SZNQL v Minister for Immigration
[2009] FMCA 845
•28 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNQL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 845 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China on the basis of the Chinese one child policy and for reasons of religion – applicant not believed – whether the Tribunal took account of the applicant’s asserted medical problems when assessing her credibility considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424A |
| Applicant: | SZNQL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1320 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 28 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms L Buchanan Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1320 of 2009
| SZNQL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 1 May 2009. The Tribunal affirmed a decision of the delegate and the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. Background facts relating to the applicant’s claims and the Tribunal decision on them are conveniently set out in the Minister’s outline of submissions filed on 24 August 2009. I adopt as background for the purposes of this judgment paragraphs 3 through to 11 of those written submissions:
The applicant, a national of the People’s Republic of China (“China”), arrived in Australia on 8 December 2007 and applied for a protection visa on 29 July 2008 (Relevant Documents "RD" 19-51). The applicant's claims were set out in answer to questions 41 to 45 in her protection visa application and in a statement attached to that application (RD 25-28, 45-48). The applicant also made further claims at an interview with a delegate of the first respondent (RD 64, 66, 71-73).
In summary, the applicant claimed to have a well-founded fear of persecution in China by reason of her having broken China's one child policy and arising from her Catholicism.
On 25 October 2008 a delegate of the first respondent refused the applicant’s protection visa application (RD 59-73). On 20 November 2008 the applicant applied to the Tribunal for review of the delegate’s decision (RD 77-80).
The applicant attended a hearing of the Tribunal on 4 February 2009 (RD 90-1).
On 13 February 2009, the Tribunal sent to the applicant a letter pursuant s.424A of the Migration Act 1958 (Cth) ("the Migration Act") seeking comment on information put to the applicant at the hearing that the Tribunal considered might be the reason or part of the reason for affirming the decision under review (RD 97-100). The applicant responded by letter dated 3 March 2009, also sending to the Tribunal a number of supporting documents (RD 101-113).
The Tribunal, having considered the further material provided, invited the applicant to attend a further hearing of the Tribunal on 20 April 2009, which the applicant also attended (RD 114-5, 123-5).
Tribunal decision
In a decision notified to the applicant by letter dated 4 May 2009, the Tribunal affirmed the decision of a delegate of the Minister refusing the applicant a protection visa (RD 131-159).
A summary of the Tribunal's findings are set out below:
· It accepted that the applicant was a national of the People's Republic of China, her identity, date and place of birth and that she was illiterate, did not have an education and had not read the bible (RD 153 [116]-[117]);
· The Tribunal also accepted that the applicant was assaulted in October 2008 and that she received medical attention after the assault (RD 153, [118]);
· Having considered the medical report provided by the applicant, the Tribunal did not accept that the applicant had any medical conditions which affected her ability to recall information or events (RD 153 [119]);
· The Tribunal also considered whether there was any impediment to the applicant participating in the hearing but, taking into account the applicant's "illiteracy, lack of education and nerves" was not satisfied that the applicant had any difficulty understanding the interpreter and that she was able to meaningfully participate in both Tribunal hearings (RD 153 [120]);
· The Tribunal did not accept that the applicant was a credible witness finding she had fabricated evidence to further her application and was unable to explain inconsistencies put to her (RD 153 [121]-[123]);
· The Tribunal was not satisfied that the delay of nearly eight months in lodging an application for a protection visa was due to the applicant's lack of knowledge and found that it would have been reasonable for a person with a genuine fear of persecution to have lodged an application for protection at the earliest opportunity (RD 158 [153]-[154]).
· The Tribunal accepted that the applicant had two children, had been fined as a result of this breach of China's family planning laws and that a number of actions had been taken against her and her husband. However, it did not accept that anything further had happened to her as a consequence or that she had been pursued by the family planning authorities as claimed, or that she had any unpaid fines outstanding. The Tribunal found the applicant's evidence regarding these issues to be inconsistent, contradictory and confused. It further found that the applicant would not be of any interest to the Chinese authorities should she return to China (RD 154-6[124]-[141]);
· The Tribunal found that the family planning laws were laws of general application and any harm suffered by the applicant as a result of those laws had not been discriminatory and was not persecution for the purposes of the s.91R(1)(c) of the Migration Act (RD 156-7 [142][143]);
· The Tribunal did not accept the applicant had been a practising Catholic in China. While the Tribunal took into account the applicant's illiteracy and lack of education, it did not accept that it was reasonable or consistent for someone who claimed to have practised as a Catholic since 2000 to have been unable to answer the questions put to her about her religion (RD 157-8 [151]-[152]). The Tribunal did not accept that the applicant had been baptised, that the baptismal certificate provided to the Tribunal was a genuine document, or that the applicant had escaped from a church raided by the police in China (RD [147]-[150]);
· The Tribunal accepted that the applicant had attended church activities in Australia but was not satisfied that the applicant had engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee. The Tribunal therefore disregarded this conduct in considering her claims (RD 158-9 [155]-[157];
· The Tribunal was not satisfied that the applicant had a well founded fear of persecution by reason of her religion or membership of a particular social group nor for any other Convention reason (RD 159 [159]-[160]).
As a consequence, the Tribunal did not accept the applicant is a person to whom Australia owes protection obligations.
The applicant relies upon her show cause application filed on 2 June 2009. That application contains two grounds. The first is an assertion that the Tribunal failed to consider the fact that the applicant’s capacity to participate in the Tribunal hearing was affected by her medical problems. The second is that the Tribunal incorrectly applied s.91R(3) of the Migration Act and failed to fully consider her church activities in Australia.
The parties were required to prepare written submissions prior to today’s hearing, but only the Minister did so. The applicant made oral submissions. She reiterated that she suffers from medical problems as a result of an assault and robbery. She confirmed that she is illiterate and came to Australia with no money and no work rights. She said that she sometimes forgets things and this adversely affected her before the Tribunal. She said that she is a genuine Christian. She said that she was confused and distressed at the Tribunal hearings. I took the applicant to paragraphs 119 and 120 of the Tribunal decision (RD 153). This was in the context of the applicant having told me that she had not read the Tribunal decision. When those paragraphs were read to the applicant, I invited her comments on them. She reasserted that she is a genuine Christian but otherwise said she had no objection to those passages.
The applicant has failed to establish any error by the Tribunal on the two grounds advanced. The Tribunal decision makes clear that the Tribunal was well aware of the applicant’s asserted medical problems and took them into account. I incorporate paragraphs 119 and 120 of the Tribunal decision in this judgment.
The Tribunal has considered a medical report provided by the applicant that stated she has soft tissue damage to her chest and back as a result of the robbery. Whilst she states that she has a heart problem, gets anxious, gets dizzy, forgetful and upset, the Tribunal is not satisfied on the evidence before it that the applicant has any medical conditions that affect her ability to recall information or events, that she had any injury to her head, that she has become depressed or that she has headaches and memory loss since the robbery. The Tribunal is not satisfied that she has had any health problems which affect her memory resulting from the robbery and assault.
In relation to the applicant’s capacity to meaningfully participate in the Tribunal hearing, the Tribunal had the opportunity to observe her giving evidence. The applicant did not claim that she suffered from any condition or symptoms whereby she could not partake meaningfully in the Tribunal hearings. Further, when she did not understand a question, she asked for the question to be repeated and she did not at any time suggest that she did not understand these further questions nor did she suggest she did not understand the interpreter or the Tribunal. A statement at the second hearing that she could sometimes not understand the interpreter at the first hearing was only made after the Tribunal asked her why she had stated at the second hearing that it was her illness that caused her to become a Christian and the Tribunal drew to her attention that she had said at the first hearing it was her husband’s illness that caused her to become a Christian and that the brothers and sisters at the church suggested she join the church. She said that the interpreter must have made a mistake. The Tribunal is not satisfied that she had any difficulty understanding the interpreter as she had not brought this to the attention of the Tribunal at the first hearing and she only raised it as an issue when the Tribunal put her inconsistent statements to her. The Tribunal has taken into account the applicant’s illiteracy, lack of education and her nerves. However, it is satisfied that the applicant was able to participate meaningfully in the Tribunal hearings.
I see no error in the Tribunal’s approach. Neither did the tribunal err in its application of s.91R(3) of the Migration Act. I incorporate in this judgment paragraphs 115 to 161 of the Tribunal decision (RD 158-159):
Conduct in Australia
Having regard to the evidence of the applicant in relation to her attendance at church and the letter from a church leader submitted to the Tribunal, the Tribunal accepts that the applicant has attended church and church activities at the Western Sydney Catholic Chinese community Church in Flemington.
The applicant claims that she has attended Catholic church gatherings in Sydney since two months after she arrived in Sydney and did so because she had attended the Catholic Church in China. She has also provided a statement from a church leader that she attended church in Sydney and undertaken church-related activities. She stated that she has learned information about Catholicism and the Pope between the first and second hearings. She has attended a church service when she had her photograph taken with some church leaders. She said that she went to church in Australia because she had gone to church in China, to thank God, that she wants to worship God so that in the future she can go to heaven and so she could have support because she does not have relatives in Australia.
As the Tribunal is not satisfied that she was a Catholic in China, the Tribunal is not satisfied that she has engaged in this conduct otherwise than for the purpose of strengthening her claim to be [a] refugee. Accordingly, the Tribunal is required to disregard this conduct in considering her claims (s.91R(3) of the Act).
Having not accepted the applicant’s claims to have participated in an underground Catholic church in China and to have suffered persecution at the hands of the Chinese authorities by reason of her participation and having disregarded, as the Tribunal must do, her conduct in Australia, there is nothing before the Tribunal that points to the applicant being a genuine Catholic who will practise as a Catholic in China. Consequently, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution, now or in the reasonably foreseeable future, because of her religion if she were to return to China.
The Tribunal does not accept that the applicant has a well-founded fear of being persecuted in China for the reasons that she claims. The Tribunal is not satisfied that there is a real chance that she will be persecuted for reasons of her religion or for her membership of a particular social group, namely persons who have been subject to family planning laws and who have unpaid fines for such breaches. The Tribunal is not satisfied that the applicant has suffered any Convention-related harm, or that there is a real chance of such harm occurring to her in the reasonably foreseeable future if she returns to her country.
On the evidence before it, the Tribunal does not accept that she cannot or will not return to China because she fears being persecuted there, now or in the reasonably foreseeable future, for any of the Convention grounds. The Tribunal does not accept that the applicant departed China for the reasons she has provided. The Tribunal does not accept that the applicant has suffered persecution or fears persecution in China for any other Convention reason.
For the above reasons the Tribunal is not satisfied, on all the evidence before it, that that applicant has a well-founded fear of being persecuted within the meaning of the Convention.
The Tribunal made relevant factual findings and took into account why the applicant had engaged in Christian practice in Australia. Being not satisfied that the applicant had engaged in that conduct otherwise than for the purpose of strengthening her claim to be a refugee, the Tribunal was obliged by s.91R(3) to disregard that conduct. I see no error in the Tribunal’s approach.
Noting that the applicant is not legally represented and is illiterate, I have myself considered whether the available material discloses any jurisdictional error. I have found none. I conclude that the Tribunal decision is a privative clause decision.
Accordingly, the application must be dismissed. I so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the amount of $3,800. The applicant did not wish to make any submissions on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 September 2009
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