SZMDJ v Minister for Immigration - [2008] FMCA 1298

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1298

MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Roman Catholic – disbelieved by Tribunal – no breach of ss.424A or 424AA established – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA, 425

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270
SZMCB v Minister for Immigration [2008] FMCA 951

Applicant:

SZMDJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 902 of 2008

Judgment of:

Smith FM

Hearing date:

8 September 2008

Delivered at:

Sydney

Delivered on:

8 September 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 902 of 2008

SZMDJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia on a student visa with her son in May 2006. On 12 July 2007 she, but not her son, lodged an application for a protection visa assisted by a migration agent Priscilla Yu. A typed statement set out a history upon which she claimed to fear persecution if she returned to the People's Republic of China.
She said that in July 2004 a friend in her village introduced her to a doctor who was a “devote Catholic and a member of Roman Catholic Underground Church”. The doctor treated her father, and he “got recovery miraculously”. The applicant was deeply moved by this, and by the actions of the kind Catholics, and she attended gatherings of the Church. At Easter 2005, she was baptised. After this, she assisted her friend to organise a secret group gathering in her home village which grew to 20 members.
The applicant then came to Australia with her son. She actively participated in religious activities at Catholic churches in Flemington and Lidcombe. She also kept in touch with her friend and the doctor secretly, and provided them with “overseas religious promotion materials in order to support their underground religious activities”. She also said that she “organised a special Bible study group” at her home in Australia for young people who were currently studying in Australia. She said:
I invited experienced Catholics to spread gospel to those young people; and I also organised them to send religious promotions material back to their families or friends in China.
She said that she gave the doctor a large sum of money from selling some property in China, so that he could build a church in a remote village. However, the secret gathering group in her village was suddenly discovered by the Public Security Bureau in May 2007, and her friend was arrested with other Catholics. She contacted the doctor, and discussed how to save the friend, and also told him that she would give further financial support. In the middle of June 2007, she lost contact with the doctor, and was informed that he had been arrested and that the secret church which he had set up had been discovered and destroyed. Her own home had been searched, and her husband was interrogated and warned that the applicant was suspected of having actively participated in illegal religious activities.
A delegate interviewed the applicant, and on 4 October 2007 he refused the visa application. The delegate thought the applicant had been vague and unconvincing regarding her religious activities in China, and noted that no documentary evidence had been submitted in support of her activities in China. The delegate noted that the applicant had not included her son in her visa application, and thought that this suggested that she might not have a genuine and significant fear for her family's safety. The delegate found that she did not face a real chance of harm if she returned to China.
The applicant appealed, assisted by her migration agent. She attended a hearing of the Tribunal which was held on 12 February 2008. She showed the Tribunal photographs showing her in front of the St Mary's Cathedral with other Chinese people and a priest, apparently on one occasion. She presented no other corroborative evidence of her claims.
There is no transcript of the hearing in evidence before me, although the applicant has been given an opportunity to present one. I therefore must rely on the Tribunal's summary, which is quite extensive. According to the Tribunal, it closely examined her claimed religious background, and her claims to have been involved in setting up an underground church and to have supported it from Australia. At the end of the hearing, the Tribunal confirmed some of the doubts it had expressed in the course of the hearing, and put to the applicant matters upon which it invited her comment. I shall extract part of this discussion further below.
The Tribunal handed down a decision on 18 March 2008, affirming the delegate's decision. In its findings and reasons, the Tribunal accurately identified the applicant's actions in China and Australia which she claimed caused her to fear return to China.
The Tribunal said that it first considered “whether the applicant is in fact a Catholic Christian as she claims”. The Tribunal noted that she claimed to have attended, very regularly, Catholic churches at Lidcombe and Flemington during the year that she had lived in Australia. However, it did not accept that she was either a Catholic or a Christian, and it identified a series of reasons supporting that adverse conclusion.
These included her significant lack of awareness of the details of a Catholic mass, which led the Tribunal to conclude that she had no personal experience of a Catholic mass, nor of taking communion or confession. She also showed other defects which, reasonably in my opinion, the Tribunal regarded as reflecting on the truth of her claimed Catholic commitment. The Tribunal therefore did not accept that, either in China or Australia, she had attended Catholic Church services.
Addressing her claimed involvement in setting up an underground Catholic group in her village and then supporting it from Australia, the Tribunal pointed to defects in her evidence about this, and to its lack of plausibility in view of her claimed illiteracy and scant knowledge of Catholicism and other reasons.
The Tribunal therefore found that she was not a credible witness in relation to any part of her claims and concluded that she had fabricated her story for the purpose of claiming refugee status. It rejected each particular of her claimed history in China and Australia. It therefore did not accept that she had been, or would be now, of any interest to the Chinese authorities because of her religious or political beliefs or for any Convention reason. It could find no circumstance which might give rise to a real chance of prospective harm, and concluded that she did not face a real chance of persecution for any reason.
The applicant now asks the Court to set aside the Tribunal's decision and to send the matter back to 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.
The applicant has raised grounds in an original application, and has also presented a submission to the Court which I shall address below. Her application has two grounds. The first claims that the Tribunal failed to consider her claims properly, and argues that the Tribunal failed to consider “the following important evidences”:
Firstly, I was really under huge pressure; secondly, I am from the countryside of Fujian where I had to speak particular dialect not only in my daily but also in my religious practices ; and thirdly, the interpreter at the Tribunal’s hearing, was unable to interpret some of the religious questions accurately and clearly.
In relation to the quality of the interpreting services at the Tribunal's hearing, there is no evidence before me that there was any defect at all. The contention in the application is given no particulars, and there is no suggestion in any of the Tribunal's description of the hearing, nor in its reasoning, that its decision might have been materially affected by any error of translation. I therefore reject that contention.
As to the applicant's health at the hearing and her illiteracy, these are matters which, on the evidence before me, were considered by the Tribunal. At the end of the hearing, after the Tribunal had spent what appears to be a significant period putting its various particular concerns to her, the Tribunal records the following:
The Tribunal indicated she said she gave 80,000rmb to Dr L for a Church. The Tribunal discussed with her, her answers at the Department’s interview regarding this. The Tribunal indicated that the fact that she and her husband had borrowed money to educate her son here, suggested she would not have sold a property at some time after that and given all the proceeds to a Church.
She stated she had a cash flow problem at that time, with 2-3 petrol stations, so had no cash at that time.
The Tribunal indicated at the Department’s interview she said at first that she had contacted the Church about the arrests and events in China, but when asked what she had done, she said she had not told them about the arrests. That suggested she had no concerns about matters in China.
She stated she has real concerns- that is why she has headaches. She has a headache now and has nightmares. The Tribunal discussed her headaches- she said she had medication this morning- that was why she could not remember the Pope. She stated the knowledge of her religion, because of her headache- she could not remember. After questions she indicated she took 2 panadol that morning. The Tribunal indicated there was no evidence before the Tribunal that 2 panadol would have affected her ability to understand questions. She stated it can help with a headache.
The Tribunal discussed her evidence that she had 3 petrol stations in China. She said she still owned them. She then stated she only has one now- 2 were sold. At the time she came to Australia, her husband had a job in (town N) as a vice manager in charge of job allocations and telling workers what to do. The Tribunal indicated in her statement given to the Department to get her visitor visa, she said that from 2003 her husband was a manager in an engineering Department and she sold vegetables and fruit in a market- there was no mention of owning petrol stations or of her description of her husband’s job.
She stated he worked in (town N) as a vice manager but they did not mention the petrol stations. The Tribunal asked why. She stated this was because the petrol stations had too many shares.
The Tribunal indicated when it listened to her evidence it formed the view her credibility was in doubt. The Tribunal doubted the events she described had in fact taken place, and doubted she had ever come to the attention of the Chinese authorities. The Tribunal doubted she was of any interest to the authorities if she returns to China. If the Tribunal came to those findings it would refuse her application.
The Tribunal asked again whether she wished to give comments, further time to respond, including in writing. She stated she had told the truth- she could not lie. She needed the Tribunal’s compassion.
In its ‘findings and reasons’, the Tribunal specifically addressed the applicant's claim to have suffered headaches at the hearing. It said:
During the hearing the applicant indicated that: she had real concerns about the people in China after the events she described and that was why she had headaches; she had a headache at the hearing; and she has nightmares. The Tribunal discussed her headaches: she explained she had medication the morning of the hearing and that was why she could not remember the Pope. She also alluded to her headache and medication leading to other lapses of memory. However, after further questions she indicated she had taken only 2 panadol the morning of the hearing. The Tribunal indicated there was no evidence before the Tribunal that 2 panadol would have affected her ability to understand questions. She merely stated it can help with a headache. There is no other evidence before the Tribunal that the applicant has a medical condition or that this condition would hinder her in providing evidence. The Tribunal does not accept that the problems with the applicant’s evidence were attributable to a headache or medical condition.
The applicant, as I have indicated, has presented no evidence to the Court that the Tribunal inaccurately or inadequately narrated this part of the hearing. I am not satisfied that it gave inadequate consideration to the matter. There is no evidence before me which raises any real doubt whether the applicant suffered from an inability to enjoy the opportunity required by s.425, such as was found in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 and subsequent cases.
In other parts of its reasoning, the Tribunal was plainly aware of the applicant's claim that she was “largely illiterate” and had lived only in a village. It took that information into account when considering the plausibility of some of her claims. I do not consider that there was any matter concerning the applicant's background which was not taken into account by the Tribunal.
I therefore do not accept any of the arguments raised in ground one of the application.
The second ground of the application contends that the Tribunal failed to comply with obligations under s.424AA. As counsel for the Minister points out, a recent decision of Cowdroy J in SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 exercising the appellate jurisdiction of the Federal Court has held, in paragraphs [23]-[27], in effect, that s.424AA is not a self-standing procedural provision, such that any non-compliance gives rise to jurisdictional error vitiating a decision of the Tribunal. His Honour appears to have concluded from legislative history that the intended consequence of any non-compliance with s.424AA is only that s.424A(2A) will not apply to excuse a procedure under s.424A(1), whether the non-compliance arises from a discretionary decision not to follow the s.424AA procedure or from defects occurring in the procedure when purportedly followed. On this construction, the s.424AA procedure operates only as an embellishment or qualification to obligations under s.424A(1). Counsel for the Minister noted that this construction has been applied in several cases in this Court, and I consider that I should do likewise.
The construction has the consequence that, even if there were any failure to follow procedures described in 424AA, it would also be necessary to establish that the Tribunal’s decision relied upon some piece of information which would have been required to be put to an applicant under s.424A(1) for written comment. It also means that the exclusions of s.424A(3) therefore also apply as exclusions to any jurisdictional requirement to observe s.424AA as an alternative to the procedure under s.424A(1).
In the present case, I am unable to identify any information coming within s.424A(1) which was required to be put to the applicant in writing under that section or orally under s.424AA.
The Tribunal's reasoning appears to rely upon an assessment of evidence given by the applicant at the hearing, with some comparison to how she had previously presented her case to the Department of Immigration, so as to identify inconsistency. On current authorities, this does not give rise to any obligations under s.424A(1). Moreover, in the absence of a transcript of the Tribunal’s hearing, I could not find that the Tribunal did not, at the end of its hearing in the manner which it summarised and which I have set out above, adequately perform the task described in s.424AA(a) and (b). If so, even if s.424A(1) might apply, the need to follow its procedure would be excluded by s.424A(2A).
I raised with counsel for the Minister the Tribunal's reference to evidence which the applicant had given during her interview by the delegate concerning the role of hymns in her religious practices in China, and to the Tribunal's opinion that her answers were “vague and unconfident”. In this context, I referred to my recent decision in SZMCB v Minister for Immigration [2008] FMCA 951, where I was satisfied that a Tribunal had drawn from its own impressions of an applicant's demeanour in a taped interview with the delegate, without putting all the relevant particulars or explanation to the applicant for written comment. However, in the present case, the Tribunal appears only to have drawn from the contents of responses given by the applicant to the delegate, which were then put to the applicant by the Tribunal. I am also not satisfied that this part of the interview with the delegate was not fully and sufficiently canvassed by the Tribunal with the applicant in the course of a 424AA procedure.
The applicant's application itself raises no argument that there was a breach of the procedures under 424A. Its reference to the Tribunal's reliance upon the applicant's evidence at the hearing about her petrol stations does not identify any such breach, since the Tribunal appears to have fully discussed this with her at the hearing, as indicated in the passage I have extracted above.
For all the above reasons I am not satisfied that any jurisdictional error affects this decision by reason of any non-observance with s.424AA or s.424A.
The applicant's written “submission” to the Court filed on 22 July 2008 has four paragraphs which in effect present, in an unverified fashion, evidence to the Court supporting the applicant's refugee claims. Paragraphs 1 and 2 attach what purports to be translations of Chinese corroborative documents. However, the translator's stamp on both documents, and the contents of one of the translations, strongly indicates that this material is of recent derivation. There is no evidence before me to support the applicant's statement today that this material, or any other similar material, was given to the Tribunal before it made its decision and was overlooked by it. The tender of fresh material to the Court cannot itself provide grounds for remitting the matter to the Tribunal. The information in paragraphs 3 and 4 of the submission appears to be of this character also.
The applicant's other oral submissions today maintained that the Tribunal had arrived at the wrong decision, when not believing her claim to have formed a Catholic group in China and to have been supporting it from Australia and therefore to be at risk of persecution. However, as I have explained to the applicant, it is not the task of the Court itself to form a view about her credibility or the credibility of her claims.
Taking into account all that the applicant has put before me, I am not persuaded that the Tribunal's decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 1 October 2008