SZNTS v Minister for Immigration
[2009] FMCA 975
•15 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNTS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 975 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.424AA |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 |
| Applicant: | SZNTS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1753 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1753 of 2009
| SZNTS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal made on 1 July 2009, affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia on 16 April 2009 and was detained on arrival, his visa being cancelled. He applied for a protection visa in May 2009. He attended an interview with the delegate. His application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
The applicant’s claims, as presented to the Tribunal, were that he feared persecution in China for a number of reasons which the Tribunal found were based on the Refugees Convention grounds of religion, political opinion (actual or implied), and membership of a particular social group. He claimed that he would be harmed in China because he owed debts, had exited illegally and was a Catholic. He referred to the fact that he and his family had been members of the underground Catholic church and that when he was a child they used to hide from the authorities. He claimed that he would suffer discrimination because he was a Catholic.
The applicant’s main claim related to his claim that he operated a business that supplied goods to a supermarket that went bankrupt, leaving him with large debts and that, after participating in a protest outside government offices to complain that the authorities would not honour an agreement to act as guarantor and that officials had embezzled money from the supermarket, he was arrested and detained for over two months during which time he was interrogated, beaten and tortured. He claimed that the authorities found out he was an underground Catholic, that he and his family were threatened, that he had to sign a guarantee not to complain to the government, pay a large sum of money and report when required.
The applicant also claimed that he was in serious debt (in particular as a result of the bankruptcy), could not repay his debts and that debt collectors with criminal connections had threatened him and his family. After his release from detention he had moved to another part of China where his parents lived, but claimed that he could not financially survive there. He claimed he had been twice refused visas to come to Australia where he had relatives, before he travelled to Australia using a false passport and visa.
In its findings and reasons the Tribunal observed that in giving reasons for leaving China, the applicant had entwined his Catholicism with the story about his arrest at a protest and subsequent detention and torture. It accepted that he was a Catholic, but did not accept that he had been involved in a protest, arrested or detained, or that he had suffered any threats or harm because of his religion in China.
In relation to the applicant’s Catholicism the Tribunal accepted that he followed the Roman Catholic religion, but found that his evidence showed him to be an ordinary church goer with some interest in and involvement with unregistered Catholic churches in China, but that he was not a religious or church leader and that his involvement had been limited to attending gatherings when he could.
The Tribunal observed that the applicant did not claim to have any other involvement with the Catholic religion in China, despite having the opportunity to do so and that at the conclusion of the Tribunal hearing he had stated that he had not been persecuted because of his religion. The Tribunal concluded that the applicant may be described as having a low profile as a Roman Catholic church member in China.
The Tribunal assessed the applicant’s claims on the basis that he would return to his home area in China, although it also considered the possibility that he would return to another place where he had lived. It found that his claim centred on the story about his arrest at a protest and what occurred thereafter, but rejected the story for a number of reasons.
The Tribunal had regard to the fact that when the applicant entered Australia and a tampered passport was discovered, he had been interviewed on two occasions at the airport. The Tribunal accepted the evidence of the contemporaneous detailed notes of those interviews made by officers, which it had raised and discussed with the applicant in the course of the Tribunal hearing pursuant to s.424AA of the Migration Act 1958 (Cth). It referred to the fact that at the first interview the applicant had initially implied that he used a false passport because he could not get an Australian visa due to Australia’s discrimination against people from Fujian Province. After a break, he stated he wished to tell the truth and described in some detail how his business had suffered losses and people were chasing him for money and said that he intended to work in Australia to pay his debts.
The Tribunal recorded that the applicant’s claims at that interview did not include any claim of an earlier protest, arrest or detention, or any claim of adverse interest from the Chinese authorities and that he did not link his debts in any way to the authorities or claim to have a fear of them for any reason.
Further, the Tribunal had regard to the fact that, at the second interview, after the applicant’s visa on which he came to Australia had been cancelled, he gave greater details about the collapse of his business and when asked if he had any reasons for not wishing to return to his country of nationality he referred to the fact that he owed money and could not pay his debts and that the people he owed money to came to his home every day, and that he then indicated, “[t]hat’s about it.”
The Tribunal recorded that at the hearing it had discussed the interview reports with the applicant and the fact that he had not raised issues other than the debt that he had accrued. It considered his explanation that he was tired, nervous, ignorant of the law, intimidated or unwilling to speak of being detained in China. However it found that this explanation did not explain why he failed to make any mention of the events he later said led him to leave China or any claim to have a fear of the Chinese authorities.
The Tribunal had regard to the fact that the applicant had shown in these interviews that he knew he had to ask to apply for a protection visa and so did not accept that he was merely unwilling or forgot to outline his most significant claim. It also referred to the fact that at the first interview he said he wanted to tell the truth and discussed his business failure in some detail, but that he made no mention of arrest, detention, torture or threats concerning his Catholicism, or of any concern about returning to China because of the Chinese authorities or his religion. The Tribunal rejected the applicant’s explanations for failing to mention these circumstances which he later claimed were central to his reasons for fleeing China and fear of returning.
On this basis the Tribunal concluded that the applicant had fabricated the story concerning protest, arrest and detention and the claims that followed from that episode. It accepted that the applicant may have business and other debts in China, but concluded that his motivation in departing from China was to work and make money in Australia. It did not accept the applicant’s claims that the government was involved in the business failure, or that he was arrested at a protest, detained, tortured or threatened. Nor did it accept his claims that he was suicidal because of this, that he had to sign a waiver, pay a bribe for release or report to authorities and that he left his home city because of a fear of the Chinese authorities or to avoid reporting. Rather it found that his attempts to come to Australia were motivated by his desire to work in Australia. The Tribunal stated that it could find no nexus between a failed business and/or business debts and a Convention ground.
As the Tribunal accepted the applicant’s claim that he was a low profile Roman Catholic church member, it then considered whether the applicant had a fear of persecution based on his religion. Having regard to country information, the applicant’s low profile, and the absence of any claim that he had come to the attention of the authorities in his home area in the past for reasons including his religious practice and family background, the Tribunal was not satisfied that he had a well-founded fear of persecution should he return to China on the basis of his religion.
In reaching this conclusion, the Tribunal referred to the fact that it did not accept that the applicant had been threatened by the authorities in his home area because of his religious beliefs, or that this was an incident that the local authorities may in time become informed about. The Tribunal had regard not only to the applicant’s low profile in his home town but also to the apparent low profile of other family members. It did not accept that there was any link between his stated debts and his religion which would cause him to be singled out for different treatment by the authorities.
The Tribunal addressed the applicant’s claim at hearing that he feared coming to the authorities’ attention should he return because he had entered Australia on a false passport. It acknowledged that this may occur, but found that any penalty for the use of a false passport would be the result of the non-discriminatory enforcement of a law of general application and would not constitute persecution for a Convention reason.
The Tribunal also considered whether, if the applicant did come to the authorities’ attention on his return, a failed protection visa application and/or his religion would cause him to face serious harm. While it found that independent country information indicated that it was not possible to comment definitively on how China’s authorities would treat returnees who were failed asylum seekers, it found nothing in the applicant’s circumstances to suggest that he would face serious harm on his return. It had regard to the fact that he was a small businessman and not a government employee, that it had rejected his story concerning arrest and detention, that it did not accept that there was any link between his debts and the government or that he had any political profile and to the fact that he had a low profile as a practising Catholic and had not developed a profile in Australia.
In light of the applicant’s personal circumstances, background and low profile the Tribunal did not accept that he would suffer persecution for reasons of perceived membership of a particular social group such as ‘failed asylum seekers’ or for his imputed political opinion and/or for reasons of his religion or for those reasons cumulatively.
For the sake of completeness, the Tribunal considered whether the applicant could return to the city where his parents and other family resided and where he had lived and apparently worked in the past. In light of country information about that area, the absence of claims of any adverse attention of the authorities in the past and the fact that his family were said to practise freely as underground Roman Catholics there, the Tribunal found that the applicant could practise his religion in the way he wanted in that city and that there was no real chance he would face persecution there.
In conclusion, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future if he returned to China.
The applicant sought review by application filed in this court on 22 July 2009. There are three grounds in the application. The first is that the Tribunal member rejected his “true story” as a fabrication. As set out above, the Tribunal did not reject all aspects of the applicant’s story as a fabrication. It accepted that he was a Roman Catholic with an involvement in underground churches in China and also accepted that he may have serious debts in China, but found that he had fabricated particular claims concerning a protest, arrest, detention, torture and threats in his home town for the purpose of claiming refugee status.
Contrary to the applicant’s contention in oral submissions, the Tribunal did not simply dismiss what he had to say. Rather, as set out above, it gave detailed reasons for its conclusion including, in particular, the failure of the applicant to mention any aspect of such claims at the two interviews conducted when he arrived in Australia. The Tribunal also had regard to the applicant’s explanations for his failure to mention such claims when these issues were raised with him. However, for reasons which it gave, it did not accept that he was merely unwilling or forgot to outline such significant claims. It rejected his explanations for failing to mention circumstances which he later claimed were central to his reasons for leaving China and fear of returning.
The Tribunal’s findings were open to it for the reasons which it gave on the material before it. Insofar as the Tribunal rejected the applicant’s credibility in relation to the central aspects of his claim, credibility is a matter for the Tribunal. Notwithstanding that the applicant took issue with the Tribunal’s findings of fact in this respect, findings of fact are a matter for the Tribunal and, of themselves, do not establish jurisdictional error. The court cannot review the merits of the Tribunal’s decision and no jurisdictional error arises from the mere fact of the Tribunal making a wrong finding of fact (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 and Abebe v The Commonwealth of Australia (1999) 197 CLR 510).
The second ground in the application for review is that the Tribunal member wrongly denied the link between the applicant’s debts and the Chinese government. Insofar as the applicant seeks merits review, merits review is not available in this court. As indicated, the Tribunal accepted that the applicant had debts but did not accept that he had a fear of persecution from the government because it rejected as a fabrication his particular claims about participation in a protest, arrest and the claimed consequences. As discussed in relation to ground one, no jurisdictional error has been established in the Tribunal’s approach or in its consideration of these issues and its findings in that respect.
The third ground is that the Tribunal underestimated the high degree of possibility of the applicant being “chased and even killed” by his creditors due to the “huge debts” he owed. However the Tribunal accepted that the applicant may have debts, both business and otherwise, but, having rejected his claims about the central aspect of the protest, detention and the consequences thereof, it could find no nexus between a failed business and/or business debts and a Convention ground. This finding did not deny or underestimate the possibility that the applicant may be pursued by creditors, but rather was a finding that there was no nexus between such claims and one of the grounds in the Refugees Convention.
There is nothing in the Tribunal’s account of the applicant’s claims or of the Tribunal hearing to suggest that the applicant raised a claim with the Tribunal or that a claim arose on the material before the Tribunal, that the applicant’s creditors wished to harm him for any Convention reason, given that the Tribunal had rejected the applicant’s claims in relation to his protest, arrest and detention and consequently the nexus between his stated debts and the government authorities.
In oral submissions the applicant reiterated aspects of the claims in his application, which I have addressed. He also claimed that because of his religion as a Catholic he would be punished severely if he returned to China. Insofar as this is intended to claim that the Tribunal failed to consider this aspect of the applicant’s claims, the Tribunal not only accepted that he was a Catholic, but also (based in part on his evidence about his past practice as a low-profile person and the absence of any past persecution, as well as country information) found that there was no real chance that he would suffer harm by reason of his religion should he return to China.
The Tribunal did not accept that there was any link between the applicant’s debts and his religion which would cause him to be singled out for differential treatment by the authorities should he return to China. It has not been established that the Tribunal failed to consider the applicant’s claims in this respect.
In concluding submissions the applicant attempted to provide a further explanation for why he had failed to mention his claims about the protest and detention and his fear of persecution at the original airport interview. As I endeavoured to explain to the applicant, merits review is not available in this court. Insofar as he explained that it would be humiliating for people in China to mention that they had been to gaol, the Tribunal recorded that at the Tribunal hearing it raised these matters with the applicant and gave him an opportunity to provide an explanation for his failure to mention these concerns at his initial interviews. One of the explanations he provided was that no Chinese person would tell you at the first meeting that they had been gaoled in China.
In its findings and reasons as set out above, the Tribunal considered the applicant’s explanations for his failure to raise the central issue at his initial two interviews, including his claim that he was unwilling to speak of being detained in China. However it found that his explanation did not explain why he had failed to make any mention of the events he later said led him to leave China, or of any claim to fear the Chinese authorities. The Tribunal did not accept that he was merely unwilling or forgot to outline his most significant claim. The Tribunal considered but rejected his explanations in this respect and no jurisdictional error has been established in the manner in which it proceeded.
The applicant also sought to provide an explanation for his claim that his indebtedness and the government authorities were linked. As indicated the Tribunal considered this claim but rejected the central claim about arrest and detention and found no nexus between a failed business or business debts and a Convention ground.
The applicant also claimed that perhaps if he was sent back to China the fact that he was a Catholic would add to his punishment. Again this was an issue considered by the Tribunal in relation to the applicant’s claims to fear persecution in the future on the basis of his religion alone or in conjunction with other aspects of his claims.
Finally, the applicant took issue with the fact that the Tribunal had not believed him at the hearing, notwithstanding that he had taken an oath. However as set out above, credibility is a matter for the Tribunal. The fact that an applicant has taken an oath at a Tribunal hearing is not such as to compel the Tribunal to accept the applicant’s evidence. More generally, insofar as the applicant takes issue with the Tribunal’s findings in relation to his credibility and its failure to accept aspects of his claims, no jurisdictional error has been established in that respect and this court cannot review the merits of the Tribunal decision. As no jurisdictional error has been established, the application must be dismissed.
RECORDED: NOT TRANSCRIBED
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 first respondent. The first respondent seeks costs in the sum of $5,865, which is the amount provided for in the Federal Magistrates Court Rules as an amount which the court may determine is appropriate. However having regard to the nature of this and other similar matters, the involvement of counsel in this matter and in particular to the fact that there were only three general and unparticularised grounds in the application, no amended application and no written submissions from the applicant who was self represented, I consider that an appropriate amount of costs, doing the best I can on the material before me, is the sum of $5,000.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6 October 2009
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