SZMJV v Minister for Immigration

[2008] FMCA 1213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1213

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – Tribunal accepted that the applicant attended church in Australia – no express finding by the Tribunal pursuant to s.91R(3) of the Migration Act 1958 (Cth) – whether a finding can be implied considered – whether Tribunal failed to consider a sur place claim based on the applicant’s church attendance in Australia considered.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.65, 91R(3), 414, 424A

SZHAY v Minister for Immigration (2006) 199 FLR 148
SZJGV v Minister for Immigration [2008] FCAFC 105
SZLQY v Minister for Immigration [2008] FMCA 692

Applicant: SZMJV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1517 of 2008

Judgment of: Driver FM

Hearing date: 27 August 2008

Delivered at: Sydney

Delivered on: 27 August 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1517 of 2008

SZMJV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 19 May 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The background facts relating to the applicant's protection visa claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 26 August 2008.  I adopt as background for the purposes of this judgment with minor amendments paragraphs 2.1 to 2.9 of those written submissions:

   The applicant is a citizen of Fujian Province, the People’s Republic of China.  He arrived in Australia on 3 September 2007 and lodged an application for a protection visa on 26 September 2007.

   The applicant claimed that he held fears for reason of his participation in an underground church in Fujian Province, China.  He claimed that in 1992 he was baptised in a church that formed part of the Three Self Church.  As such it was monitored and controlled by the authorities.  The applicant claimed that in 2000 he became disenchanted with this church and he commenced practising his faith in an underground church.  He claimed that in January 2007 he was arrested and detained for one month for holding an underground church gathering at his home.  His wife later paid for his release.  He was fearful from that time and arranged for a visa to come to Australia. 

   On 23 October 2007 a delegate of the Minister refused to grant the applicant a protection visa.  The delegate was not satisfied that the applicant had engaged in activities that would make him the subject of adverse interest to the authorities.  The delegate noted that there was no evidence that he had been attending a Church since arriving in Australia.

   On 15 November 2007 the applicant applied for review of that decision. 

   On 4 December 2007 the applicant submitted evidence that corroborated his claim to have engaged in activities as part of a church in Sydney. 

   On 7 February 2008 the Tribunal requested the applicant’s visitor visa file from the Department of Immigration. 

   On 7 February 2008 and 26 March 2008 the applicant attended a hearing before the Tribunal.  The Tribunal questioned the applicant as to his beliefs, the activities of the churches to which he claimed to belong and the circumstances of his claimed past persecution.  At the second hearing date a witness gave evidence in support of the applicant’s claims to have engaged in activities as part of a church in Sydney.

   By letter dated 15 April 2008 the Tribunal invited the applicant to comment on information particularised in the invitation that was relevant to the credibility of his claims and to the issue as to whether he had engaged in conduct in Australia in order to strengthen his refugee claims.  The applicant responded on 15 April 2008.

   On 19 May 2008 the Tribunal handed down its decision to affirm the decision under review.  The Tribunal accepted that the applicant was a Christian and that he had worshipped as part of the approved Christian Church in China.  It accepted that he had participated in activities of a church in Sydney.  It did not accept that he left the approved Christian Church in 2000 and attended underground church gatherings as claimed.  His evidence in that respect was inconsistent and unconvincing and his evidence as to the activities of the underground church was implausible.  It did not accept that he had been arrested and detained in January 2007 as claimed.  Accordingly, as it did not accept that the applicant had suffered past persecution for the reasons claimed, it was not satisfied that he would suffer Convention related persecution should he return to China.

2. These proceedings began with a show cause application filed on 13 June 2008.  The applicant now relies upon an amended application filed on 21 August 2008.  The amended application was prepared by the applicant's panel advisor, Mr Sean T Flood.  The amended application contains two particularised grounds:

   (1) The Second Respondent committed jurisdictional error of law in that it failed to comply with the requirements of s.91R(3) of the Migration Act 1958.

   PARTICULARS

   ·The Applicant claimed to be a person to whom Australia owed protection obligations on the basis of his religion.

   ·His claim on the basis of his religion was that he had a well-founded fear of persecution in his home country because of his status as a Christian who worshipped at an unregistered “house church”.

   ·On 4 December 2007 and 26 April 2008, the Applicant, through his then representative, provided the Second Respondent with information that raised the Applicant’s claim that he was a practising Christian in Australia.

   ·The Second Respondent found that the Applicant did worship as a Christian in Australia.  Further the Second Respondent found that the Applicant introduced other people into the Church.

   ·Contrary to s.91R(3) of the Migration Act 1958 the Second Respondent failed to decide whether or not it was obliged to disregard the above conduct.

   (2)The Second Respondent committed jurisdictional error of law in that it failed to exercise the jurisdiction vested in it and the duty placed upon it by ss.65 and 414(1) of the Migration Act 1958 as it failed to properly review the applicant’s claims to be a refugee.

   PARTICULARS

   ·The Applicant claimed to be a person to whom Australia owed protection obligations on the basis of his religion.

   ·His claim on the basis of his religion was that he had a well-founded fear of persecution in his home country because of his status as a Christian who worshipped at an unregistered “house church”.

   ·On 4 December 2007 and 26 April 2008, the Applicant, through his then representative, provided the Second Respondent with information that raised the Applicant’s claim that he was a practising Christian in Australia.

   ·The Second Respondent found that the Applicant did worship as a Christian in Australia.  Further the Second Respondent found that the Applicant introduced other people into the Church.

   ·The Second Respondent failed to consider if the Applicant’s worship at an unregistered or “house church” in Australia would mean there was a real chance of his being persecuted if he returned to China.

   ·By failing to give consideration to this claim, the Second Respondent failed to properly exercise its jurisdiction.

3. Mr Flood also prepared an outline of submissions and list of authorities that was filed on 21 August 2008.   Relevantly, those submissions are that the Tribunal erred by failing to decide whether or not it was obliged to disregard the applicant's conduct in Australia of attending Christian worship.  The applicant relies upon the decision of the Full Federal Court in SZJGV v Minister for Immigration [2008] FCAFC 105 and the decision in this Court in SZLQY v Minister for Immigration [2008] FMCA 692 at [51]. The submissions also assert a failure to deal with an element or integer of the applicant's claims based upon his conduct in Australia.

4. I have before me as evidence the court book filed on 11 July 2008.

5. There was no evidence before the delegate that the applicant had attended church services in Australia (see the court book, page 45).  However, the applicant provided the Tribunal with both oral and documentary evidence of his attendance at church in Australia.  He was questioned at length about his claims in relation to both China and Australia at the hearing conducted on 7 February 2008 and the resumed hearing on 26 March 2008.

6. It is apparent that the Tribunal had some doubts about the veracity of the applicant's claims as to his conduct, both in China and in Australia. After the hearing, the Tribunal wrote to the applicant, purportedly pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). Relevantly, that letter stated (court book, page 122):

   On 4 December 2007 you provided a statement written by James Liew, who describes himself as a Pastor of Hillsong Church.  This statement was dated and signed by Pastor Liew on 25 November 2007 and it states that you commenced attending worship “since the beginning of the month”.  Pastor Liew states that he was informed that you attended a home group meeting every Saturday from October 2007. 

   On the basis of the evidence before it the Tribunal may form the view that you have attended a Christian congregation in Australia for the sole purpose of strengthening your claim to be a refugee within the meaning of the Refugees Convention.  If the Tribunal forms this view then such conduct in Australia must be disregarded by the Tribunal and in those circumstances the Tribunal may come to a finding that you were not practising the Christian faith as a member of the underground church in China as you have claimed.

7. In its decision (court book, pages 122-123) the Tribunal noted that the applicant provided a response to the invitation to comment on 26 April 2008 which included a statement by Hatty Gu who said that she met the applicant at one of the Bible study meetings in September or October 2007.  She said in the statement that she had also seen the applicant at the church and that he served faithfully and brought friends along too.  Ms Gu had suggested that the applicant be trained as a leader.  In its Findings and Reasons, the Tribunal accepted that the applicant had been a practising Christian in China but did not accept that he had been a part of an unregistered or house church in China (court book, pages 125-127).

8. In relation to the applicant's conduct in Australia, the Tribunal stated at court book, pages 127-128:

   The applicant did not produce any actual evidence that he attended any Christian church until 4 December 2007 almost three months after he made the application for the Protection visa.  The Tribunal heard the evidence of the applicant's witness who expressed the view that the applicant demonstrated a knowledge of Christian beliefs from the time of his earliest association with the Hillsong Church in St Leonards.  It has also considered the applicant's oral evidence and based on that evidence the Tribunal accepts that the applicant has some knowledge of Christian beliefs.  It is not extensive but it is consistent with his exposure to the Christian faith as part of the registered church in China and his attendance at a Christian congregation in Australia.  The Tribunal finds that the applicant's inability to discuss the content of a particular extract which he claims to have read from the bible on the morning of the hearing suggests that he had not read the passage as he had claimed.  His inability to enunciate a number of essential beliefs of his Christian church supports a finding that his knowledge of the faith he professes to follow is not deep.  Finally, the superficial explanation of a parable of the sown seeds suggests that he did not know the significance of the allegory.  His explanation of the story did not relate to the content or significance. 

   The Tribunal accepts that the applicant attends church services at the Hillsong church and it accepts that he attends bible study groups.  The Tribunal accepts that the applicant has taken other friends along to church activities as his witness has claimed.  The Tribunal has also considered the evidence from Hatty Gu who states that the applicant is considered a suitable candidate for leadership training in the Hillsong Church. 

   The Tribunal accepts that the applicant worships in Australia as part of the Hillsong church, having been introduced to that church by a friend from Fujian who no long attends the church.  It has already found that in China the applicant worshipped as part of the registered church, having been brought to that church through his wife in 1992 and after their marriage.  The Tribunal has not accepted the applicant's claim that he joined the underground church in 2000 and worshipped from 2000 until 2007 as part of the unregistered church.  The Tribunal is satisfied that if the applicant returns to China he will not seek to worship as part of the underground or unregistered church.  The Tribunal therefore finds remote the chance that the applicant will face persecution for reason of his religion if he returns to China.

9. I accept on the basis of the Full Federal Court decision in SZGJV that once s.91R(3) of the Migration Act is engaged, decision makers must consider whether they are satisfied that the relevant conduct in Australia was engaged in for a purpose other than to enhance the applicant's protection visa claims and, if not so satisfied, are required to disregard that conduct. The Full Court in SZJGV at [13] quoted a passage from my earlier decision in SZHAY v Minister for Immigration (2006) 199 FLR 148 in which I stated that decision makers may indicate their satisfaction as to the motivation for conduct in Australia expressly or by necessary implication from their reasons. I said it was better that they do so expressly.

10. In this case, the Tribunal has not expressed any satisfaction one way or the other in its reasons.  However, on a fair reading of the Tribunal’s reasons, I accept counsel for the Minister's submission that satisfaction that there were reasons other than a desire to enhance the applicant's protection visa claims for his attendance at church in Australia may be implied.  This is based on the Tribunal's finding that the applicant had been a practising Christian in China.  That prior expression of faith supported a logical conclusion that the applicant attended church in Australia as a continuing expression of faith, however limited, and not simply to enhance his protection visa claims.  The statement by Ms Gu also supported that conclusion.

11. I find, therefore, that, although it would have been preferable for the Tribunal to have made an express finding of satisfaction as to the applicant's motivation for his conduct in Australia, satisfaction can be implied from the Tribunal's reasons to support a conclusion that the Tribunal was not required to disregard the applicant's conduct in Australia.

12. The applicant's other claim is that the Tribunal erred by not considering a sur place claim based upon his conduct in Australia.  I reject that contention.  The Tribunal appears to have accepted country information that practising Christians per se were not at risk of harm in China and certainly not in the applicant's home province of Fujian (court book, pages 123-125).  The Tribunal rejected the applicant's claim that he was at risk as a member of an unregistered or house church in Australia.  Contrary to the amended application, there was nothing before the Tribunal to suggest that the applicant attended an unregistered or house church in Australia.  Indeed, that concept has no real meaning in the context of Australia.

13. The Tribunal accepted that the applicant worshipped at the Hillsong Church but there was nothing to suggest that that church satisfied the description of an unregistered or house church in the Chinese context.  There was, therefore, nothing before the Tribunal that supported a need to consider a sur place claim based upon the applicant's conduct in Australia.

14. To the extent that the grounds in the applicant's original show cause application might be considered to have some continuing relevance, I agree with the Minister's submissions in relation to those grounds in paragraphs 3.1 to 3.13 of the Minister's written submissions.

15. I conclude that the decision of the Tribunal is free from jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.  I will so order.

16. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $5,300 on a party and party basis.  The applicant did not wish to be heard on costs.  I see no reason to depart from the Court scale in this matter.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  28 August 2008