SZNIO v Minister for Immigration

[2009] FMCA 518

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 518

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

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

SZJGV v Minister for Immigration [2008] FCAFC 105

First Applicant: SZNIO

Second Applicant: SZNIP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 621 of 2009

Judgment of: Driver FM

Hearing date: 1 June 2009

Delivered at: Sydney

Delivered on: 1 June 2009

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Mr R Baird
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 621 of 2009

SZNIO

First Applicant

SZNIP

Second 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 made on 18 February 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant and her husband protection visas.  There are two applicants, a husband and wife.  The relevant protection visa claims were made by the applicant wife.  They arrived in Australia on 4 June 2006.  They applied for protection visas on 29 August 2008.  The application was refused by a delegate of the Minister on 20 November 2008.  On 3 December 2008 the applicants applied to the Tribunal for review of the delegate's decision.

2. The Tribunal was unwilling to make a favourable decision on the papers and invited the applicants to a hearing on 21 January 2009.  Both applicants attended and gave evidence on that day.  The Tribunal noted that the principal applicant claims that she left China because she feared persecution by reason of her religion. She claimed that she wants to be able to worship freely and live with dignity.  She claims to have been arrested by the authorities along with other members of her family on occasions in 1998, 1999 and 2006.  On each of these occasions they were warned to stop holding services in their home or to be sent to a labour camp.  The applicant wife also claims she had attended church in Australia on a weekly basis since May 2008. 

3. The Tribunal had regard to country information concerning the practice of Christianity in China.  The Tribunal accepted that some Chinese citizens may face persecution as a result of having practised or wishing to practise the Anglican faith as the principal applicant claims that she does.  However, the Tribunal did not accept the applicants' account of their experiences in China.  The Tribunal was concerned about the vagueness of the principal applicant's claims.  The Tribunal was also concerned about the delay by the applicants in seeking protection after they arrived in Australia and the delay in the principal applicant commencing religious practice in Australia. The Tribunal disregarded the applicant wife’s religious practice in Australia as conduct engaged in for no reason than to enhance her protection visa claims.

4. The applicants rely upon a show cause application filed on 18 March 2009.  Ground 1 criticises the Tribunal for agreeing with the delegate's decision and refers to country information relied upon by the delegate as Chinese communist party propaganda.  The applicants refer to paragraph 32 of the Tribunal decision (court book, page 80).  In that paragraph the Tribunal refers to country information relied upon by the delegate.  That country information referred to the toleration of both registered and unregistered churches in China.

5. The Tribunal in its reasons at [56] (court book, pages 84-85) referred to a report from the United States Department of State in 2007 concerning religious freedom in China.  That report referred to the attempts by the Chinese government to control religious practice and its poor respect for freedom of religion.  The report referred to restrictions, intimidation and harassments of members of unregistered religious groups.  It follows and I find that, whether or not the delegate made any error in the consideration of country information, the Tribunal did not do so.  The Tribunal found consistently with recently available country information that Chinese citizens faced some risk of persecution on account of their religion.  There is no arguable case of jurisdictional error arising from ground 1.

6. Ground 2 asserts jurisdictional error in general terms. The Tribunal decision turned in part on the delay by the applicants in seeking protection in Australia based upon Departmental records. That was information requiring disclosure pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). On 20 January 2009 the Tribunal wrote to the applicants pursuant to s.424A disclosing that information and seeking comment on it (court book, pages 70 and 71). The applicants replied by letter dated 22 January of 2009 (court book, pages 72-74). I am satisfied that the Tribunal met his obligation of disclosure under s.424A(1) in relation to the information derived from the Departmental file which the Tribunal relied upon.

7. The other possible legal argument concerning jurisdictional error involved s.91R(3) of the Migration Act. The Tribunal's reasoning on that issue is somewhat confused. The Tribunal notes at [68] of its reasons (court book, page 87) that the principal applicant did not attend church until May 2008. The Tribunal rejected the principal applicant's explanation for that delay. At [69] (court book, page 87) the Tribunal states:

   The Tribunal considers that a failure to attend church is not conduct engaged in by a person in Australia for the purposes of s.91R(3) of the Act.  The Tribunal is therefore not obliged to disregard the applicant's failure to attend church for a given period when considering her application.

8. On the other hand, at [73] of its reasons (court book page 88), the Tribunal did disregard the applicant's conduct in Australia in attending church here.  The Tribunal accepted that the applicant had attended St John’s Anglican Church at Campsie since May 2008 but was not satisfied that the applicant's attendance at church was conduct engaged in other than for the purpose of strengthening her claim for refugee status in Australia.

9. There are two problems with this reasoning. The first is that it is hard to reconcile the Tribunal's statement at [69] of its reasons (court book, page 87) that a failure to attend church is not conduct engaged in by a person in Australia for the purposes of s.91R(3) of the Migration Act with the statement of the Full Federal Court in SZJGV v Minister for Immigration [2008] FCAFC 105 at [22] that:

   Inaction can constitute conduct within the meaning of s.91R(3).

10. The second difficulty with the Tribunal's reasoning is that if a failure to attend church was not conduct engaged in by a person in Australia for the purposes of s.91R(3) it is difficult to understand the basis upon which the Tribunal considered that conduct in its consideration of the motivation for that conduct under s.91R(3). It is clear from the Tribunal's reasoning at [73] of its reasons (court book, page 89) that a significant factor bearing upon the Tribunal's reasoning as to the applicant's motivation in attending church from May 2008 was the delay in that attendance.

11. Nevertheless, the difficulties in the Tribunal's reasoning, while they indicate error in an understanding of the operation of s.91R(3), do not go to jurisdiction. The first reason is that the applicant's delay in attending church in Australia was a necessary element of the consideration by the Tribunal of the applicant's motivation for ultimately commencing attendance, in order to determine whether that was for a reason other than strengthening her protection visa claims. Accordingly, the Tribunal was entitled to have regard to the applicant's delay in commencing religious practice in order to reach a decision for the purposes of the section.

12. Secondly, the applicant's failure to attend church prior to May 2008, while it may in my view be conduct for the purposes of s.91R(3), could not on any view, be conduct engaged in for the purpose of enhancing the applicant's protection visa claims. The applicant is claiming protection on the basis of her asserted Christian practice. A failure to engage in that practice in Australia would not in any way support that claim. It is for that reason that the Tribunal was not required to disregard the applicant's inaction pursuant to s.91R(3).

13. I find that there is no arguable case of jurisdictional error by the Tribunal. The Tribunal decision is therefore a privative clause decision. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

14. Costs should follow the event in this case. The Minister seeks scale costs of $2,935. The applicants did not wish to be heard on costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  3 June 2009