ground recites the fact that the Tribunal rejected the applicant’s claim that her fear was well founded in circumstances where it relied on her witnesses who described her activities and attendance at church activities. It refers to the fact that the Tribunal concluded she was a person of low profile. It is apparent from the Tribunal reasons for decision that the Tribunal discussed with the applicant her activities including attending church, telling young people to come to the church, distributing pamphlets but not proselytising and that it raised with her that she appeared to have a low profile. It also considered and accepted evidence from the witnesses as to the sincerity of the applicant and simplicity in her approach. This particular does not establish jurisdictional error.
Ground 2 is that the applicant was denied procedural fairness on the basis that she was said to have been deprived of a fair hearing. The particulars are that the questions and answers during the Tribunal hearing were not properly interpreted from Mandarin to English and English to Mandarin. The applicant suggested that the government solicitor should provide a transcript of the Tribunal hearing. There is, however, no transcript of the hearing before the Court. This is not a case in which anything in the Tribunal reasons or otherwise in the material before the Court is such as to suggest that it is necessary for the Court of its own volition to obtain or to seek that a transcript be put before the Court by the respondent’s solicitors. It was open to the applicant to put any evidence before the Court on which she wished to rely.
There is nothing in the Tribunal reasons for decision and its account of the Tribunal hearing to indicate any difficulties at all with the interpreter. The applicant has not particularised this claim. Contrary to what she suggests, the Tribunal account of the hearing indicates that issues were raised with her and that her answers were coherent and responsive insofar as they are recorded. There is no evidence to suggest any denial of a fair hearing in the manner contended for by the applicant. This ground is not made out.
Ground 3 is that the Tribunal did not comply with s.424A of the Migration Act 1958 (Cth). The first particular is that the Tribunal failed to give the applicant important information completely and clearly before, during or after the hearing, which was used as the reason or part of the reason for affirming a decision under review.
The second particular is that the Tribunal failed to ensure during the hearing that the applicant understood why country information was relevant to the review and that the Tribunal did not cite any information about her well-founded fear of persecution or any serious harm if she returned to China.
Insofar as the applicant takes issue with the Tribunal’s reliance on independent country information, such information is within the exception in s.424A(3)(a) of the Act, (see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178). Insofar as she complains more generally of a failure to comply with s.424A, that is not made out on the material before the Court.
The Tribunal decision was based on consideration of the evidence given to the Tribunal by the applicant and on country information.
Counsel for the first respondent discussed the possible application of s.424A to the evidence given by the witnesses at the Tribunal hearing in light of the decision of the High Court in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 . However, it is apparent that such information as was given by the witnesses was not the reason or part of the reason for affirming the decision under review. Rather the Tribunal accepted on the basis of all the evidence, including the witnesses’ evidence, that the applicant was in fact a Christian as she claimed and had engaged in the activities in Australia she claimed she had engaged in in connection with the Christian church, which it set out in its reasons for decision. In these circumstances such information cannot be said to be the reason or a part of the reason for affirming the decision under review. It was not subject to the obligation in s.424A(1).
Insofar as the applicant intends to contend that the Tribunal should have put to her its subjective appraisal of the information before it, such subjective appraisal or provisional reasoning does not attract the obligation under s.424A(1) (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]).
I also raised with counsel for the first respondent the possibility that the applicant sought to invoke or rely on s.424AA of the Act, insofar as she contended that the Tribunal had failed to put certain information to her for comment in the course of the Tribunal hearing and might be understood to be contending that the Tribunal had an obligation under s.424AA to put independent country information to her in the course of the hearing.
However there are now a number of authorities of this Court and also of the Federal Court in relation to the connection between s.424A and s.424AA which, as Federal Magistrate Scarlett stated in SZMEK v Minister for Immigration & Anor [2008] FMCA 1068 at [44], complements s.424A (also see SZMFR v Minister for Immigration & Anor [2008] FMCA 978, SZMCD v Minister for Immigration & Anor [2008] FMCA 1039).
Moreover, as Justice Marshall indicated in SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12] s.424AA “places no obligation on the Tribunal but enables it, if it so chooses, to orally give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review. It does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on”.
In SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270, Cowdroy J observed at [27] that while s.424AA does not contain an equivalent provision to s.424A(3): “[Section 424AA] is merely an alternative form of notification available to the Tribunal”. On that basis his Honour considered that the exclusions contained in s.424A(3) applied with equal force to s.424AA.
Accordingly, material that is not information for the purposes of s.424A(1) of the Act is also not information for the purposes of s.424AA. In other words, because country information is within the exception in s.424A(3)(a), it is not information to which the obligation in s.424A(1) or the alternative way of meeting the obligation of disclosure in s.424AA is applicable. On that basis no failure to comply with s.424AA is established.
I note in relation to the hearing that it appears that the Tribunal raised with the applicant dispositive issues under s.425, in particular its view that a mere house churchgoer with a low profile would be unlikely to have a well-founded fear of persecution. Indeed it raised with the applicant some aspects of country information to that effect. It was not necessary for the Tribunal in the course of the hearing to put to her particular items of country information in the manner in which she contends should have occurred. No failure to comply with s.424A or s.424AA is made out.
In oral submissions the applicant raised a number of other matters. She contended that the Tribunal had not considered her religious belief in Australia and that if she returned she would face persecution from the authorities in China as a practising Christian.
However it is clear from the Tribunal reasons for decision that it not only considered her religious beliefs in Australia, but that it accepted that she was a practising Christian and considered whether she would have a well-founded fear of persecution on return to China.
The Tribunal engaged in the necessary prospective, or forward-looking finding in concluding, for the reasons that it gave, that the chance the applicant would suffer harm amounting to persecution for reason of her religion in her home area in the reasonably foreseeable future was remote.
The applicant also contended that the Tribunal had found that she was a Christian but did not consider this. This seems to suggest that because the applicant was a Christian the Tribunal should have found on that basis that she had a well-founded fear of persecution on return to China. However the Tribunal considered this issue but found that in the particular circumstances of the applicant she did not have such a well-founded fear of persecution. No error is established on this basis.
The applicant also contended that the Tribunal did not understand that people were persecuted because of religion in China, indicating that according to country information those belonging to churches in Zhejiang province were in fact persecuted.
However the Tribunal considered at some length independent country information in relation not only to the situation of Christians or Protestant Christians in China generally, but specifically in relation to the area from which the applicant came at the levels of province, prefecture-level city and county-level city, observing that it had not been able to locate on a map the village in which the applicant claimed to live, but looking at the whole of that area.
Its findings were open to the Tribunal on the information before it for the reasons that it gave. Insofar as the applicant takes issues with the particular country information relied on, the weight to be given to particular items of country information is a matter for the Tribunal. The applicant referred specifically to a United States State Department Annual Report on International Religious Freedom in China, which she suggested reported persecution of church members in her province. That part of the report to which she referred states that in the province of Zhejiang regulations specifically prescribe proselytising. However as indicated, the Tribunal found that the applicant had not engaged in proselytising, had a low profile and could reasonably be regarded or expected to have a similar low profile on return to China.
More generally, while the Tribunal accepted that incidents had occurred in relation to the practice of Christianity in China, particularly in relation to the church leaders and proselytisers, it considered whether the applicant faced such a prospect, but found that she would not have a well-founded fear of persecution for reason of her religious belief or practices, albeit the situation may be different for other Christians.
The applicant also took issue with the Tribunal’s understanding of where she lived in China. She pointed to the fact that in her protection visa application she had provided the name of the village, city and province in which she lived. She suggested that the Tribunal mistakenly considered that her home was in Wenzhou when she had said that she lived close to Wenzhou. However, these concerns do not establish that the Tribunal misunderstood the applicant’s claims about her address, let alone that it misunderstood those claims in a manner giving rise to jurisdictional error. The Tribunal understood and considered her claim (as set out in her protection visa application) that she lived in a village in Leqing, which it described as a county-level city within the prefecture-level city of Wenzhou in the province of Zhejiang in south-east China. It understood that the Leqing administrative region and city lay to the immediate north-east of Wenzhou and found that it was reasonable to consider that on return to China the applicant would return to live with her close family in the area close to, but not in, Wenzhou.
As indicated, the Tribunal considered country information in relation to each of those areas in its reasons for decision and on that basis concluded that the applicant would have ready access to and be able to freely associate with an unregistered Protestant house church in the area of her choice and would be able to worship there and organise for her children to attend Sunday school. No error is made out on in relation to the Tribunal’s consideration of where the applicant lived and the impact of that consideration on its findings and reasons.
It was also contended that the Tribunal did not appreciate that religious beliefs could be a Convention reason. The Tribunal clearly did understand and appreciate that religious persecution could be a Convention ground, but was not satisfied that this particular applicant had a well-founded fear for that reason.
The applicant reiterated that she was a Christian and as a Christian how could anyone conclude that she would not face persecution. However merits review is not available in this Court and the Tribunal findings in that respect, as indicated, were open to it on the material before it for the reasons that it gave. Insofar as this concern may be seen as taking issue with the Tribunal’s reliance on independent country information the selection of country information and the weight to be given to particular items of country information is a matter for the Tribunal. It has not been established that the Tribunal findings were not open to it on the material before it, or that it failed to have regard to contrary information. I note that it referred to the fact that the applicant had provided country information which it had considered.
As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful. She indicated that she had no money. Of itself that is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. I consider that the amount sought is appropriate having regard to the nature of this and other similar matters and the provisions of the Federal Magistrates Court Rules.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 8 October 2008
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