SZMCH v Minister for Immigration

[2008] FMCA 1181

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1181

MIGRATION – RRT decision – Chinese applicant claiming fear of persecution as Shouter – disbelieved by Tribunal – no jurisdictional error established – no breach of s.91R(3) by having regard to delay in making visa application – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b), 424AA, 424A(1), 424A(2A), 424A(3)

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419, [2006] FCAFC 195
Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26
SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359
SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105

Applicant: SZMCH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 743 of 2008

Judgment of: Smith FM

Hearing date: 13 August 2008

Delivered at: Sydney

Delivered on: 13 August 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Knackstredt

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant pay the respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 743 of 2008

SZMCH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in January 2007 with her teenage daughter, who held a student’s visa to study here.  The applicant held a six month temporary visa, and shortly before it was due to expire she lodged a protection visa application on 31 July 2007, assisted by a migration agent, Ms Priscilla Yu. A statement attached to the application set out the history upon which the applicant claimed to fear persecution if she returned to the People’s Republic of China. 

2. The statement referred to the applicant having suffered penalties under the one child policy as a result of having three children, and it also described hardship as a result of being cheated by a labour contractor who had arranged for her to work in Tonga in 2004 and 2005. The statement was unclear whether the applicant made refugee claims relating to those two experiences, and ultimately the Tribunal held that they did not give rise to a real chance of persecution if the applicant returned to China.

3. In her statement, the applicant’s refugee claims relied upon a claimed history of involvement in an underground church called “the Local Church” or “Shouters”.  The applicant claimed to have been introduced to a congregation of this church in May 2006 by a “kind girl” who moved to her village.  She claimed to have attended gatherings and been baptised in October 2006.  She claimed to have attended gatherings of the church in her village from November 2006, which grew to 36 members.  She claimed to have “actively attended gatherings or weekly worships of the Local Church”, proselytised to local villagers, and assisted the founder to distribute Bibles to villages around her home village. 

4. The applicant did not claim to have encountered any persecution before she left China in January 2007, but said that in April 2007 the founder of her congregation and 10 members were arrested, and “the rest had run away in order to escape from persecution.  I have been regarded as the first member recruited by [the founder] and I have also been listed as one of founders and major activists of the gathering group in my home village.  As a result, I have been put on the blacklist of the PSB, and it means that I must be arrested by the police immediately should I return to China”. 

5. A delegate of the Minister refused the application on 8 October 2007.  The delegate accepted that the applicant might have been converted to Christianity and participated in some religious activities in China, but noted that she did not claim to have been harassed, arrested or wanted by the Chinese authorities due to her religion.  It noted her claims that several people had been arrested in April 2007, but could find no independent material to corroborate this, and considered that her low profile suggested that she would not pose a real chance of persecution should she return to China. 

6. On appeal, the applicant attended a hearing held by the Tribunal on 10 January 2008. She presented documents to corroborate an association with the Local Church in China. These included a letter to her from a person in America, Mr ZY, who had been persecuted as a Shouter.

7. At the hearing, the Tribunal closely questioned the applicant about her claimed activities in China, and her knowledge and commitment to Christianity and the Local Church. In the course of this, the Tribunal put several matters to the applicant to indicate its concerns about the credibility of aspects of her claims. It is difficult to make any confident findings about how the Tribunal put matters to the applicant, since there is no transcript of the hearing in evidence before the Court. The applicant was given an opportunity to present a transcript but has not done so.

8. The matters put to the applicant included information of a general nature about the Local Church and persecution of Christians in China.  The Tribunal also said at the end of its description of the hearing: 

   The Tribunal indicated it was concerned about her story that Church members were arrested in April 2007 ‑ she had said her husband went into hiding ‑ but it did not make sense that he would continue his employment but not come to the attention of the authorities.  She stated the authorities wanted to arrest her, not her husband, but he was afraid.  Her husband was afraid [he may be arrested].  The Tribunal indicated that seemed different to her earlier evidence.  She stated they wanted to arrest her but she was not home, she was abroad.  The target was her.  The Tribunal indicated that it doubted, based on her description of what she did in China, that the authorities would have any interest in her.  She had described how she first came into contact with a Church member in June, and then attended some gatherings, and then slowly became involved in the Church, but within 6 months had left for Australia.  This did not suggest she had any profile as a local Church member in China.  She stated she spread the Good News and this is not allowed. 

   The Tribunal indicated during the hearing it raised areas where it doubted her evidence and had also given independent information about Fujian ‑ and she had commented.  The Tribunal asked if she required further time to give comments, including in writing.  She considered and then stated she needed religious freedom which she will not have if she returns to China.  The Tribunal asked if she had anything else to say.  She asked that the Tribunal give her freedom. 

   She stated her daughter was still here on a student visa.  She lives with her daughter who is a Year 12 High School student. 

9. The Tribunal handed down a decision affirming the delegate’s decision on 4 March 2008.  In its statement of reasons it set out in detail the claims made by the applicant, and gave its description of the hearing.  It also gave an extensive examination of general country information. 

10. Under the heading “Findings and Reasons”, the Tribunal explained why it did not think that the applicant’s history in relation to the one child policy, and her compensation claim against the labour contractor, gave rise to a real chance of prospective persecution in China. 

11. The Tribunal then addressed the applicant’s evidence about her religious association.  It explained its conclusions that the applicant revealed “scant knowledge of Christianity”, and had given a “brief and shallow account of her activities in China”.  These matters led the Tribunal to conclude that “she was not a Christian in China”. 

12. The Tribunal referred to the letter from Mr ZY: 

    The applicant claims that she is currently a practicing Christian.  She provided a letter from Mr ZY who lives in the USA: this indicated he had been told by other church members that she was a member of his church and papers relating to him.  However, she indicated at the hearing that she previously knew Mr ZY in 1999; she had told him of her application; and he offered to help.  She also said that he had been living in the USA and had not observed her devotion directly.  Accordingly, the Tribunal gives little weight to the letter as evidence of her religion and religious activities in China, and subsequently, Australia. 

13. The Tribunal also addressed the chronology in which the applicant had made her protection visa application, and concluded: 

    The applicant’s delay before lodging her application on the last day of her visa does not support her claim that she feared to return to China because she was a member of the Local Church and does not support her claims concerning events in China in April 2007.  

14. The Tribunal considered the applicant’s evidence about the claimed events in April 2007, and pointed to inconsistent and tailored evidence given to the Tribunal about her husband’s movements at that time. 

15. In conclusion, the Tribunal said that it had “considered the evidence cumulatively and finds that the applicant is not a credible witness.  The Tribunal finds that she has fabricated her story for the purposes of claiming refugee status”.  On that general finding, the Tribunal rejected the detailed particulars of her claimed history giving rise to her fears of persecution. The Tribunal was not satisfied that she 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.

16. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for reconsideration. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee or should be believed, nor whether she should be given any permission to stay in Australia.

17. The applicant has filed two documents containing grounds of review. The first appears to have been prepared with the assistance of her migration agent, and at the request of the applicant its contentions were again read to me today by the interpreter from a statement written out in Chinese. An amended application appears to have been drafted by someone else, and contains different arguments. I shall address both sets of contentions.

18. The original application has three grounds. The first ground argues that there was a failure by the Tribunal to comply with obligations under s.424AA of the Migration Act 1958 (Cth). In particular in relation to pieces of information which are identified as follows:

    1)… the applicant was unaware of any Church complex in (L district) … but according to independent information, the Local Church in Fujian’s rural L district, for example, recently built a massive church complex with a 4,000 person seating capacity and adjoining classrooms for Sunday … 

    2)… on 16 January 2007 the applicant’s eldest daughter was granted an Australian student visa now valid to September 2009.  The applicant was concurrently granted a 6 month Australian visa to travel with the daughter, and both arrived in Australia on 30 January 2007 … 

    3)The applicant’s student visa ceased on 31 July 2007 and she applied for the Protection Visa on the same day, some 6 months after arriving in Australia.  

    4)Information in relation to ZY’s supporting letter. 

19. The ground argues: 

    I was invited to appear before the Tribunal because of an invitation under section 425, but the Tribunal failed to ensure, as far as is reasonably practicable, that I have understood why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and the Tribunal failed to advise me that I may seek additional time to comment on or respond to the information. 

20. The Minister’s counsel submitted that, in fact, the Tribunal did not purport to follow a s.424AA procedure in relation to any information which it put to the applicant at the hearing, and that it was not required to do this under the terms of that section, since it confers a discretion. Moreover, for reasons which will appear below, the Tribunal did not need to follow that procedure at the hearing to avoid obligations arising under s.424A(1) in relation to information which it relied upon when reaching its decision.

21. Although it is unclear from the Tribunal’s statement of reasons, on balance, I consider that the Tribunal probably thought that it was complying with s.424AA in relation to all the matters which it put to the applicant. Its description of the hearing suggests that it raised concerns and explained them to the applicant in the course of the hearing. At the end of the hearing it appears to have identified particular matters, and then invited the applicant to ask for further time to comment, including in writing.

22. Assuming that it did purport to follow the s.424AA procedure, I am not satisfied that any material defect in that procedure occurred in relation to the matters identified in this ground of the application, particularly in the absence of a transcript which would allow me to examine what was actually said to the applicant by the Tribunal.

23. On the Tribunal’s description of its hearing, the implications of the construction of a large Local Church complex within nine kilometres of the applicant’s village were, in my opinion, probably properly put to the applicant. This information was put to her twice in the course of the hearing, and it must have been apparent to the applicant that the Tribunal might have difficulty accepting her lack of knowledge of such a church complex, if her history of involvement in the Local Church in her own village was true.

24. The implications of the applicant’s delay in making a refugee claim clearly were put to the applicant, since the Tribunal records in its reasons that it said to her: “it may be that the Tribunal will consider the long gap between her entry to Australia to her application showed she only made the application because her student visa was ending”. The Tribunal does not appear to have placed any separate significance on the daughter’s travel.

25. The Tribunal discussed with the applicant the documentation from Mr ZY, and explained to her that “it cannot be certain who he is”, and that “the weight it would give the documents would depend on the findings concerning all of the evidence”. 

26. I would not conclude from the evidence before me that the Tribunal did not ensure that the applicant could understand the relevance of any of these matters which were put to her. Clearly, it did offer her an opportunity to respond, and to have additional time to do so. I am therefore not satisfied that any breach of s.424AA occurred in this case as argued.

27. The second ground in the application contends that the Tribunal failed to comply with its obligations to invite written comments under s.424A(1), in relation to the same particulars of information which I have extracted above relevant to the first ground.

28. If I am correct in thinking that the Tribunal did comply with s.424AA, then the Tribunal was not obliged to follow a procedure under s.424A(1) (see s.424A(2A)). Moreover, if s.424A(2A) did not apply, I accept the submissions of the Minister’s counsel that there was no information which the Tribunal has relied upon in its findings, which it was required to have put to the applicant for written comment.

29. The Tribunal’s reasoning appears to rely entirely upon evidence given by the applicant to the Tribunal, upon general country information, and upon its conclusions concerning the consistency with which the applicant’s refugee claims had been presented for the Department and the Tribunal. No obligations arise under s.424A(1) in relation to such information and reasoning (see s.424A(3) and SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [18]).

30. The only possible doubt about this conclusion, might concern the Tribunal’s reasoning based upon the applicant’s delay in making her protection visa application, and its references to the travel of the applicant and her daughter to Australia. However, this information was certainly discussed with the applicant in the course of the hearing, and on the Tribunal’s description of this evidence, and in the absence of a transcript, I am not satisfied that the applicant did not affirm the uncontentious chronology of these events in her evidence to the Tribunal (cf. SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 at [24], and NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419, [2006] FCAFC 195 at [62]).

31. For all the above reasons, I am not persuaded that a breach of s.424A(1) is made out in this case.

32. The third ground in the application contends that the Tribunal “failed to consider important evidence in my case”, being the letter from Mr ZY. Arguments concerning this are made in the application, including reference to a human rights update which is said to refer to him. However, there is no evidence that that material was before the Tribunal.

33. It is clear that the Tribunal did consider the letter from Mr ZY and the material concerning him, since it made the assessment of it in its statements of “Findings and Reasons” which I have extracted above. In my opinion, this consideration was open to the Tribunal on the material before it, and the arguments presented to the Court concern only the merits of the Tribunal’s reasoning. I do not consider that any jurisdictional error is established under this ground.

34. The applicant’s amended application contains two grounds. The first ground contends:

    1.The Tribunal’s decision was affected by apprehended bias. 

35. I do not consider that any of the particulars given for this ground, considered in the context of the Tribunal’s description of the hearing and its ultimate reasoning, might give rise to any apprehension that the Tribunal prematurely closed its mind to a proper consideration of the applicant’s case, under the test identified by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425.

36. As counsel for the Minister points out, the Tribunal was not bound to take evidence on the telephone when invited, and the fact that it gave a rational reason for thinking that this would not assist it, suggests that the Tribunal was giving genuine consideration to the applicant’s evidence, not the converse. 

37. Similarly, it was well open to the Tribunal to give weight to its observations of the demeanour and content of the applicant’s responses to its questions. It appears to me to have been open to the Tribunal to conclude that she had recently memorised facts about the Local Church, and was not giving evidence based on actual experience. In the absence of a transcript, I find it impossible to draw any conclusion that these parts of the Tribunal’s hearing might have displayed anything giving rise to a reasonable apprehension of a closed mind. The Tribunal’s ultimate reasoning about the evidence shows no more than it performing its statutory duty to arrive at a conclusion on factual matters.

38. On the Tribunal’s description of the applicant’s knowledge of the Lord’s Prayer it was, in my opinion, open to it to treat that part of her evidence as reflecting on her credibility. There is nothing in the material before me to suggest that it was unreasonable to have expected a member of the Local Church to know the Lord’s Prayer without hesitation, and in this case I would not draw conclusions of unreasonable questioning and findings, such as were found in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264.

1. I therefore am not persuaded by the arguments presented in support of this ground. 

2. The second ground in the amended application is: 

   2.The Tribunal erred by testing the Applicant’s Christian beliefs based on her knowledge of a certain type of religious dogma which the Tribunal apparently considered to be essential to Christianity.  In doing so the Tribunal failed to consider that it was the Applicant’s involvement in the group, not the extent of her knowledge of the catechism, which was the basis for her fear of persecution. 

3. In my opinion, it was open to the Tribunal to test the applicant’s claimed history by comparing it with her knowledge on elementary matters concerning Christianity or on matters which it would be reasonable to assume to be inherent in the applicant’s claimed history. I am not persuaded that the Tribunal’s reliance on this part of the applicant’s evidence reveals any jurisdictional error. There is no evidence that, when assessing her evidence, it failed to take into account relevant cultural and personal attributes of the applicant.

4. The Tribunal’s reliance on these matters did not show that it failed to appreciate that she was claiming to be a Shouter. Its reasons do not reveal that it did not understand that she claimed that she would be persecuted for an association with that group, rather than for her Christian knowledge.

5. I therefore am not persuaded by either of the grounds set out in the amended application. 

6. I note that I discussed with counsel for the Minister whether the Tribunal’s reasons reveal any failure to observe the requirements of s.91R(3) in the light of the recent decision in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105. In particular, I raised the question whether the Tribunal’s adverse reliance on the applicant’s delay in making her protection visa application after her arrival in Australia showed that it did not “disregard any conduct engaged in Australia” without making a finding about that conduct in terms of s.91R(3)(b). However, it appears to me that the Full Court accepted at [22] of SZJGV that an applicant’s conduct relating to the making of his or her visa and review applications did not come within the intended scope of s.91R(3). I am therefore not satisfied that any jurisdictional error occurred under that provision.

7. For the above reasons, I am not persuaded that the Tribunal’s decision was affected by jurisdictional error, and I must dismiss the application. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  25 August 2008