SZNTA v Minister for Immigration - [2009] FMCA 1226

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1226

MIGRATION – RRT decision – Chinese applicant claiming religious persecution as Catholic – disbelieved by Tribunal – no jurisdictional error established – application dismissed.

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

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425
SZMDS v Minister for Immigration & Citizenship [2009] FCA 210

Applicant:

SZNTA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1658 of 2009

Judgment of:

Smith FM

Hearing date:

27 November 2009

Delivered at:

Sydney

Delivered on:

27 November 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Pinder

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1658 of 2009

SZNTA

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 on a student guardian visa in relation to a son, who was studying in Australia. On 2 December 2008, she applied for a protection visa, assisted by a person who may have been a migration agent. A statement attached to the application explained the history upon which she claimed to fear persecution if she returned to the People’s Republic of China.
She referred to living in a farming family, and having been forced during the 1990s to have three abortions pursuant to the Chinese family planning policies. She described persecution of herself and members of her family when she had a second child in 1996. She also claimed that she had often attended a Catholic church, and that her “whole family” believed in the Catholic Church. She said that she had been arrested and interrogated many times, and implied that the travel of herself and her son overseas was part of a plan to escape from further persecution. She presented some documents concerning the birth of her children and fines for having a second child.
The applicant attended an interview with the delegate on 11 February 2009. She gave some more details about her claims, and identified two occasions on which she said she had been arrested and interrogated because of her religion, being in September 2005 and November 2006.
The delegate made a decision on 12 February 2009, refusing the protection visa application. The delegate accepted that the applicant had been forced to undergo abortions, but thought that there was nothing to suggest that she faced “ongoing punitive action on account of the incidents in the 1990s”. The delegate also thought that there was nothing to point to the family planning laws being applied differentially to her, so as to make her persecution Convention related.
In relation to her religious claims, the delegate formed the view from her responses to questions, that she was not a genuine follower of Catholicism. The applicant subsequently claimed that she had faced difficulties when answering the delegate’s questions about her religion, due to her not having an interpreter in her native dialect.
The applicant was assisted by a new migration agent, Pricilla International Co. Pty Ltd, to bring an appeal to the Refugee Review Tribunal. She presented several statements of herself and of Australian witnesses, who verified that she had attended Roman Catholic congregations since October 2008 and was preparing herself for baptism. The applicant also presented a number of photographs, showing her involvement in Catholic congregations in Sydney, and three photographs purporting to show her in front of an altar in China.
The applicant attended a hearing of the Tribunal on 15 May 2009, accompanied by a priest who verified her recent involvement in his church. She was given the recordings of the hearing, but has not presented a transcript to the Court. The only evidence as to what happened is found in the Tribunal’s description of the hearing in its statement of reasons. I have no reason not to accept that description as accurate.
The Tribunal discussed with the applicant her evidence about her involvement with the Catholic Church in China and Australia and the photographs she had presented. The applicant said that she had obtained her passport in China in May 2007, and had not had any problems departing China. She claimed to have attended a church in Flemington about two weeks after she had arrived in Australia, and referred to a person who had taken her there. However, the statement of that person subsequently given to the Tribunal referred only to meeting the applicant in October 2008.
The Tribunal explained to the applicant the concerns which ultimately informed its reasons for decision. It also explained to her the effects of s.91R(3) of the Migration Act 1958 (Cth), by which the Tribunal was obliged to disregard her conduct in Australia, if it was not satisfied that it was engaged in otherwise than for the purpose of strengthening her claim to be a refugee.
The Tribunal made a decision on 15 June 2009, affirming the delegate’s decision. After setting out the evidence, the Tribunal made “Findings and Reasons” in which it said that it had not found the applicant to be credible on some “key aspects of her claims”, and was not satisfied that she had left China because of a fear of persecution.
The Tribunal did accept that she had suffered problems in relation to the one‑child policy, and that her family members had also been punished. However, the applicant had disclaimed reliance upon those circumstances as the basis for her current fears of persecution in China.
In relation to her religious claims, the Tribunal pointed to a number of matters which caused it to conclude that she had not been a practising Catholic in China, and had not been subject to any persecution there as she had claimed. The Tribunal’s reasoning was largely based upon matters of chronology which was essentially uncontested.
Thus, the Tribunal thought that the applicant’s evidence that she had joined the underground Catholic Church in 1998, but was never baptised over the subsequent 10 years could not be accepted. It said:
The Tribunal is of the view that had the applicant been involved with the Catholic Church for a period of 10 years, as claimed, she would have been baptized, given the significance of baptism for Catholic believers.
The Tribunal then identified the delay between the applicant arriving in Australia in February 2008 and before she applied for a protection visa in December 2008. It thought that the delay was significant, even if it accepted, as she claimed, that she had given instructions to an agent in September 2008 to prepare a protection visa application. Based on this chronology:
The Tribunal is of the view that the applicant lodged a protection visa application, not because of persecution fears in China, but because her guardian visa had expired.
The Tribunal referred to the applicant’s delay in departing China before February 2008, in circumstances where she claimed to have suffered persecution in November 2006, and had obtained a passport in May 2007. It said that it was not satisfied that she had had any problems about the issue of the passport, and found that “the applicant chose to travel to Australia because her son was coming to Australia to study and not because of persecution fears”.
The Tribunal referred to evidence suggesting that the applicant had not attended a Catholic church in Sydney until October 2008. The Tribunal did not accept the applicant’s assertion that she had attended any church prior to that time. All the independent evidence, including photographic, showed her commencing an involvement in Catholic congregations at the end of 2008.
The Tribunal referred to the three photographs which the applicant claimed shows her and members of her family in front of an altar in China. It had discussed these photographs with the applicant at the hearing, and had doubts whether the female in the photographs was the applicant. The Tribunal retained those doubts, and said that it was “not satisfied that the photos provided depicted the applicant attending Catholic gatherings in China”.
The Tribunal considered the significance of the applicant’s participation in Catholic activities in Australia since October 2008, and said that it was not satisfied that the applicant had participated in them “otherwise than for the purposes of strengthening her claims”. Therefore, it said those activities “must be disregarded by the Tribunal”.
For all those reasons, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm for reasons of her being a Catholic if she returned to China.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s original application has the following three grounds:
1.The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
2.The Tribunal failed to consider my claims properly and fairly.
3.The Tribunal’s decision has included a reasonable apprehension of bias.
The first ground has not been explained by any amended application, or written or oral submissions. The Minister’s solicitor speculated in his written submission on possible arguments, in particular, in relation to the evidence taken by the Tribunal from the priest. However, it appears to me that all the evidence relied upon by the Tribunal was evidence given by the applicant for the purposes of the review proceeding. It was therefore excluded from the operation of s.424A(1) by s.424A(3)(b)). The Tribunal’s thought processes and reasoning in relation to the evidence were not ‘information’ requiring an invitation for written comment under s.424A(1).
Moreover, the evidence of the priest did not form or provide a reason for the Tribunal to affirm the delegate’s decision, since it confirmed the evidence of the applicant which the Tribunal accepted as to her activities and her involvement in his church. Her involvement in those activities did not provide the reason for the Tribunal affirming the delegate’s decision, and, as the Tribunal in my opinion correctly decided, it was obliged to disregard those activities under s.91R(3).
The applicant’s second and third grounds have been explained by the applicant in a written submission filed in the Court, and its arguments were repeated today by the applicant. Her submissions treat the two grounds as inter‑related, because her arguments in support of establishing that the Tribunal had pre‑determined the matter, so as to give rise to a reasonable apprehension of bias, are all directed at drawing an inference of this from irrational or unreasonable reasoning by the Tribunal in its decision.
There are obvious difficulties with these arguments, since the Tribunal had a duty to arrive at findings of fact, and its adverse findings, even if incorrect on their merits, do not necessarily suggest pre‑determination. Although irrational or unsupported reasons for decision might in some cases confirm or lend support to a concern about pre‑determination or bias raised by other concerns, where concerns arise from how a Tribunal has conducted a hearing or some other procedure before decision, even this is generally a difficult contention to establish (see NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264).
In the present case, the applicant has not tendered a transcript or other evidence showing anything occurring before the Tribunal published its decision which might give rise to a reasonable apprehension of bias on the principles identified in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425. I am also far from satisfied that the various factual points made in the applicant’s submissions establish any irrationality or unreasonableness in the Tribunal’s factual assessment of the case in its published decision. Certainly, in my opinion its process of reasoning lends no support to the contention that it prematurely closed its mind to the merits of the applicant’s case before making its decision.
The applicant’s submissions directed themselves at each of the points made by the Tribunal in support of its general conclusion about the credibility of the applicant’s religious claims. They argue that the Tribunal had made a “prejudicial and unfair” assumption that a person who had been involved in the Catholic Church for 10 years would have been baptised. However, in my opinion there was nothing shown to be irrational in that assumption of the Tribunal in the circumstances of the applicant’s claimed involvement in her church. The Tribunal did consider the applicant’s explanations for delaying her baptism, and I do not consider that the argument presented to the Court establishes anything more than that the Tribunal’s reasoning is debatable in relation to its merits.
The applicant’s next argument is that the Tribunal’s reasoning, based on the delay in making a protection visa application until after the expiry of the student guardian visa, was incorrect because that visa had expired at the end of July 2008, and the protection visa was not lodged until December 2008. However, this point does not at all undermine the factual merits of the Tribunal’s reasoning, and certainly does not reveal any irrationality in relation to this element of the Tribunal’s findings on credibility. I consider that it was open and rational to the Tribunal to form the view that the applicant came to Australia to support her son, and then subsequently sought to protract her residence by fabricating claims for a protection visa.
The applicant’s next argument attacks the Tribunal’s rejection of her claims to have been detained in China. It suggests that the Tribunal did so for the sole reason that she obtained a passport soon after the last detention. Although the Tribunal did refer to that fact, I consider that other matters also informed the Tribunal’s conclusion as to the reasons why the applicant, in fact, chose to travel to Australia. Its conclusion about her travel was, in my opinion, open to the Tribunal and was rationally connected by the Tribunal to its rejection of her claims to have been persecuted.
The applicant’s arguments then attacked the Tribunal’s reference to the absence of evidence corroborating her claim to have attended church soon after she arrived in Australia and before October 2008. They criticise the Tribunal for not accepting the applicant’s assertions, and also argue that the Tribunal should have accepted that she was a genuine Catholic because she had, on its own findings, attended church before the protection visa application was lodged. It is also obliquely suggested that the Tribunal mis‑applied s.91R(3), because it disregarded evidence of activities occurring in Australia before the lodging of the protection visa application. However, I do not accept any of these arguments.
Section 91R(3) requires the Tribunal to assess the purposes of any activities in Australia, whether occurring before or after the protection visa application was lodged, and should be construed as referring to activities “for the purpose of strengthening the person’s claim” in relation to future claims as well as past claims.
On the chronology of events in Australia found by the Tribunal, it was well open to the Tribunal to consider whether in October 2008 the applicant had commenced involvement in Catholic activities with the object of enhancing a future claim for protection, particularly based on her own evidence that she had obtained immigration advice about making such a claim in September 2008. The Tribunal was not obliged to find otherwise by reason of the fact that the protection visa application was lodged in December 2008.
The applicant’s last argument criticised the Tribunal for not being satisfied that photographs presented by the applicant showed her and not another person. It is difficult for me to assess the merits of the Tribunal’s reasoning in this respect, since the copy of the photographs at page 93 of the Court Book is very poorly reproduced. However, in my opinion, essentially the applicant’s argument merely quarrels with the merits of the Tribunal’s assessment of evidence. In my opinion, it was open to the Tribunal to form its own judgment whether the photographs did depict the matters that the applicant claimed, and I am not persuaded that it was not open to the Tribunal not to be satisfied by the applicant’s claims as to what the photographs showed.
For the above reasons, in my opinion, the applicant’s criticisms of the Tribunal’s reasons individually and collectively fall far short from revealing any irrationality or unreasonableness which could establish jurisdictional error, whether directly under principles referred to by Moore J in SZMDS v Minister for Immigration & Citizenship [2009] FCA 210 (in relation to which, the High Court has reserved judgment), or indirectly through principles of apprehended bias.
I therefore am not satisfied that any of the grounds of jurisdictional error presented by the applicant have been made out. The Tribunal’s decision is therefore a privative clause decision, and I must dismiss the application.

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

Associate: Lilian Khaw

Date: 18 December 2009