SZMCZ v Minister for Immigration

[2008] FMCA 1187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1187

MIGRATION – RRT decision – Chinese applicant fearing persecution for involvement in Local Church – disbelieved by Tribunal – no impermissible regard to conduct in Australia – no jurisdictional error found – application dismissed.

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

SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105

Applicant: SZMCZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 824 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 T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 824 of 2008

SZMCZ

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 September 2007 to visit a son who was studying here.  On 19 October 2007, she applied for a protection visa against return to the People’s Republic of China.  A brief statement attached to the application claimed that the applicant was “once a leading member of a Christian church” in the applicant’s town in Fuqing City, which was “one of the underground churches established in China”.  The statement claimed that this occurred after she was introduced to the bible in 2000 by a workmate.  It said: “very soon I became very active in the church activities”. 

2. The applicant claimed to have assisted the workmate in January 2001 to set up a bible study group and to distribute religious promotion materials in many areas in Fujian province. The applicant often invited experienced priests to preach a sermon at her bible study group. The statement concluded:

   One day in January this year while [the workmate] and I were organizing bible study in our house church, a lot of police suddenly broke into.  We were denounced to have illegal religious gathering.  As a result, both [the workmate] and I were taken to the local Public Security Bureau.  We were interrogated although the authorities could not find any evidence, we were released. 

   After I was released, to escape from further persecution by the authority, I successfully arrived in Australia.  As a key member of the underground church, I will be subjected to persecution on my return to my home country.  I wish to apply for a protection visa in Australia. 

3. A delegate refused the application on 7 December 2007.  The delegate noted that the applicant had not attended an interview to which she had been invited, and was not satisfied that she was a genuine Christian nor that she had substantiated her claims. 

4. On appeal, the applicant attended a hearing of the Tribunal on 14 February 2008. Prior to the hearing she responded to an invitation to comment on information which was put to her in writing about several matters which might appear adverse to her credibility. These and other matters were also put to the applicant in the course of the hearing.

5. The Court only has the Tribunal’s description of the hearing, since the applicant has not tendered a transcript although given the opportunity to do so. According to the Tribunal, it asked her many questions about her claimed history in China, and it also questioned her about the church to which she claimed at the hearing to have belonged, being the “the Local Church”.

6. The Tribunal discussed with the applicant photographs which she presented, and two letters on letterhead of “The Local Church in Sydney” which confirmed that she had been “meeting regularly with the church” in Australia since September 2007. A person from that church also attended the hearing, and was questioned by the Tribunal. He indicated that he had no knowledge about the applicant’s history in China.

7. At the end of the hearing, the Tribunal itemised pieces of information which it told her might be a reason or a part of the reason for affirming the decision under review. The Tribunal explained the possible relevance of the information, and informed the applicant about her right to request an adjournment to respond. The applicant said that she wanted to respond immediately, and did so. From the Tribunal’s description of this part of the hearing, it appears to me that it carefully complied with the procedures indicated in s.424AA of the Migration Act 1958 (Cth).

8. The Tribunal handed down a decision on 11 March 2008, affirming the delegate’s decision. Under the heading “Findings and Reasons”, the Tribunal explained generally why it had not found the applicant to be a person of credibility, even after taking into account possible educational and cultural barriers. It said:

   The Tribunal found the applicant not to be a person of credibility.  She was often evasive and non‑responsive to the Tribunal’s questions.  She insisted on offering some information concerning the events in China irrespective of the Tribunal’s questions and on several occasions the Tribunal had to remind the applicant to respond to the question.  The Tribunal cannot justify the applicant’s evasiveness by her claimed lack of education because she was able to speak comprehensively and coherently about some matters but not others.  The applicant appeared selective in her ability to respond to the issues raised by the Tribunal.  The Tribunal has also satisfied itself that the applicant was provided with a good level of interpreting which did not prevent her from giving evidence. 

   The Tribunal found that there were significant inconsistencies between the applicant’s written claims and her oral evidence, as noted below.  The applicant explained this by saying that she received assistance with the application however the Tribunal does not accept this as a justification for such inconstancies because the applicant confirmed at the commencement of the hearing that the information was read back to her and that it was correct.  The Tribunal also noted that the written application was very generalised and lacked many of the details that emerged in oral evidence.  The applicant stated that due to her lack of education, she felt that she could present her case better orally.  Again, the Tribunal does not accept that explanation because the applicant had clearly received assistance with her application and she also had ample opportunity to present evidence throughout the lengthy period in which her application was being considered. 

9. The Tribunal then itemised “the specific inconsistencies and omissions that concern the Tribunal”. Some of these might appear to be relatively minor, but all of them, in my opinion, provided relevant and rational reasons for the Tribunal’s conclusion about the applicant’s credibility.

10. The Tribunal then applied its finding about credibility, by finding that all of the elements in the applicant’s claimed history of persecution in China were not true. The Tribunal said:

    The Tribunal rejects the claim that the applicant departed China in order to avoid persecution or that it was due to a miracle that she was able to depart the country.  The Tribunal has made these findings while acknowledging that the applicant started attending the Local Church in Sydney shortly after her arrival in Australia.  The Tribunal finds that there is no real chance that the applicant will face persecution if she were to return to China now or in the reasonably foreseeable future due to her claimed religious involvement prior to her arrival in Australia. 

11. The Tribunal further explained how it had dealt with the applicant’s conduct in Australia in the paragraph immediately following the above passage. It said:

    The Tribunal will now consider the applicant’s conduct in Australia.  The applicant has presented two statements from the Local Church in Sydney as well as some photographic evidence and the Tribunal took evidence from [an Elder] of the Local Church.  On the basis of this evidence, as well as the applicant’s oral evidence, the Tribunal accepts that the applicant has been attending the Local Church in Sydney since about September 2007.  However, given the Tribunal’s findings about the applicant’s lack of religious involvement in China, the Tribunal is of the view that any religious knowledge the applicant displayed in oral evidence was acquired as a result of her attendance in Australia.  In light of the Tribunal’s findings about the applicant’s religious involvement in China and the applicant’s overall credibility, as well as the Tribunal’s concerns about the applicant’s motivation in entering Australia, noted below, the Tribunal is not satisfied that the applicant has engaged in religious activities in Australia otherwise than for the purpose of strengthening her claims to be a refugee.  The Tribunal disregards such conduct in accordance with s 91R(3). 

12. The Tribunal’s reference to its concerns about the applicant’s motivation in entering Australia were further explained in the following paragraph:

    The applicant spoke about being abandoned by her husband, her elderly parents and the fact that her son resides in Australia.  She stated that she had no life in China.  The Tribunal acknowledges the applicant’s desire to remain in Australia with her son and is of the view that this was part of the motivation for the applicant’s decision to travel to Australia.  However, family reunion is not the aim of the Refugee Convention. 

13. The Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

14. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration by the Tribunal. 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 should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.

15. The applicant relies on grounds set out in her application. She has not filed an amended application, nor any evidence in support of her factual contentions. In particular, she has not tendered a transcript of the hearing held by the Tribunal although given that opportunity.

16. The first ground is that “there is apprehended bias in the Tribunal’s decision”. It does not identify any grounds for apprehended bias occurring in the conduct of the hearing. On the Tribunal’s very detailed description of the hearing, such an apprehension could not, in my opinion, arise. Rather, the impression from reading the decision is of a Tribunal being conscientious to assess whether the applicant’s claims were genuine or not. I can find no evidence of any contrary approach to the Tribunal’s statutory duty in how it has written its reasons.

17. On the material before me, it was open to the Tribunal to find that the manner in which the applicant answered its questions reflected on her credibility. I do not accept the contention in the application, which was also made orally to me today by the applicant, that the Tribunal failed to take into account her educational and cultural background when assessing credibility. The opening paragraphs which I have quoted from the Tribunal’s reasons show otherwise. In my opinion, the arguments presented in the application do not rise higher than criticisms of the merits of the Tribunal’s findings on credit. They fall far short of establishing any case of apprehended bias.

18. The second ground in the application is that “the Tribunal failed to consider my evidences impartially and properly”. The argument which is presented criticises the Tribunal because it “gave nothing to support its finding” which disregarded her evidence of attendances at the Local Church in Australia. However, that was an approach to the evidence which the Tribunal was bound to take by the Migration Act, in the absence of it being able to make a finding in terms of s.91R(3)(b).

19. A third possible ground of judicial review was obliquely touched upon by the applicant when she invited the Court to consider the recent judgment in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105. She did not make any submission explaining how that case was relevant to the present decision.

20. However, counsel for the Minister had anticipated this issue. He referred me to the Tribunal’s statement which I have quoted above, where it referred to “while acknowledging that the applicant started attending the Local Church in Sydney shortly after her arrival in Australia”. However, I accept his submission that this reference to her conduct in Australia was further explained in the Tribunal’s following paragraph which I have also quoted above, in which it expressly applied the injunction in s.91R(3).

21. Reading these two paragraphs together, in my opinion the Tribunal should be understood as “acknowledging” her conduct, in the sense of making a finding that the applicant had started attending the Local Church in Australia, but then as indicating that it was bound by law to disregard that conduct. By reasoning that way, I do not consider that the Tribunal made any error such as was found in any of the three cases covered in the judgment published as SZJGV. Rather, it reflects a duty to first make “primary findings of fact”, which is supported in [22] of SZJGV.

22. For the above reasons, I am unable to identify any jurisdictional error affecting this Tribunal’s decision. I must, therefore, dismiss the application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  28 August 2008