SZNPR v Minister for Immigration

[2009] FMCA 1103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNPR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1103

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 424B, 425

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant: SZNPR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1203 of 2009

Judgment of: Barnes FM

Hearing date: 27 October 2009

Delivered at: Sydney

Delivered on: 27 October 2009

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Ms Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1203 of 2009

SZNPR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal made on 22 April 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of the People’s Republic of China born in 1983, arrived in Australia in November 2008 and applied for a protection visa.  She claimed that she was a Catholic who had practised at an unregistered church in China and that she feared persecution in China based on her religious beliefs.  She claimed that after a gathering at her home in March 2008 she was stopped by police, interrogated, held at the police station overnight, required to write a repentance letter and also to pay a penalty under the “one child policy” in relation to the birth of her second child. 

3. The applicant was interviewed by a delegate of the first respondent.  She provided letters of support in relation to her attendance at a Catholic church in Australia.  The application was refused by the delegate and the applicant sought review by the Tribunal.

4. The Tribunal invited the applicant to attend a Tribunal hearing. Before the hearing date the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) inviting her to comment on information in relation to a number of matters, including her evidence at the interview with the delegate about her knowledge of Catholicism, which the Tribunal said may cause it to find that “she did not have the level of knowledge of [her] religion that a person born in a Catholic family and regularly engaged in Catholic activities may be expected to have”. 

5. The applicant responded by letter dated 14 April 2009.  She claimed among other things that she was “nervous at the department interview” and so “did not explain the Holy Communion celebration in details” and that when asked to describe a story in the New Testament she had referred to Psalms because she had just heard that she was “to tell one favourite story in Bible” and perhaps she had misunderstood. 

6. In its reasons for decision the Tribunal set out in detail the claims made by the applicant in connection with her protection visa application and her evidence at the interview with the delegate.  It referred to the fact that she had provided a number of documents to the Department and to the Tribunal, including four photographs, one of which she claimed had been taken in China, as well as supporting letters about her attendance at church in Australia.  It also set out in considerable detail the evidence given by the applicant and her response to Tribunal questioning at the Tribunal hearing. 

7. It is apparent that on a number of occasions in the hearing the Tribunal raised with the applicant concerns about aspects of her evidence, including the level of her knowledge of aspects of Catholicism.  In the hearing the Tribunal observed that the applicant appeared to have little understanding of Catholic faith and practices and that her understanding appeared to be inconsistent with her claims that she was born into and grew up in a Catholic family and had engaged in Catholic practices since a young age.  The Tribunal recorded the applicant’s response to this and other issues raised by it during the hearing and also recorded that at the conclusion of the hearing it again raised the fact that it had a number of concerns about the applicant’s evidence which it set out for her. 

8. In its findings and reasons the Tribunal addressed the fact that “the applicant appeared to have been upset in the course of the hearing” and “stated that she suffered from flu”.  The Tribunal recorded that it had “offered the applicant an opportunity to adjourn the hearing to another day, as well as brief adjournments during the hearing”, but that the “applicant confirmed that she wished to proceed with the hearing”.  The Tribunal stated that it had “satisfied itself that the applicant was able to meaningfully participate in the hearing” and “was able to give evidence and present arguments” and that it had taken her “circumstances into account when making its findings”. 

9. However the Tribunal found that the applicant was not a witness of credibility.  It was of the view that she had “memorised certain elements of her written statement” and “was able to recite the information” therein, but that she had difficulty answering other questions posed by the Tribunal. 

10. The Tribunal addressed the applicant’s claims that she was born into a Catholic family, that since a young age her parents had taken her to religious gatherings, that she was baptised at the age of seven and that since becoming an adult she participated in and held religious gatherings as a result of which she was persecuted by the authorities.  However the Tribunal found that in her oral evidence the applicant had displayed “minimal knowledge of the principles and practices of her faith”.  It set out eight areas of specific concern, including that the applicant was unable to explain the teaching of the Church about those who are not baptised; her claim that the bible was difficult and that she did not try to memorise it; that she was unable to state who baptised Jesus; that she appeared to have no understanding of the principles of the confession or of its practice; that she could not recall the words of any hymns despite her claim that she sang hymns in every gathering and that she loved singing hymns; and that she had appeared unfamiliar with any prayers except for the Lord’s Prayer, despite her claims that she prayed every day and also at gatherings. 

11. The Tribunal did not accept the applicant’s explanation that she was “like a child in not pursuing knowledge and that she felt that having God in her heart was sufficient”, that she had attended gatherings when young, but had less opportunity to do so as an adult.  It found these claims to be inconsistent with the claims contained in the applicant’s written evidence which suggested that “she had a frequent and meaningful involvement in religious practices, which, in the Tribunal’s view, would necessitate some knowledge of religious beliefs and practices” and some knowledge of the prayers, psalms, and hymns she claimed to enjoy singing.  Nor did the Tribunal accept the applicant’s claim that her lack of knowledge of Catholic doctrine and practices was justified by differences in the church in China and Australia, having regard to the basic matters the Tribunal considered universal to the Catholic faith.

12. Given the applicant’s claims about her frequent attendance at gatherings, the Tribunal did not accept her claim that because she “followed a book, she could not remember any of the prayers”.  It found that given her claims about attendance at gatherings, she may be expected to remember at least some of the hymns and psalms that she sang. 

13. The Tribunal considered the photograph of what appeared to be a religious service the applicant had provided (that she claimed was taken in China).  However it found that the persons in the photographs were “not identifiable” and that it was “not clear that the applicant [was], in fact, depicted in the photographs” or that the photograph in question was taken in China.  It did not accept the photograph was probative evidence of the applicant’s involvement in religious activities in China and gave it no weight. 

14. The Tribunal also found that when asked about the distinction between the practices and operation of the official and unregistered church in China the applicant seemed to have little understanding of the differences.  It was of the view that if the applicant did have any involvement with the unregistered Catholic church in China she may be expected to be aware of and to articulate such differences.  It found that her inability to do so indicated her lack of contact with the unregistered church in China. 

15. For these reasons the Tribunal did not accept the applicant’s claims about participation in the activities of the unregistered church in China or association with those who engaged in such activities.  It set out in detail the aspects of the applicant’s claims about activities that it did not accept, including that it did not accept that she had ever come to the attention of the authorities because of her religious practices or that she was perceived by the authorities as a Catholic belonging to an unregistered church.  Nor did it accept that she had been detained, mistreated, or forced to sign an undertaking and warned not to engage in religious activities.  It did not accept her consequential claims about her home being searched, religious material being seized and the police monitoring her or her husband, or that her husband left the country to avoid harassment and that she left to avoid persecution.

16. Notwithstanding the applicant’s claim that she would not have left her family if she was not persecuted and that she wore a cross in China, the Tribunal found that she had not had any involvement with, nor any commitment to, Catholicism or Christianity in China. 

17. The Tribunal also addressed the applicant’s claims about activities in Australia. It accepted that she attended a church in Australia. Given its finding that she did not have any commitment to or involvement with the unregistered Catholic church in China, it was of the view that whatever knowledge about Christianity and Catholicism the applicant displayed, she had acquired through attendance at church in Australia. However as the applicant did not satisfy the Tribunal that she engaged in the conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee, the Tribunal disregarded such conduct under s.91R(3) of the Migration Act.

18. The Tribunal found that the applicant would not engage in any religious activities if she returned to China now or in the reasonably foreseeable future and that there was no real chance she would be persecuted for reasons of her religion. 

19. The Tribunal also addressed the claim that the applicant “was fined as a result of the breach of the one child policy, following the birth of her second son”, albeit the applicant had not suggested she would be persecuted in the future on that basis. 

20. In considering this issue the Tribunal noted that it had rejected the applicant’s claimed involvement in religious activities and that she was detained, and that it did not accept she was fined because of her religion or anti-government political opinion or because she was detained.  It found that the one-child policy would not be applied in a discriminatory manner with respect to the applicant.  The Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason because of the impact on her of the family planning laws. 

21. The Tribunal also considered that the applicant’s general statements that there was “no religious freedom and no human rights in China”, but found that these claims did not, on their own, give rise to a well-founded fear of persecution for a Convention reason. 

22. The applicant sought review by application filed in this court on 19 May 2009.  There are two grounds in the application.  There is some overlap between these grounds.  The first is that: 

    I was not considered fairly by RRT.  I will be put in jail if I attend House church gathering in China. 

23. The second is:

    I am not satisfied with RRT decision.  It is not fair.  They use more negative cases to refuse my application.  I believe in God.  RRT failed to assess my risk to return to China.

24. The applicant did not file written submissions.  In oral submissions she took issue with a number of matters.  First, she complained generally that the Tribunal had not given her a fair decision and that she was a Catholic.  Insofar as the applicant seeks merits review, merits review is not available in this court. 

25. The applicant also took issue with the Tribunal’s consideration of the photograph that she provided to it, which she said was taken in China and depicted her.  She referred to the difficulty of obtaining such a photograph in China in the underground church.  However such difficulty does not establish that the Tribunal fell into error in the manner in which it considered that evidence.  The Tribunal considered the photograph provided by the applicant which she claimed had been taken in China, but for the reasons which it gave, referred to above, did not accept that photograph as probative evidence of the applicant’s involvement in such activities in China.  Contrary to the applicant’s contention, it was open to the Tribunal not to accept the photograph as probative evidence of the applicant’s involvement in religious activities in China and to give it no weight for the reasons which it gave.  The fact that the applicant does not agree with this conclusion does not establish that the Tribunal fell into jurisdictional error. 

26. The applicant contended generally (and in ground one) that the Tribunal decision was unfair. I note the operation of s.424B of the Act. The applicant has not established that there was any failure to comply with the Migration Act in the procedure adopted by the Tribunal. As set out above, the Tribunal wrote to the applicant pursuant to s.424A of the Act. The applicant responded and the Tribunal took her response into account, albeit the central reasons for its decision were not based on specific matters set out in the s.424A letter, but rather on the evidence given by the applicant at the hearing.

27. The applicant also claimed that she was quite nervous at the Tribunal hearing. There is nothing in the material before the court to establish that the Tribunal failed to afford the requisite meaningful opportunity or invitation to attend a Tribunal hearing required under s.425 of the Migration Act (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126). The Tribunal considered the fact that the applicant appeared to have been upset and stated she suffered from flu. It offered her an adjournment, but she wished to proceed with the hearing. The Tribunal stated that it had satisfied itself that the applicant was able to meaningfully participate and give evidence and present arguments. There is nothing in its account of the hearing to indicate that this was not the case. Moreover the applicant was clearly put on notice by the Tribunal, the delegate’s decision, the s.424A letter and in the hearing that her apparent lack of a basic knowledge of the Catholic faith was an issue on the review. There is nothing to suggest that such a dispositive issue was not raised at the Tribunal hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 re s.425)

28. Indeed, at the Tribunal hearing the applicant acknowledged that she did not have an in-depth knowledge of Catholicism and she attempted to provide an explanation for this that was consistent with her claims to be a Catholic.  The Tribunal considered but did not accept her explanation.  As I indicated to the applicant, it is not for the court to determine whether or not she is a refugee or to make factual findings.  These are matters for the Tribunal.  The Tribunal’s finding in relation to the applicant’s level of knowledge and the impact on its view of her credibility were open to it on the material before it for the reasons that it gave. 

29. Insofar as the applicant’s claim of a lack of fairness is intended to raise a claim of actual or apprehended bias (see Minister for Immigration and Multicultural Affairs  v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28) there is nothing on the face of the Tribunal decision or in its account of what occurred in the hearing or otherwise in the material before the court to indicate that the Tribunal had a mind incapable of alteration or that the circumstances were such that may cause a fair-minded lay observer to reasonably apprehend that an impartial mind might not be brought to the resolution of the question to be decided by the Tribunal.

30. The applicant sought to explain her lack of knowledge of the faith despite having practised it as a child, on the basis that she was naïve and only sought to have God in her heart.  As submitted for the first respondent, the Tribunal’s rejection of that explanation was open to it on the evidence before it.  It occurred in circumstances where the applicant had been given the requisite opportunity to present her claims and to address the concerns of the Tribunal.  The grounds in the application are not made out. 

31. In closing submissions the applicant attempted to provide an explanation for her lack of knowledge of particular hymns.  This seeks merits review not available in this court.

32. The applicant also stated that she had not volunteered information about her family, but that the Tribunal brought it up.  Notwithstanding whether this evidence was volunteered by the applicant or arose as a response to Tribunal questioning, what is important is the evidence the applicant provided to the Tribunal about the nature of her practise of Catholicism as a child and as an adult.  It has not been established that the Tribunal fell into jurisdictional error in this respect. 

33. Insofar as the applicant contended that the Tribunal failed to assess her risk of returning to China, the Tribunal specifically addressed this issue but found in relation to her claims about religion that she would not engage in any religious activities if she were to return to China and on that basis that there was no chance she would be persecuted for reasons of her religion now or in the reasonably foreseeable future.  In addition, the Tribunal considered the possibility of a risk of persecution on the basis of the application of the Chinese family planning laws and any discriminatory impact on the applicant should she return to China as well as her general claims about a lack of religious freedom and human rights in China. 

34. As no jurisdictional error has been established, the application must be dismissed. 

    RECORDED   :   NOT TRANSCRIBED

35. The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the respondent.  The applicant told the court that she did not have the financial capacity to pay the costs at this moment.  However that is not, in the circumstances of this case, a reason for departing from the normal principle, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  18 November 2009