SZMQQ v Minister for Immigration
[2009] FMCA 677
•8 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMQQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 677 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for Christian religious practices – disbelieved by Tribunal – no jurisdictional error identified in Tribunal proceedings – application dismissed. |
| Migration Act 1958 (Cth), s.91R(3) |
| Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZMQQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 700 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 8 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr A Markus |
| 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 $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 700 of 2009
| SZMQQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in February 2008 in a tour group. On 14 February 2008, she applied for a protection visa assisted by a Migration Agent, Ms Weiming Qian. A statement attached to the visa application recounted a history upon which she claimed to fear persecution if she returned to the People's Republic of China.
The applicant claimed to have been introduced to Christianity and, from January 2004, to have participated in a house church. She said: “we prayed, sang praising songs and read Bible together”. She claimed that in November 2004 the group was raided by police. She and others were taken to a police station, where they were interrogated and mistreated before the applicant was released after three days. She claimed that her husband divorced her in January 2005, as a result of the police action and that she decided to go overseas. She referred to working part-time in a clothes shop as a shop assistant at that time. She said she got an Australian visa “with the help of a friend”. She said “I am looking for a Chinese church and I am eager to worship and praise God in church in Australia”.
After an earlier scheduled interview was adjourned, the applicant attended an interview with a delegate on 20 March 2008. In the course of this, she gave information about her past employment in China which was inconsistent with what was in her protection visa application, and was also inconsistent with statements in a report by the tour agency to the Australian Embassy after the applicant failed to return to China. The applicant also gave evidence about her Christian activities, which led the delegate to conclude that “she is not a committed Christian who attends church consistently or has any prominent or organisational role in her church”. For that reason, and other reasons going to the applicant's credibility, the delegate did not accept that she had been arrested and detained, and did not accept that she would be prevented from practising her religion if she returned to China.
The applicant appealed to the Tribunal and continued to be assisted by her agent. She attended a hearing which was rescheduled to accommodate a complaint of ill health on the part of the applicant, the hearing eventually being held on 20 June 2008. The Tribunal handed down a decision on 22 July 2008, but that decision was set aside by consent order in this Court on 21 November 2008. The Minister appears to have conceded that a jurisdictional error arose from a factual mistake by the Tribunal when reading a translation of a document which the applicant said was her divorce certificate. That error is not repeated in the decision of the present Tribunal which I am reviewing.
After the remitter, the applicant obtained the adjournment of the hearing appointed by the Tribunal, based on a medical certificate that she was “unfit to talk or answer any questions” for a specified period. The adjourned hearing was held on 17 February 2009, which was after the period covered by the medical certificate. Although the applicant again complained of her health, she presented no medical evidence of any incapacity to participate in the hearing on that day, and the Tribunal proceeded with the hearing. According to the records of the Tribunal the hearing lasted for two and a half hours and was interrupted by a “toilet break”.
The Tribunal gives a description of the hearing in its statement of reasons and I have no reason to doubt the correctness of its description. The applicant has been given an opportunity to present a transcript of the recording, but has not tendered a transcript. The Tribunal noted that the applicant at various points sought to explain difficulties in her evidence by saying that she was suffering from confusion and loss of memory, but there was no medical evidence to support this claim before the Tribunal, and none has been presented to the Court.
According to the Tribunal, at the end of the hearing the Tribunal offered the applicant more time to comment or respond to information that she had given in the course of the hearing, and it agreed “to give the applicant until close of business on 20 February 2009 in order for her to provide any documents that she wanted to provide”.
The applicant did not present any additional documents or other evidence or submissions to the Tribunal before it made its decision on 3 March 2008. The Tribunal affirmed the Delegate's decision.
In its findings and reasons, the Tribunal addressed the applicant's complaints of incapacity:
Throughout the hearing, the applicant complained of headaches, memory problems, sore throat and other ailments. Although there is before the Tribunal two medical certificates, one of those (from the applicant’s doctor) was used in support of a request to adjourn the hearing and based on that evidence, the hearing was adjourned. Although the medical certificate from (the applicant’s doctor) (folio 27) refers to her suffering from sore throat and pharyngitis, the applicant did not provide any medical evidence relating to the day of the hearing of 17 February 2009. Throughout the whole hearing, she was complaining of all sorts of ailments but she did not provide any medical evidence in support of her claims. Without medical evidence, the Tribunal is not satisfied that the applicant suffers from any condition which precluded her from putting her case in full before the Tribunal. In essence, the Tribunal is not satisfied that she suffers from any condition that the Tribunal needs to take into consideration in determining the review. The applicant gave an impression that she did not wish to participate in the hearing.
The Tribunal then addressed the inconsistencies in the applicant's evidence concerning whether and when she was divorced, and the history of her employment in China. These concerns had been put to the applicant in the course of her interviews by the Delegate, the first Tribunal and the second Tribunal, and had also been put to her in a written invitation for comment sent to the applicant's agent by the first Tribunal.
In relation to whether the applicant was divorced, the Tribunal considered evidence from the travel agency that at one point it had contacted the applicant's husband and had obtained confirmation that she had a “fixed job and happy family”. However, the Tribunal also considered a purported divorce certificate showing a divorce in January 2005, and it said that “despite creditability concerns, the Tribunal accepts as plausible that the applicant is divorced”. However, it said that it did not accept that she was divorced for the claimed reasons “namely because Christian related activities angered her former husband who decided to divorce her”.
The Tribunal also addressed clear inconsistencies in the evidence before it about the applicant's employment history, including information from the travel agency to the Australian Embassy. The Tribunal said:
The information raises doubt about the veracity of her claims as well as her creditability generally. The Tribunal is not persuaded by her explanations and she did not know what the travel agency had said or done, or that all that she had provided is true, or that she promises that she is telling the truth in front of God, or that she did not know what those who have helped her had done, or that she has never worked for that company, or that she only paid money and she does not know what they have done.
The Tribunal then discussed what I would understand to be its fundamental reason for disbelieving the applicant's claims. It stated its conclusion at the start of that discussion:
80. As discussed below, the applicant’s knowledge of basic Christian concepts is limited and incoherent. In summary, she was unable to tell the Tribunal about the difference between the registered and the unregistered church. She thought that Catholics are Muslims. She stated that she had converted from Catholicism to Christianity. She did the cross sign in triangular fashion rather than the cross sign. She did not know any Christian prayers. In essence, the applicant’s overall knowledge as discussed with her in the course of the hearing relating to Christianity raises fundamental doubts about her claims. In saying this, the Tribunal recognises that the applicant comes from China, a country with serious human rights issues including restrictions on religious freedom which naturally would limit one’s ability to acquire knowledge about their religion. However, the applicant’s lack of knowledge in the Tribunal’s opinion is fundamental and demonstrates that she lacks basic understanding of Christianity, inconsistent with her claims.
The Tribunal repeated various parts of the evidence given at the hearing, which explained its opinion about the applicant's understanding of Christianity. Its discussion included:
87. Whilst the applicant knew some matters relating to Christianity, such as the number of Apostles, that Judas was the Apostle who had betrayed Jesus, and that the Bible was the main text of Christianity, her overall knowledge was limited. The Tribunal asked the applicant if she knew any Christian prayers, to which the applicant replied, “a little bit.” The Tribunal asked her which one or ones she knew. There was silence for quite some time and the applicant replied, “You won’t be hungry… for those who believe, you won’t be thirsty.” The Tribunal asked her if she understood the meaning of the Trinity. The applicant stated she had just read the Bible, by turning the page. She later said, “I don’t know.” On her own evidence, she has not been baptised because, “I wasn’t good enough and I haven’t practised for long.” . In relation to which part of the Bible she had read, she said, “I only read together and the priest asked us to turn over the page.” The Tribunal referred to her oral claim that she was a Catholic and asked her if she knew how Catholics do the cross sign. The applicant put her hand on her forehead, then to the left, then to the right, and this was verbalised on the record. The Tribunal asked the applicant if she knew who Joseph is, to which the applicant replied, “I forgot.” The Tribunal asked her if she knew where Jesus was born. The applicant complained of having a headache and then she said, “I forgot.”
The Tribunal then applied its view of the falsity of the applicant's claims to have been an adherent of Christianity, to reject the other elements in her claims. It said:
The Tribunal is of the view that the applicant has a limited understanding of Christianity, raising serious doubts about the veracity of her claims and her credibility generally. For the stated reasons, the Tribunal does not accept that she was arrested, or that consequently she often suffered from confusion and lost some of her memory.
The Tribunal referred to the lack of corroborative evidence and inconsistencies in the applicant's evidence about her claimed detention, and said:
Given the above noted concerns and for the stated reasons, the Tribunal does not accept that the applicant is a Christian or that she is a Catholic and/or a Catholic Christian, or that she has ever been involved in any Christian/Catholic related activities in China, such as attending church or any gathering.
The Tribunal therefore did not accept any of the elements in the applicant's claims to have been persecuted and to be at risk of persecution if she returned to China.
The Tribunal noted some photographs presented to it by the applicant to show “her Christian related activities” in Australia, but it said that it was not satisfied that she had engaged in those activities “otherwise than for the purpose of enhancing her application for a protection visa”. It therefore applied s.91R(3) of the Migration Act to disregard that conduct.
I have carefully considered the procedures followed by the Tribunal and its reasons, and am unable to identify any arguable jurisdictional error affecting its decision.
The applicant's application to the Court seeks orders remitting the matter to the Tribunal for further consideration, however I do not have power to make these orders unless I am satisfied that the Tribunal's decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee nor whether she is entitled to a protection visa or any other permission to stay in Australia.
The applicant's application contains the following grounds:
1.RRT did not take into account my real situation in China. RRT did not consider my application fairly.
2.RRT did not give me more chance to explain their doubts. I am Christian. I will be put in jail if I return to China.
These are taken from a precedent frequently seen in this Court at present. I am unable to give them meaningful application to the present decision of the Tribunal, in the absence of any particulars or oral or written submissions explaining a contended jurisdictional error. Prima facie, they appear only to invite the Court itself to assess the merits of the applicant's refugee claims, but this is not the Court’s function.
In relation to the Tribunal’s procedures, the applicant's oral submissions today made three criticisms of the hearing held by the Tribunal. These were that it did not give her a break in a hearing which she said was long and lasted until 5.30 pm, that the Tribunal's questions made her feel nervous and stressed, and that the Tribunal put questions to her which were not favourable to her.
I have considered these complaints. It is difficult for me to address them on principles of jurisdictional error, in the absence of better evidence and particulars of the parts of the hearing which demonstrate the failure of procedure by the Tribunal that is being contended. As I have noted, a transcript has not been presented to the Court.
On the Tribunal's description of the hearing, it is true that the Tribunal did question the applicant thoroughly about her claims. However, it was its duty to do that, and I can detect on the evidence before me no basis for a conclusion that the manner in which the Tribunal conducted the hearing gives rise to jurisdictional error, in particular, upon principles of apprehended bias discussed by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
As I have indicated above, the Tribunal did consider the applicant's complaints that some of her answers which concerned the Tribunal were caused by nervousness, confusion and loss of memory. However, in my opinion, it made no error when concluding that these complaints were unsupported by satisfactory medical evidence, and that they did not adequately explain the defects in the applicant's evidence which the Tribunal identified. I do not consider that the hearing lasted for an oppressive duration.
I have not been able to identify in the applicant's submissions to me today any jurisdictional error which allows me to remit the case to the Tribunal.
The applicant was referred to a barrister for free legal advice, and he has provided her with an amended application which contains the following ground:
1.The Second Respondent (The Tribunal) failed to review the delegate’s decision as required by law.
Particulars
(a)The Tribunal having accepted as plausible that the applicant may have been divorced, failed to consider the effect of that finding on the information provided by her travel agency (including that it had contacted her husband).
This ground is not adequately presented since it does not identify the nature of the jurisdictional error which is asserted to arise from the suggested omission in the Tribunal's reasoning. If it obliquely invites the Court to assess the rationality of the Tribunal's reasons which discussed the inconsistent evidence concerning the applicant's marital and employment history, it does not do so clearly. Moreover, I can detect in the Tribunal's reasoning no material irrationality or unreasonableness, which might evidence jurisdictional error within principles referred to by the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. There was no inconsistency, in my opinion, in the Tribunal accepting as “plausible that the applicant is divorced”, and yet having doubts about the applicant's veracity raised by the travel agency evidence concerning her employment status.
I would not, in the circumstances, infer that the Tribunal did not consider the factual point made in the particular to the ground. Particularly, since I do not consider that the Tribunal's discussion of the inconsistencies in the evidence concerning her employment, formed a substantial or even material part of its conclusion that the applicant's claims to be a Christian should not be accepted.
Moreover, the Tribunal's conclusions about her employment evidence at the end of its paragraph [79], suggests that the ‘doubts’ which were raised by the travel agency information about her employment were founded upon the applicant's responses to its own questioning in the course of the hearing, rather than the information itself.
For all these reasons I am unpersuaded that the amended application establishes jurisdictional error affecting the Tribunal's decision.
Since I have been unable to find any grounds for setting aside the Tribunal's decision, I must dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 17 July 2009
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