SZMAI v Minister for Immigration
[2008] FMCA 1158
•6 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1158 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Christian – Tribunal not satisfied as to well-founded fear of persecution on return – Tribunal’s reasoning concerning applicant’s attendances at churches in Australia – reliance on finding that applicant did not develop any religious interest or conviction since arriving in Australia – no finding concerning that conduct in terms of s.91R(3)(b) – breach of s.91R(3) – matter remitted. |
| Migration Act 1958 (Cth), s.91R(3) |
| SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 |
| Applicant: | SZMAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 541 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 6 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms C Spruce |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 19 February 2008 in matter 071894498.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated
1 November 2007.
The first respondent pay the applicant’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 541 of 2008
| SZMAI |
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 June 2007 to visit his son, who is studying here. On 3 August 2007, he applied for a protection visa assisted by a migration agent, seeking protection against return to the People’s Republic of China.
In statements attached to the visa application and subsequently forwarded by the agent, he claimed to have been participating in “underground” church meetings, which had been conducted in his factory. He claimed that the factory had been raided in July 2006 and February 2007 by officers of the Public Security Bureau, and that the applicant had been warned on both occasions not to participate in illegal meetings. He claimed that in April 2007 “police always came to my factory to check this and that”, and they told him that they knew “our underground church meetings were still continued”. He said he closed his factory, and came to Australia to ask for protection.
The applicant was interviewed by a delegate, to whom he presented a letter corroborating his attendance at a church in Australia. However, the delegate was not satisfied that the applicant feared persecution on the ground of his religious beliefs, and said that he was obliged to disregard the attendance at a church in Australia pursuant to s.91R(3) of the Migration Act. The delegate refused the visa application on 1 November 2007.
On appeal, the applicant attended a hearing held by the Tribunal on
17 January 2008. He submitted two further documents purporting to corroborate attendances at an earlier time at a different church in Australia. He was questioned about this, and also about his claimed history in China, and about his knowledge and familiarity with Christianity generally. The Tribunal also sent a letter to the applicant inviting his comments upon various matters, including his attendances at church in Australia.
Both at the hearing and in the letter the Tribunal referred to s.91R(3) of the Migration Act. This provides:
91R Persecution
…
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal handed down a decision affirming the delegate's decision on 19 February 2008.
It is unnecessary for me to consider the details of its reasoning, since the ground of review raised by the applicant before the Court in an amended application relies only upon a contention that the Tribunal did not follow the injunction provided in s.91R(3), as construed recently in the Full Court in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105.
The applicant's counsel argued that, as in the three cases which were addressed by the Full Court in that judgment, although the Tribunal properly referred to s.91R(3) as a reason for disregarding the applicant’s conduct in Australia as a reason for finding that he had a well founded fear of persecution, the Tribunal took into account its assessment of his conduct in Australia as part of its reasoning for concluding that the applicant did not have a well founded fear of persecution if he returned to his home country.
As is clear from the judgment in SZJGV, it is necessary closely to examine the findings made by a Tribunal on the evidence concerning an applicant's activities in Australia, and also the Tribunal's reasoning which refers to those findings.
In the present case, the Tribunal's statement of reasons commenced under the heading "Findings and Reasons" with the general conclusion:
The Tribunal does not accept that the applicant is a long-term member of any Chinese ‘house’ church, as claimed, or that he is a genuine Christian of any denomination.
The Tribunal then made findings in a series of dot points in which it pointed to defects in the applicant's familiarity with Christianity generally, before stating its conclusions about the applicant's attendances at churches in Sydney. In relation to this the Tribunal found:
· The Tribunal accepts that the applicant has attended several churches in Sydney. It bases this on his oral evidence, and on the 3 witness statements. However, the Tribunal considers the oral and documentary evidence about the timing and circumstances of this attendance to be unreliable. As noted in the Tribunal’s s.424A letter, the applicant initially failed to mention his son having any role in his introduction to any churches; the witness statements are brief and lack insight; and the Tribunal has particular difficulty placing weight on the letter from Shun Wang, whom the applicant appears to barely know and who declared himself to belong to a different church. (The Tribunal also put to the applicant further adverse information arising from his Department interview, but has decided in the light of his written concerns about possible misinterpretation of his oral evidence on that occasion not to rely on this information.)
· Regardless of when the applicant began attending church (ie whether before he lodged his protection visa application, as now claims, or some months after his arrival in Australia), the Tribunal does not accept on the material before it – in particular, the applicant’s appearance before the Tribunal - that he has acquired any genuine religious conviction during the course of such contacts. (emphasis added)
The Tribunal's reasoning then made further findings explaining why it did not accept the applicant's claimed history of church involvement in China and persecution by local officials. The Tribunal said that it concluded that the applicant was not a witness of truth, and that his refugee claims were without foundation in fact. It therefore rejected all his claims of past harm in China and interest by the authorities.
The Tribunal then again addressed the applicant's activities in Australia, and referred to s.91R(3), as follows (paragraph numbering added):
1. The applicant has not claimed, and the material before the Tribunal does not suggest, that he faces a real chance of Convention-related persecution in China simply for having attended several churches in Australia. The Tribunal is, in any event, not satisfied that the applicant has engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee. It must therefore disregard this conduct in assessing whether he has a well-founded fear of persecution, pursuant to s.91R(3) of the Act.
2. The Tribunal notes in this regard the delegate’s concern that the documentary evidence presented to the Department – Pastor Lawrence’s letter – suggested that the applicant only started going to church some 4 months after arriving in Australia. The applicant corrected this in oral evidence to the Department, saying that he had gone to another church in Auburn, but adding that he did so only after lodging his protection visa application and after speaking to his migration agent. This advice compounded the delegate’s concerns that the applicant had attended church solely to bolster his refugee claims. During this review, the applicant denies having said any such thing, and he contests the interpretation at the Department interview. The Tribunal considers it unwise to rely on such contested material, and it finds it unnecessary to do so given its adverse view of the applicant’s credibility, in particular his lack of demonstrated religious conviction. The Tribunal is not satisfied that the applicant attended church for any reason other than to bolster his refugee application, regardless of whether he did started attending after he lodged his protection visa application, or during the 6 weeks between his arrival in Australia and his application.
Prima facie, paragraph 1 indicates a proper appreciation of the effect of s.91R(3). Paragraph 2 then explains why the Tribunal has not been satisfied in terms of s.91R(3)(b), and does not itself indicate impermissible reliance on conduct in Australia.
The difficulty with the Tribunal’s reasoning arises in its three concluding paragraphs, which appear immediately below the above two paragraphs. These are (continuing the numbering):
3. The Tribunal has found above that the applicant was not a Christian in China, and has not developed any religious interest or conviction since arriving in Australia. It therefore does not accept his claim that he will engage in Christian activity, illegal or otherwise, if he returns to China. Nor does it accept that he will wish to explore Christian practice or teachings in the future.
4. The Tribunal finds on the material before it that the applicant is not a Christian of any denomination; that he will not be so perceived; that he has not suffered any past persecution in China for that or any other Convention-related reason; and that there are no other circumstances that give rise to a real chance of persecution if he returns to China (be it Hunan or Fujian, or anywhere else). It does not accept that the PRC authorities have any adverse interest in the applicant, or any Convention-related motive to harm him or place restrictions on him. The Tribunal also does not accept that the applicant has developed any religious or other interests that may give rise to prospective Convention-related persecution, or that may cause him to have to modify his conduct in order to avoid such persecution.
5. The Tribunal is therefore not satisfied that he has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to China.
In my opinion, it is clear that in paragraphs 3 and 4 the Tribunal is referring back to its dot point findings which I have extracted above, in which it assessed the applicant's “contacts” with Christianity in his attendances at churches in Australia. It will be recalled that, in effect, it there found that the applicant “has [not] developed any religious interests or convictions since arriving in Australia during the course of such contacts”.
This finding, in my opinion, is part of its concluding reasoning in paragraphs 3, 4, and 5 for not being satisfied that the applicant had a well-founded fear of persecution if he returned to China. This appears because it is among the “adverse findings” which the Tribunal had earlier indicated had informed its conclusion “that the applicant is not a witness of truth”. Reliance on the finding is then confirmed in paragraph 3, where it referred to that finding as one of two reasons for rejecting the claim “that he will engage in Christian activity, illegal or otherwise, if he returns to China”. In this context, its finding in paragraph 4 that the Tribunal did not “accept that the applicant has developed any religious or other interest…”, must encompass its finding that such development did not occur during his conduct in Australia.
Prima facie, therefore, the Tribunal has within s.91R(3) taken into account “conduct engaged in by (the applicant) in Australia” when determining that he does not have a well-founded fear of being persecuted for a Convention reason if he returns to China. Even though it is expressed negatively, the finding that he did not develop in Australia any religious interests or convictions would seem to come within the ordinary meaning of “conduct”, in the sense of “personal behaviour” or “way of acting” (see definition of ‘conduct’ in the Macquarie Dictionary).
However, counsel for the Minister argued that the Tribunal's reasoning in paragraph 3 which referred to the absence of the applicant developing religious interests or convictions ‘since arriving in Australia’ should not be read as a reference to findings about his claimed conduct in Australia when attending churches here, but to other findings of the Tribunal which it made in earlier dot points. These considered his evidence given to the Tribunal at the hearing when questioned about his general familiarity with Christianity. Counsel submitted that the Tribunal in the extracted paragraph 3 was referring only to its findings derived from his evidence about Christianity generally. In this respect, counsel pointed out that the Tribunal’s dot point finding which did not accept that “he has acquired any genuine religious conviction during the course of such [Australian] contacts”, was said by it to have been based “on the material before it – in particular, the applicant’s appearance before the Tribunal”.
However, I do not consider that the Tribunal's reasoning based on an adverse finding about the genuineness of the applicant’s convictions “developed in Australia” can be insulated in this manner. In my opinion, the Tribunal’s reasoning shows the same error as was found in the three cases addressed in SZJXO v Minister for Immigration & Citizenship & SZKBK v Minister for Immigration & Citizenship (see the judgment in SZJGV at [28], [29] and [30]). The Tribunal has impermissibly relied upon a finding which was, at least in part, based upon its assessment of the applicant's behaviour when attending churches in Australia, as a reason for not being satisfied on the matter identified in s.91R(3)(a), without having made a finding as described in paragraph 91R(3)(b).
I conclude, on the proper understanding of the Tribunal's reasoning, that it has applied s.91R(3) so as to disregard the applicant’s conduct in Australia insofar as it might be supportive of a refugee claim, but has not disregarded it insofar as the Tribunal has drawn adverse findings from that conduct which were not supportive of the refugee claim.
I therefore accept the ground of review which has been argued before me today.
It is clear from SZJGV that this error is jurisdictional, in the absence of any other independent basis for supporting the Tribunal's decision. No such basis has been suggested to me in this case. The applicant is therefore entitled to the relief claimed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 18 August 2008
2
1
1