SZMPJ v MIAC

[2008] FMCA 1640

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1640

MIGRATION – RRT decision – Chinese applicant fearing persecution for Christian activities in China and Australia – Tribunal’s references to Australian conduct – no expressed finding that conduct was otherwise than for the purpose of strengthening refugee claim – no implicit finding – breach of s.91R(3) found – not immaterial – matter remitted.

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

Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26
SZGDJ v Minister for Immigration & Citizenship & Anor [2008] HCASL 479
SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515, [2008] FCAFC 105
SZMDC v Minister for Immigration & Anor [2008] FMCA 1282
SZMKK v Minister for Immigration & Anor [2008] FMCA 1416
SZMZA v Minister for Immigration & Anor (No.2) [2008] FMCA 1418

Applicant: SZMPJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2013 of 2008

Judgment of: Smith FM

Hearing date: 25 November 2008

Delivered at: Sydney

Delivered on: 17 December 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 10 July 2008 in matter 0801466. 

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 31 January 2008. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2013 of 2008

SZMPJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant came to Australia in October 2007, on a visa granted in China to allow her to visit a daughter who was studying here.  On 29 November 2007, she applied for a protection visa.  Her application attached a statement explaining why she feared persecution if she returned to China.  The evidence before the Court does not contain copies of the visa application and statement, but its contents appear to be sufficiently recited in the statement of reasons of the Tribunal. 

2. The applicant claimed that she was very active in a church since the 1980s, and that she was “first persecuted by the local government authority in my home town in 1998”.  This was not explained, nor were the details of her having “joined the local church in Australia”. 

3. A delegate refused the application on 31 January 2008.  A copy of his or her reasons is not in evidence, but I do not consider that this is significant, since the Tribunal appears to have addressed the applicant’s claims fully and de novo. 

4. On appeal, the applicant attended a hearing which was eventually completed with the assistance of an appropriate interpreter on 23 May 2008. A transcript is not in evidence, but the Tribunal gave a full account in its statement of reasons, and I have no reason not to accept this.

5. The Tribunal questioned the applicant about her background in China, and her claim to have practised Christianity in a “family church”. She told the Tribunal that she had been arrested in 2002 at a Christian gathering held in her clothing shop, and that she was detained for one week. She was again arrested in 2003 and detained for 10 days, when people gathered in her home. After this, police often came to her shop, she lost customers, the shop closed, and her marriage broke down. She had difficulty supporting her children, and went to a factory to work. She said that she could not go back to China “because of the illegal gatherings and because her business is finished and her husband beat her”.

6. The Tribunal attempted to test her involvement in Christianity, but she gave vague answers, and said that she had not yet been baptised.  She had some knowledge of some elementary matters, and showed the Tribunal a photograph showing her standing in front of a church in Sydney.  She also referred to attending some other churches in Sydney, but could not give details about them.  According to the Tribunal: 

   67.The Tribunal asked her when she started attending church after her arrival in Australia.  She said after a long time because she just came here and did not contact friends.  The Tribunal asked how long and she said over one month. 

   … 

   74.The Tribunal said it found it difficult to believe that she left China to practise her religion when she did not practise much in China and when she came to Australia it took her over a month to find a church.  She said she could not find a place to practise. 

   … 

   84.The Tribunal put to her that under the Migration Act if it believed that she had engaged in conduct in Australia in order to strengthen her claim to be a refugee it must disregard that conduct in assessing her claim to be a refugee. The Tribunal said that this means that if it believed she went to church or acquired Christian knowledge in Australia just to strengthen her case it cannot be taken into account. She said she wants to stay here that she cannot go back because of what happened to her father and brother and herself, because she had gatherings in the shop and was arrested.

7. The Tribunal’s description of the effect of s.91R(3) of the Migration Act 1958 (Cth) is not incorrect, but it is incomplete, because the section also requires the Tribunal to disregard “any conduct engaged in by the person in Australia” unless it is affirmatively satisfied that the conduct was engaged in “otherwise than for the purpose of strengthening the person’s claim to be a refugee”.  A failure by a Tribunal to appreciate this nuance can give rise to jurisdictional error if the Tribunal was left in doubt as to the applicant’s motives and takes the conduct into consideration (see SZMZA v Minister for Immigration & Anor (No.2) [2008] FMCA 1418). As I shall explain below, the Tribunal appears to have fallen into this error in the present case.

8. As well as putting its concerns to the applicant at the hearing, the Tribunal sent a letter inviting her to give written comments on a number of matters. Some of these probably did not come with the obligations under s.424A(1). However, it was obliged to follow that procedure in relation to information taken from the applicant’s daughter’s student application, which suggested that she was the 100% owner and manager of a profitable clothing shop in 2007. The evidence before the Court does not reveal all the particulars of this information which were put to the applicant, since it does not include the attachments to the Tribunal’s letter. No point has been taken by the applicant concerning this issue.

9. The applicant responded to the Tribunal’s letter in a letter dated 14 June 2008.  In response to the suggestion that at the hearing she “did not say you had joined a church, nor could you give the name of the churches, the denomination or the name of the Ministers”, the applicant said: “after one month I came to Sydney, I tried to find church I could commit to it.  Now I commit to Lidcombe church …”. 

10. Her agent later forwarded further documents purporting to corroborate the applicant’s claims about events in China and Australia.  Although these arrived after the Tribunal had appointed a date for handing down its decision, it is clear that the documents were all taken into account by the Tribunal. 

11. The Tribunal handed down its decision on 10 July 2008, affirming the delegate’s decision.  It gave detailed reasons for concluding that “the applicant is not a witness of truth and that she has fabricated her claims regarding her arrests and detention for her religious beliefs and organising or attending Christian gatherings in 2002 and 2003”.  These included inconsistencies and implausibility in her evidence, inconsistency with country information indicating “a high degree of religious tolerance in Fujian and particularly in Fuqing City”, and the information given with her daughter’s student visa application.  It identified valid reasons for having “a number of concerns” with the documents provided by the applicant’s agent. 

12. The Tribunal also gave specific reasons for concluding that it “does not accept that she left China for her religious belief”. These included a reference to the applicant’s evidence about attending church in Australia:

    123.Secondly, the Tribunal would also expect a person who left her country for her religious beliefs to attend church or a Christian gathering soon after their arrival, rather than over a month after her arrival, as is the applicant’s evidence.  The Tribunal finds it implausible the applicant’s explanation that it took her a month to find a church as she did not know where to go or how to take a train to another area, as her daughter is a student in Australia. 

13. It again referred to the applicant’s church attendances in Australia, when concluding that it should accept that she had attended a house church in China.  It accepted that she did attend church in Australia, but it found that she would not be at risk if she returned to China.  Its significant reasoning about this was: 

    127.As to the veracity of the claims that the applicant has been attending Christian house gatherings, known as the Family Church in China for many years and is a Christian, the Tribunal has some doubt for the following reasons.  At hearing the applicant indicated she had not been baptised, was unable to describe the process of baptism despite claiming she had witnessed a number.  While the applicant supplied the Tribunal subsequently with a baptism certificate, the Tribunal does not place much weight on it as it contradicts her evidence provided at hearing that she had never been baptized, and at hearing she could not explain the process of baptism.  She also could not explain in detail what she believed in as a Christian or what was unique about Christianity.  Further despite claiming that she left China because of her Christian belief, it took her over a month to attend a Christian gathering or church in Australia.  Despite the contradictory evidence regarding her baptism, considering the applicant possessed some knowledge of Christianity and seemed genuine in her belief in God, and the evidence that over a quarter of Fuqing’s population is Christian, and that she has attended Christian churches in Sydney the Tribunal considers it possible that she regarded herself as a Christian while in China and attended a house church.  The Tribunal therefore proposes to consider her claims in China on that basis.  [emphasis added]

    128.The Tribunal has considered information from external resources regarding religious freedom in Fuqing City, Fujian and China.  The Tribunal has formed the view from the country information referred to above that it is not illegal to be a Christian in China.  The Tribunal accepts that there have been difficulties for some Christian groups in China, and in particular some house churches but that their treatment varies greatly among the provinces in China.  The Tribunal is satisfied that Fuqing City, in which the applicant’s village is situated, is one of the main centres of Christian activity in China, that there are numerous churches and that the attitude of local authorities towards unregistered Christian groups is one of tolerance.  The Tribunal also is satisfied the applicant is not evangelical, nor a leader but a member of the church and her activities included attending the gatherings and listening – albeit infrequently.  The Tribunal is satisfied that the group of which the applicant claims to have been a member, was very small, with 10 to 20 people had no dedicated church premises as it was her evidence people attended people’s houses to pray, had no denomination as was her evidence and was not involved in any activities other than praying to God and reading the Bible.  The Tribunal is satisfied that the group which she belongs to does not fall into the category of religious group likely to attract the adverse attention of the authorities. 

    129.On the basis of the independent country information indicated above, taking into account the applicant’s religious profile and that the Tribunal does not accept that the applicant was the subject of the arrest and detention she described, the Tribunal does not accept that there is a real chance the applicant will face persecution if she returns to Fuqing City, Fujian, China, where she has lived at least the last ten years of her life and where she was born, because of her religious belief and activities. 

14. It later said: 

    135.The above matters lead the Tribunal to conclude that the applicant is not a witness of truth.  As a result the Tribunal does not accept that the applicant was arrested and detained in 2002 and 2003.  It does not accept that her family was harmed in 1998 because they are Christians who attend house gatherings, called the Family Church.  It follows that it does not accept that she was mistreated or harmed in any way because of her religious beliefs.  While the Tribunal accepts that the applicant is a Christian, it does not accept based on the independent country information on China and Fujian, where she has lived most of her life, that she will face persecution if she returns to China in the reasonably foreseeable future because of her religious belief and activities. 

    136.For these reasons set out above the Tribunal is not satisfied that the applicant was of any interest to the Chinese authorities because of her religious beliefs when she departed for Australia.  The Tribunal accepts that she does not want to return to Fuqing City, Fujian, but is not satisfied that the reason for this arises from a fear of being persecuted because of her religious beliefs.  The Tribunal is of the view that if she returned there she could continue to participate in a level of religious activity consistent with her beliefs, and that if she did so she would not face a well‑founded fear of Convention‑related persecution. 

15. The Tribunal also considered whether the applicant would be at risk of harm from her former husband, or for breach of the Chinese family planning policy, and it accepted the applicant’s disclaimers of such claims.

16. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional errors.  I do not have power to consider whether the applicant should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia. 

17. The applicant has not filed any amended application, evidence or submissions, and relies on the grounds set out in her original application:

    1.The RRT decision was affected by jurisdictional error in that the RRT failed to consider important evidence provided by the applicant: 

    Particulars: 

    a)The RRT failed to give sufficient consideration to the applicant’s claims and the written evidence given by the local church. 

    b)The RRT failed to consider the applicant’s current religious practice in Sydney. 

    2.The decision was affected by jurisdictional error in that the RRT failed to invite the applicant to comment on information that is relevant to his [sic: her] application. 

    Particulars: 

    The RRT (in Para 116) found ‘independent evidence available to the Tribunal indicates that there is a high degree of religious tolerance in Fujian and particularly in Fuqing City, China. 

    The applicant has never been made aware of this information and has never been given an opportunity to comment on it.  The applicant believes the ‘independent evidence’ is incorrect and is inconsistent with the situation in her hometown. 

18. I am not persuaded that there was any “important evidence provided by the applicant” which was not considered by the Tribunal.  The Tribunal’s statement of reasons exhaustively identifies her evidence, including the documentary material forwarded shortly before it handed down its decision.  The complaint made in particular (a) of a failure to give the evidence “sufficient consideration”, appears to argue only with the merits of the Tribunal’s weighing of the evidence.  However, this does not raise a jurisdictional error, and I am unable to identify one in the Tribunal’s reasoning. 

19. Particular (b) of Ground 1 touches upon how the Tribunal applied the direction in s.91R(3) to disregard conduct “engaged in by the person in Australia”, and thereby raises difficult issues.  I invited the Minister’s counsel to address me on whether the Tribunal correctly applied the provision when relying upon its findings about the applicant’s attendances at church in Australia. 

20. I have referred above to the Tribunal’s discussion of this with the applicant at the hearing and in its s.424A letter. I have extracted above paragraphs 123 and 127 in its “Findings and Reasons”, where it expressly made findings about the applicant’s church‑going activities in Australia, and then applied those findings when determining that the applicant did not have a well‑founded fear of persecution if she returned to China. I have also extracted paragraphs 129 and 135, where it applied findings about the applicant’s ‘religious profile’ and that she ‘is a Christian’, leaving obscure whether it took her Australian conduct into account when reaching conclusions as to the future risk of persecution in China.

21. A significant difficulty arises because nowhere in its “Findings and Reasons” does the Tribunal address the effect of s.91R(3), nor does it make any finding in terms of s.91R(3)(b) that the applicant’s conduct when attending church in Australia was “otherwise than for the purpose of strengthening the person’s claim to be a refugee”. The only reference to s.91R(3) in the whole of its reasons occurs in its description of the hearing, and, as I have explained above, that reference is suggestive of a misunderstanding of the section, rather than the converse.

22. Essentially, the Tribunal’s reasoning in relation to the applicant’s Australian church attendances: 

    i)found in paragraph 123 that the applicant did not attend church in Sydney until more than one month after her arrival, and applied this in support of a conclusion that she was not motivated to leave China “for her religious beliefs”;

    ii)found in paragraph 127 that she then attended churches in Sydney, and applied this in support of a conclusion that “it [is] possible that she regarded herself as a Christian while in China and attended a house church”.  This finding formed part of the consideration in paragraphs 128 and 129 of “her claims in China”, in which the Tribunal concluded that she could return safely to China and continue her church attendances; and 

    iii)is obscure whether the Tribunal addressed the applicant’s claim to have a well‑founded fear of persecution as a result of her Christian activities in Australia, in the nature of a ‘sur place’ claim. If the Tribunal’s references in paragraph 129 to “the applicant’s religious profile” and in paragraph 135 to “the applicant is a Christian” include consideration of these activities, then the Tribunal might appear to have obliquely addressed this claim. Otherwise, there is no suggestion in its reasons that it did so. Nor does it say that it thought that it was obliged under s.91R(3) not to address the applicant’s evidence in support of her sur place claim.

1. I accept the submissions of counsel for the Minister that the first of these elements discloses no jurisdictional error under s.91R(3). The finding relied upon by the Tribunal concerned inaction by the applicant which was “not an element of the [applicant’s] evidentiary case before the Tribunal”. Upon the authorities which I discussed in SZMDC v Minister for Immigration & Anor [2008] FMCA 1282 at [22]‑[26], such inaction does not come within the subsection’s concept of “conduct engaged in by the person in Australia”. As counsel pointed out, this interpretation appears to have received support in the High Court in SZGDJ v Minister for Immigration & Citizenship & Anor [2008] HCASL 479 at [5], subsequent to the Full Court’s judgment in SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515, [2008] FCAFC 105.

2. In relation to elements (ii) and (iii), counsel for the Minister conceded that the applicant’s actual attendance at churches in Sydney was conduct which she presented in support of her claims to be a refugee, and therefore fell within the concept of “conduct” in s.91R(3). He conceded that the Tribunal had regard to that conduct when making its determination of refugee status. However, he submitted that the absence of any finding by the Tribunal in terms of s.91R(3)(b) did not give rise to the jurisdictional error identified in SZJGV, because: 

   i)either there was an implicit finding by the Tribunal that the conduct was devoid of the motive referred to in s.91R(3)(b) (applying reasoning which I explained and applied in SZMDC (supra) at [29]‑[31]);

   ii)or, if there was no such implicit finding, the error under s.91R(3) was of no material consequence to the Tribunal’s ultimate conclusion and decision. This was because the Tribunal would have arrived at the same conclusions as to a risk of persecution even if it had not taken into account its positive finding about the applicant’s Sydney Church attendances. It could have avoided the making of a finding about the truth of that conduct, and still have found that the claimed fear was not well‑founded. This was because, on the country information accepted by the Tribunal, the conduct claimed by the applicant in China and Australia would not give rise to a risk of persecution if the applicant returned to China (compare SZMKK v Minister for Immigration & Anor [2008] FMCA 1416 at [27]‑[31], applying SZJGV (supra) at [31], also SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28], [55]‑[59], [91]).

3. However, I am not persuaded that the Tribunal made an implicit finding that the applicant’s church attendances in Sydney were motivated by reasons not including a desire to strengthen her refugee claim.  This is not an obvious nor necessary implication of the Tribunal’s acceptance that the attendances occurred, nor of its finding that they showed that she “regarded herself as a Christian”. Section 91R(3) must be construed so as to encompass conduct which has mixed motives and reasons and, on the construction taken in SZJGV, it requires that the conduct may not be taken into account either as supporting or as disproving a refugee claim, unless a motive of strengthening the claim is positively excluded. 

4. The Tribunal found that the present applicant was not “a witness of truth” about much of her evidence, and the Church attendances which it found to have occurred were potentially equivocal as to her motives and reasons, even if they did show that she regarded herself as a Christian. In this situation, the absence of a finding in terms of s.91R(3)(b) about her conduct tends to suggest that such a finding could not be made by the Tribunal, rather than it was implicitly made. That the Tribunal was probably in doubt about the applicant’s motives, but thought that it could still take the conduct into account, is also suggested by its imperfect explanation of s.91R(3) to the applicant at the hearing. I therefore do not accept counsel’s first submission.

5. Counsel’s alternative submission is also problematic, because it invites the Court to embark upon a hypothetical reconstruction of the Tribunal’s reasoning to avoid findings about the applicant’s Sydney church attendances which it actually made, and which it applied in the course of determining that her fear of persecution was not well‑founded. The Tribunal did not reason by assuming the truth of the applicant’s claimed conduct in China and Australia, but made careful findings which accepted only part of her evidence. It then arrived at its own opinion as to the nature of her possible commitment to Christian worship in China and Australia, as the foundation for its assessment of the risk of persecution if she returned to China. In my opinion, its conclusion about her Sydney church attendances in paragraph 127 was an intrinsic part of its reasoning about this, and cannot be treated as immaterial to the conclusion arrived at by the Tribunal as to her refugee status. I am not persuaded that the Tribunal’s failure to address that conduct under s.91R(3)(b) was immaterial to its decision. The decision was therefore affected by jurisdictional error.

6. This conclusion follows whether or not the Tribunal’s later references to the applicant’s religious profile and her being a Christian were partly founded upon its finding in paragraph 127 about her Sydney church attendances. However, I am inclined to read these references also as being so founded.

7. This is because it seems unlikely, if the Tribunal erroneously took into account the applicant’s recent Church attendances when considering risks arising from her past attendances at Church gatherings in China, that it would then have disregarded them when considering the risks arising directly from the Australian Christian activities.  An alternative understanding of its reasoning in paragraphs 129, 135 and 136 would be that the Tribunal overlooked the sur place claim entirely, contrary to its duty well established by authorities such as Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. Or that it thought that under s.91R(3) it could have regard to conduct in Australia to assess risks arising from conduct in China, but not to assess the risks arising directly from the conduct in Australia. However, both of these alternatives appear unlikely upon a general reading of the Tribunal’s statement of reasons.

8. On balance, I consider it most probable that the Tribunal became confused as to the effect of s.91R(3), and overlooked the need to make findings excluding a s.91R(3)(b) reason for the applicant’s Australian church attendances, before having regard to its findings about that conduct when assessing her risk of being persecuted in China as a Christian if she returned. I am therefore satisfied that jurisdictional error occurred, and that the applicant should be afforded relief by way of writs of certiorari and mandamus.

9. This conclusion means that I do not need to examine Ground 2 of the application. However, I would accept the submissions of counsel for the Minister, that the Tribunal was not obliged under s.424A(1) of the Migration Act to put to the applicant particulars of the general country information relied upon by it (see s.424A(3)(a)). Moreover, the Tribunal appears sufficiently to have put the gist of this information to the applicant both at the hearing and in its subsequent letter (see [71] of its reasons). The applicant’s contention that the information was “incorrect and is inconsistent with the situation in her hometown”, appears to me to do no more than argue with the merits of the Tribunal’s reasoning.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  17 December 2008