SZMOG v Minister for Immigration
[2008] FMCA 1566
•3 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMOG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1566 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Court cannot review Tribunal’s findings of fact – procedural fairness not denied to applicant. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZMOG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1931 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 November 2008 |
| Date of Last Submission: | 3 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr P. Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1931 of 2008
| SZMOG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a Protestant Christian. She arrived in Australia on 16 December 2007. She claims to fear persecution in China on the grounds of her religion.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
19 March 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 88 – 91). Relevantly, they are in summary:
a)the applicant claimed she joined a house church in February 2005 and went to church intermittently in Shenyang. In December 2006 a friend told her that she held Christian gatherings at her home and following that time she attended meetings there;
b)she belonged to the Protestant denomination and had attended services in the “official” Shenyang church on a number of occasions. Her sister was studying for the ministry and had not had difficulties with the authorities because she studied in a State-recognised establishment;
c)she was treated differently from her sister because although she was not regarded as a prominent Christian, house churches are not protected by the law and her pastor is a prominent figure whom many people follow;
d)in June 2007 during a gathering at the pastor’s house, the police arrived and she and her companions were taken to the police station. She was released two days later as her elder sister paid RMB10,000 to the police but four other Christians were sentenced to labour camps. She later claimed that the others were regarded by the police as “mature” Christians whereas she was only a newcomer. She then said that the police took RMB10,000 from her mother;
e)after this she claimed she was harassed by the police at her shop and at her home she was questioned frequently about believing in God. On one occasion two men began fighting in her shop and destroyed clothing and equipment. Although she called the police they came three hours later and the men escaped. The implication of this evidence was that the fight was in some way engineered by the police. She later added that this incident occurred at the same time as the visits to her shop by street patrol;
f)the police often came to investigate the fighting and so the applicant closed her shop in October 2007. She went to her friend’s home in Herbei province so that her husband and son would avoid trouble;
g)she divorced in November 2007 as, after she began believing in God, her husband did not support her and after the divorce he refused to give her their nine year old son. She also says that problems at home contributed to her divorce;
h)in China she had no religious freedom and if she spread the gospel she would go to gaol; and
i)the applicant left China to visit New Zealand where she stayed for four days before coming to Australia. However, she did not apply for refugee status there as she claimed her tour guide told her New Zealand was not so good for people who believed in God.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal noted that the applicant claimed she had not attempted to gain refugee status in New Zealand because her tour guide stated that New Zealand was not helpful to religion. The Tribunal did not accept this explanation as credible. It concluded that her visit to New Zealand was purely a means to the end of migrating to Australia;
b)the Tribunal was not convinced that the applicant was targeted by the police on the grounds of her religion, noting that:
i)although she claimed to be a Christian in her visa application, she later said that she was not baptized;
ii)
the Tribunal found that her claim that she spent only
two days in detention whereas other members of her small congregation were sent to labour camps for four months lacked credibility; and
iii)her claim that the police would discriminate in her favour in allowing her to leave detention after two days because she was not a “high profile Christian” was not credible;
c)the Tribunal was not satisfied that the police paid hostile visits to the applicant’s shop following her detention as she claimed. It was also not convinced that the fight between two customers was related to police persecution because of her claimed religion, noting that the applicant was unable to provide any satisfactory evidence of a connection between the two men and the police;
d)the Tribunal accepted that the applicant’s family had a close relationship with the official Protestant church in Shengyang and that she has had association with Christians in China as was demonstrated through photographs. However, it was not convinced that this association was principally via unofficial house churches as claimed; and
e)the Tribunal considered that there was no credible case for it to conclude that the applicant was persecuted for her religion, given that she confirmed that she had not been baptized. It also noted that she had had no difficulty in obtaining a new passport and leaving China with a tour group and that she agreed that her decision to leave China was influenced by the commercial failure of her business, her divorce and the loss of her son to his father.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)RRT did not consider my evidence fairly. The failed to assess my risk to return China.
(2) Procedural Fairness has been denied by RRT.
Today in oral submissions the applicant said that what she had said to the Tribunal was true.
Failure to consider evidence fairly
The first element of the first ground of review is no more than an invitation to review the Tribunal’s fact finding. The Court cannot do that. Its role is limited to determining whether the Tribunal’s decision is affected by the particular sort of legal error known as jurisdictional error.
Consequently, this aspect of this ground does not raise an issue relevant for consideration in these proceedings.
Failure to assess the risk of return to China
Contrary to the second element of the first allegation in the application, assessing the risk to the applicant upon a return to China was exactly what the Tribunal did as part of the process by which it concluded it was not satisfied that she had a well-founded fear of persecution for a Convention reason. The Tribunal considered the evidence which was before it and reached conclusions based on that evidence, conclusions which were open to it. It considered the claims made by the applicant in respect of that evidence but in large part disbelieved them.
In brief, an examination of the Tribunal’s decision record discloses that it did assess the applicant’s claims to have a well-founded fear of persecution for a Convention reason and it recognised that part of the test which it had to apply was whether there was a real chance that she would be persecuted were she to return to her country of nationality.
The Tribunal’s conclusions are summarised in para.50 of its decision as follows:
Taking account of all the evidence presented, the Tribunal is not convinced that the applicant is in genuine fear of persecution on account of her claimed religion if she returns to China now or in the foreseeable future. It concluded that the failure of her business and her marriage and the loss of her son were the principal reasons, rather than religion, which drove the applicant to seek a new life abroad. Her responses to the Tribunal’s questioning confirmed this judgment as well as her admission that she is not a baptised Christian. Even in the event that she becomes a baptised Christian, the fact that she has utilised, as claimed, both “official” and unofficial houses of worship in China leads the Tribunal to conclude that the applicant does not have a genuine fear of persecution nor are there sufficient grounds to conclude that she would risk persecution on religious grounds on her return to China. (CB 93)
That paragraph alone demonstrates that the second part of the first asserted ground of review cannot be made out.
Denial of procedural fairness
This ground has not been particularised at all and without particulars the allegation is without substance. Even so, a brief consideration of div.4 of pt.7 of the Act would not be inappropriate. Section 422B(1) provides that div.4 of pt.7 of the Act is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. That is to say, it has codified the Tribunal’s procedural fairness obligations.
The most important sections of div.4 of pt.7 are ss.424A and 425. It is not apparent that there has been any breach of either of those provisions, nor is any breach of any of the other provisions of the division apparent.
Consequently, the second ground pleaded in the application is not made out.
Evidence before the Tribunal was true
Today the applicant said that everything she said to the Tribunal was true and that she is a genuine Christian who has been persecuted. As explained to the applicant at the outset of the hearing, the role of the Court is to declare and enforce the law which governs the Tribunal’s operations. The Tribunal’s function is, operating within the law, to determine the facts of the matter. If operating within the law the Tribunal arrives at an incorrect finding of fact, that is not a matter reviewable by the Court.
As I have found no jurisdictional error in the Tribunal’s conduct of the matter or the expression of its decision, the fact that it may have incorrectly disbelieved the applicant’s factual statements does not provide a basis upon which to set its decision aside. That is to say, the matters raised by the applicant today do not amount to a ground upon which an allegation of jurisdictional error can be based or found to have been made out.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been made out and the application will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 20 November 2008
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