SZNVC v Minister for Immigration
[2009] FMCA 1304
•21 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNVC v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1304 |
| MIGRATION – RRT decision – Chinese applicant claiming religious persecution as underground Christian – disbelieved by Tribunal – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth) |
| Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 |
| Applicant: | SZNVC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1905 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 21 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1905 of 2009
| SZNVC |
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 July 2008, travelling on an entertainment visa as part of a Chinese opera troupe. On 14 July 2008 she applied for a protection visa assisted by a migration agent, Priscilla Yu. The application contained a history upon which the applicant claimed to fear persecution if she returned to the Peoples Republic of China.
The applicant claimed that she had been deserted by her husband after having a second child in 2004. When her son became ill in late 2006, she was assisted by a doctor who introduced her to the “religious sect called as ‘The Local Church’ (aka ‘The Shouter’)”. She attended religious gatherings at the doctor’s clinic, and was baptised there in January 2007. In March 2007 she accepted the doctor’s suggestion that she should leave her family and travel to a different province to work for a member of the Local Church, who operated a local bookshop. She worked “as a nanny to assist him for doing some housework”. She said she attended meetings of the church in a room in his premises three days a week, and also assisted the bookseller to conduct three bible study groups with students at the local campus. She said “I played an important role in the development of these 3 bible study groups”. In particular, she delivered books and magazines to the students, and transported “more than 1500 copies of religious promotion materials; and over 3000 copies of the Recovery Version Bible” from her home province.
In April 2008, while she was in her home province, she was told by the doctor that three students had been arrested, and that the bookseller had arranged for the other members to go into hiding. The applicant stayed at her home, and continually received bad news “about those students who have been subjected to investigation”. The bookseller closed his business in June 2008, and “soon after that, I got my visa with helps of my friends”. After her arrival in Australia she learnt that the bookseller and more students had been arrested, and:
I have been regarded as one of the major assistant of (the bookseller) who has played an active role in establishing and developing the bible study groups in the campuses.
No corroboration of this history was ever provided to the Department of Immigration, nor to the Refugee Review Tribunal. However the applicant attended an interview by the delegate on 9 September 2008. The delegate made a decision on 12 September 2008, refusing a protection visa application.
The delegate said that he was not satisfied that the applicant was ever a member of the Local Church in China, nor that she had ever been involved in organising bible study groups, nor that she transported religious materials. The delegate found the story implausible, and the applicant appeared to show a lack of knowledge about her duties as a nanny. She gave inconsistent evidence about being baptized, and had little knowledge about how Local Churches were organised. The delegate thought that it was implausible that she had first started arranging to leave China in April 2008, and said:
Given the extent of the fraud involved in arranging for a large number of non-genuine persons being included in the Chinese Opera Troupe, I find it reasonable to conclude that the applicant commenced planning her trip to Australia some time earlier, the most likely time being around the time she acquired her passport in March 2007, or well before that time.
On appeal, the applicant attended a hearing of the Tribunal, which was adjourned to ensure an appropriate interpreter attended. At the adjourned hearing on 22 December 2008 the applicant was questioned very fully about her claims. A description of the hearing is contained in the Tribunal’s statement of reasons and I accept it. The applicant was given a sound recording of the hearing at the end of the hearing, but has not presented a transcript to the Court.
According to the Tribunal various concerns were put to the applicant in the course of the hearing, and they were also put to the applicant in a written invitation for comments. With the assistance of her migration agent, the applicant responded to these concerns in a five page “Statutory Declaration”.
The Tribunal made its decision on 12 July 2009 and affirmed the delegate’s decision. In a lengthy statement of reasons, the Tribunal carefully examined all the evidence, including the points made by the applicant in response to the written invitation to comment.
The Tribunal identified a series of matters in support of its finding that the applicant was not a truthful or credible witness. The Tribunal reminded itself that inconsistencies might have innocent reasons, and considered the applicant’s claims that at times in the hearings she had been nervous, under huge pressure or confused. However, the Tribunal identified inconsistencies which it thought could not be so explained, and it said that it was satisfied “that the inconsistencies are a result of the applicant’s attempts to manufacture claims of persecution where none has actually been suffered or is actually feared”.
The first point made by the Tribunal referred to evidence given by the applicant when the Tribunal attempted to extract details of how the applicant had transported bibles and other religious materials. The applicant said that she did this by transporting seafood boxes with bibles hidden in them. Based upon her evidence, the Tribunal calculated that the numbers of bibles thus transported were far less than the 3000 referred to in the visa application, and also appeared excessive for the numbers of participants in the bible study groups. The Tribunal said:
The Tribunal does not accept the applicant’s explanation of confusion and being under a “huge pressure” for the inconsistencies regarding the number of Bibles she transported from Fujian to Jiangxi Province. The Tribunal found the applicant experienced no difficulty informing the Tribunal at the second hearing that she successfully transported more that 1,500 copies of religious promotion materials and over 3,000 copies of the Recovery Version Bible from [her home province] to [another province] and had no difficulty informing the Tribunal that she made about 10 trips from [her home province] to [the other province]. However, the Tribunal found the applicant experienced some difficulty when the Tribunal asked more detailed questions about the number of boxes she carried and the number of Bibles she carried in each box. The Tribunal is not satisfied with the applicant’s response that the inconsistencies could be explained by confusion and a “huge pressure”, and is of the view the applicant has been untruthful in her claim that she transported Bibles from [her home province] to [the other province]. Considered alongside the other inconsistencies outlined below, it casts doubt on the credibility of all her claims.
The Tribunal identified clear inconsistencies in the applicant’s evidence about when she attended Local Church meetings when staying with the bookseller. The Tribunal did not accept the applicant’s explanations for this, and it said:
The Tribunal finds the reasons for the inconsistencies regarding her attendances at these gatherings in China was because she did not attend gatherings of the Local Church in China.
The Tribunal then referred to some other inconsistencies in her evidence including when she was baptised, whether she had previously attained a passport, and her schooling. The Tribunal concluded from all these points that the applicant had been “untruthful in her claims and is not a credible witness” and said that this cast doubt on her claim that she was a member of the Local Church.
The Tribunal then examined the applicant’s evidence about her Church activities. It thought that in relation to some matters she did not recount events at Local Church meetings which were consistent with independent information, in particular about “pray-reading”. The Tribunal said:
Considering the applicant’s limited knowledge about meetings of the Local Church, her description of her involvement in the Local Church, her limited knowledge of the Bible, although she said she read a section of the Bible every night, and her other evidence as discussed above, the Tribunal does not accept that the applicant is a member of the Local Church, even though she demonstrated some knowledge about the history of the Local Church. The Tribunal finds that the applicant’s description of her involvement in the Local Church does not support the independent country information, and when combined with the inconsistencies, the Tribunal finds the applicant is not a member of the Local Church and she would not suffer serious harm if she was to return to China.
The Tribunal then addressed aspects of the applicant’s history which she had not put forward as separate reasons for fearing persecution. However, the Tribunal thoroughly considered her situation as a member of a social group of single mothers or single mothers with two children. It noted that there had been no claims by the applicant of discriminatory treatment in relation to the one child policy.
The Tribunal considered the applicant’s claim that she would be unable to obtain a proper job in China upon return, and thought that this would not occur for a Convention reason.
The Tribunal also considered the applicant’s claims to have attended a Local Church in Sydney, but it said:
Having regard to the applicant’s overall lack of credibility and the Tribunal’s findings that she was not a member of the Local Church in China, the Tribunal is of the view that the purpose of her conduct in Australia was designed to assist her in her endeavour to remain in Australia by strengthening her case for a protection visa. The Tribunal is not satisfied that the applicant’s conduct in Australia has been otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Convention. Accordingly, the Tribunal must disregard the conduct engaged in by the applicant in Australia pursuant to s.91R(3) of the Act.
The Tribunal said that it gave “cumulative consideration” of the applicant’s claims but, for the reasons given previously, it did not accept any of the particulars of the applicant’s history of involvement in the Local Church in China, and it was not satisfied that she was a person to whom Australia owed protection obligations under the Refugees Convention.
The applicant now applies to the Court to set aside the Tribunal’s decision and to remit the matter. I have power to make these orders only if the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether she is entitled to a protection visa or any other permission to stay in Australia.
The applicant has presented an argument in her original application, and has not filed any further amended application or written submissions. The grounds in her application commence with the assertion:
I have never accepted the tribunal’s decisions; and I strongly believe that the Tribunal’s decision has included apprehensive bias.
The subsequent 12 paragraphs are largely a cut and paste from the applicant’s “Statutory Declaration” given to the Tribunal with some modifications. In effect, the Court is invited to reconsider the applicant’s explanations for the various concerns which were put to her, to assess the merits of those matters, and to decide that the Tribunal’s failure to accept those explanations reveals that it decided the matter with a closed mind.
However, I can find no evidence supporting such a contention. As I have indicated, the Tribunal’s ultimate decision carefully considered all the matters now put again to the Court, including the contents of the applicant’s ‘statutory declaration’. The fact that the Tribunal considered those matters, and was not persuaded by the applicant’s evidence, does not show that it had pre-determined the matter, nor that it closed its mind to a proper consideration of the applicant’s evidence prior to it arriving at its final decision.
I can find no evidence in this case upon which an informed lay observer might form an apprehension that the Tribunal might have prematurely closed its mind to the merits of the applicant’s evidence and arguments. The principles of apprehended bias identified by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 are therefore not satisfied.
The applicant today read a submission in Chinese to the Court which essentially repeated the contentions expressed and implicit in the grounds of the application. In particular, she submitted that the Tribunal should not have relied on one piece of contrary information about the Local Church, and that it had failed to consider the applicant’s claim that the difficulties in her evidence had innocent explanations.
However, these were points considered by the Tribunal, and I am not satisfied that they give rise to any jurisdictional error. They only invite the Court itself to decide the merits of her refugee claims. But this is not its function.
In my opinion, the Tribunal’s reasoning was clearly open to it on the material before it, and it has presented clearly rational and reasonable reasons for disbelieving the applicant. I am, therefore, unable to find jurisdictional error affecting this decision of the Tribunal, and I must dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 20 January 2010
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