SZOAZ v Minister for Immigration

[2010] FMCA 160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOAZ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 160

MIGRATION – Review of RRT decision – applicant a citizen of China claiming protection on religious grounds – where applicant had been imprisoned for evangelising school children in the classroom and had paid a bribe for her release – whether Tribunal correctly applied the law in determining the reason for the extortion – where Tribunal made a separate finding that applicant did not have a well founded fear of persecution partly because she had remained in China for 3 years after her imprisonment without incident – whether Tribunal ought to have informed applicant that the reason for the extortion was in issue.

Migration Act 1958 (Cth), ss.91R(1)(a), 425

Selvadurai v Minister for Immigration (1994) 34 ALD 347
Sarrazola v Minister for Immigration [1999] FCA 101
Minister for Immigration v Sarrazola (1999) 95 FCR 517
Perampalam v Minister for Immigration (1999) 84 FCR 274
Okere v Minister for Immigration (1998) 87 FCR 112
Paramananthan v Minister for Immigration (1998) 94 FCR 28
Rajaratnam v Minister for Immigration (2000) 62 ALD 73
Duzdiker v Minister for Immigration [2000] FCA 391
Irfran Yaqub v Minister for Immigration [1998] FCA 1539
Ramirez v Minister for Immigration (2000) 176 ALR 514
SZDJQ & SZDJR v Minister for Immigration [2006] FCA 533
SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: SZOAZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2919 of 2009

Judgment of: Raphael FM

Hearing date: 8 March 2010

Date of Last Submission: 8 March 2010

Delivered at: Sydney

Delivered on: 11 March 2010

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Kah Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2919 of 2009

SZOAZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 13 September 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 20 April 2009. On 15 July 2009 a delegate of the Minister refused to grant a protection visa and on 7 August 2009 the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 9 October 2009. At that hearing certain information was provided to the applicant which she informed the Tribunal she wished to have time to consider and respond to. A further hearing was scheduled for 26 October 2009 and attended by the applicant. On 3 November 2009 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 4 November.

2. The Convention ground upon which the applicant claimed she was a person to whom Australia owed protection obligations was that of religion. The applicant claims she is a Christian. She told that her introduction to the religion came about as a result of the domestic situation that she found herself in by 2003 when she (a primary school teacher) was first introduced to the religion by a fellow teacher. In the previous two years the property in which she was living with her husband and his family had been partially appropriated for a new road. Her husband had objected to the fact that his neighbour opposite, a member of the Communist Party whose house was also scheduled for demolition, had not been affected. The husband’s protest caused him to be considered a trouble maker by the PSB. In 2002 he left the family and, apparently, China. The applicant was naturally depressed and lonely without him. She was introduced to Christianity in July 2003 and began working as a teacher at a primary school in September. On 20 October 2003 she was baptised and joined an underground church. On 4 September 2004 the police broke into her home and arrested her for evangelising at the school. She was accused of telling bible stories to children. The applicant claimed that upon her arrest she was detained for approximately two months and held in a dark and stinking cell with other women, some of whom were made to undertake late term abortions. She was questioned and detained until 31 October 2004 when her family and church brothers and sisters collected money to bribe the police to release her. Upon her release she was dismissed from the school and was unable to obtain any further work in the education field. The applicant remained in China until 2007. She was unemployed but worked for the church running a bible study group for children. In September 2007 she obtained a visa to accompany her son to Australia as a student.

3. The applicant attended an interview with the delegate on 14 July 2009. The delegate did not accept that the applicant was a genuine Christian and the delegate’s reasons, see [CB 68-71], had the effect of putting in issue before the Tribunal most of the claims made in her PVA. The applicant was therefore required to, and did, give evidence at the hearing about her adherence to Christianity and the factual circumstances of her arrest, detention and dismissal. At the end of the first hearing the Tribunal put to the applicant certain information concerning her husband who she originally said she had not seen or heard of since he left China in 2002. The husband appeared at the second hearing claiming that he had been in Australia since 2002 and that he had just re-found his wife, the applicant. The Tribunal considered the applicant and her husband’s reasons for not previously revealing his existence to the Tribunal and the evidence given by the husband and the applicant’s son in support of her claims.

4. The Tribunal accepted much of what the applicant had told it. It accepted that her husband had left in 2002 for the reasons given and that, as a result, she had been drawn to Christianity. It accepted that there was a period of about 16 months when she did not participate in Christian activities from September 2004, after being released from detention, until the end of 2005. It also accepted the fact of her detention and that its trigger was her having evangelised students under 18, which was a school activity which was forbidden in China (as the Tribunal pointed out, it is also forbidden in Australia). It is the Tribunal’s comments on this detention found at [105] [CB 147] that provide the applicant’s ground for seeking review of the Tribunal’s decision.

   “As to her claim that she was detained by the police in 2004 and held for just under two months, she attributed this to the fact that she had been telling her primary school-age students, to whom she should solely have been teaching the Chinese language, stories from the Bible. Apart from her assertions that she was detained the Tribunal has before it no evidence of that detention. However, she agreed that teachers in China were not allowed by the relevant government departments to evangelise to students aged under 18, and that it was this which led to the period of detention. Although it was clearly an excessive response, more appropriately dealt with by the school, the Tribunal accepts that local police officers are known to detain people arbitrarily (see U.S. Department of State’s 2008 Human Rights Report: China (includes Tibet, Hong Kong, and Macau), Bureau of Democracy, Human Rights, and Labor, “2008 Country Reports on Human Rights Practices”, 25 February 2009). Her account is consistent with that evidence. However, the fact that she was not charged, was released on payment of a bribe to a particular officer (consistent with evidence that corruption remains an endemic problem in law enforcement agencies, ibid), was never again questioned about her religious activities and was able to resume those activities unhindered when she chose suggests that she was not detained for reasons of religion but most likely in order to extract just such a payment from her.”

5. There are other paragraphs of the “Findings and Reasons” that should be quoted prior to a discussion of the application. At [106] [CB 147] the Tribunal says:

   “Although she has claimed that people in her church group were cautious when participating in religious activities the Tribunal is satisfied from [the applicant’s]  account that it was not subject to any harassment or harm by Chinese authorities between 2003 when she joined it and 2007 when she left it. She told the Tribunal that she left China for two reasons, these being that she had no job and that she could not got to church gatherings freely.”

6. At [107] the Tribunal says:

   “The Tribunal accepts that she was dismissed from her job as a school teacher in 2004 and was unable to find further employment in that field. The Tribunal accepts that this was because, as she has conceded, she did not abide by the obligation on teachers employed by the government not to evangelise children under 18… However, she does not claim that she was denied employment in other areas of employment after her dismissal and the Tribunal is satisfied that she was not. Although it is clear that she valued her profession and wants to return to it, the Tribunal is satisfied that if she returned to China now her access to other forms of employment would not be denied because of her religious beliefs.”

7. The Tribunal also took into account the delay by the applicant in making her protection claim until a period of 19 months after her arrival had elapsed, noting the views expressed by Heerey J in Selvadurai v Minister for Immigration (1994) 34 ALD 347 that this was a matter that could be taken into account. At [111] [CB 148] the Tribunal concluded that the applicant had not been truthful in relation to her evidence concerning her recent meeting with her husband. It took that into account in finding at [110] [CB 148]:

   “Having regard to these matters, the Tribunal is satisfied that the applicant came to Australia for a reason other than fear of persecution for reasons of religion or any other reason enumerated in the Refugees’ Convention.”

8. By an amended application filed on 17 February 2010 the applicant sought review of the Tribunal’s decision on two grounds:

   “1.Error in construing and applying the words, “for reason of” in Article 1A(2) of the Refugees Convention.

   Particulars

   (a)Failure to consider that persecution could have more than one operative cause.

   (b)Failure to consider whether the immediate motivation for the persecution was the real or operative reason.

   (c)Failure to consider the nexus between persecution and the reason for the persecution feared in a “common sense way”.

   2. The Second Respondent (the Tribunal) failed to comply with section 425 of the Migration Act.

   Particulars

   (a)Failure to give the applicant an opportunity to give evidence and present arguments as to the reason for the extortion of which she was the victim.”

9. In regard to Ground 1 the applicant sought to persuade the Court that the Tribunal’s fact finding in relation to the reasons for her detention did not accord with the legal requirements expounded in such decisions as that of Hely J in Sarrazola v Minister for Immigration [1999] FCA 101 at [46] and [47]; Minister for Immigration v Sarrazola (1999) 95 FCR 517 at [16] and [17] where the Court made reference to Perampalam v Minister for Immigration (1999) 84 FCR 274 at [282] and [283]; Okere v Minister for Immigration (1998) 87 FCR 112 at [117] where Branson J referred to the application of common sense to the facts of each case; Paramananthan v Minister for Immigration (1998) 94 FCR 28 at [39] per Wilcox J and [43] per Lindgren J and [70] per Merkel J. And finally, the applicant referred to Rajaratnam v Minister for Immigration (2000) 62 ALD 73 at [46] where the Court said:

   “As this Court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason: see eg Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 166 ALR 641 at 645-646. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a Convention reason. The extorted party may have been chosen specifically as the target of extortion for a Convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a Convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.

   Likewise in the course of practising extortion on a person, self-interested action may be taken against the extorted party for the benefit and/or protection of the extorting party. Again it can be said that in taking such action, the extorting party's interest in the effect of it on the other is a "personal interest". But depending on whether the extortion itself is being practised for a reason that includes a Convention reason, the action in its setting may nonetheless be relevantly persecutory in character.”

10. I would not quarrel, nor may I, with any of these decisions. I am satisfied that they accurately represent the law in Australia in relation to the consideration of claims involving extortion so far as it affects the construction and application of the words “for reason of” in Article 1A(2) of the Refugees Convention. But I think that in the circumstances of this case the respondent has satisfactory answers to the claims made in Ground 1. The first claim is that the Tribunal failed to consider that persecution could have more than one operative cause. I think that claim is difficult to make out given the Tribunal’s explanation of s.91R(1)(a) of the Migration Act 1958 (Cth) (the “Act”) found at [15] [CB 136]:

    “Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.”

    It should be noted that s.91R(1)(a) was inserted after the decisions referred to by the applicant and noted in these reasons. I appreciate that it will be said that [15] is a boilerplate paragraph. But the fact that a paragraph such as this appears in all decisions does not mean that the Tribunal is not aware of it or disregards it; Duzdiker v Minister for Immigration [2000] FCA 391 at [12]; Irfran Yaqub v Minister for Immigration [1998] FCA 1539.

11. Particular 1(b) which says that:

    “The failure to consider whether the immediate motivation for the persecution was the real or operative reason”

    is difficult to support when one considers closely the highlighted extracts from [105] found at [4] of these reasons. In my view, the way in which this matter is expressed by the Tribunal indicates that it is making a finding of fact predicated upon its understanding that a person may be motivated to persecute for more than one reason. Fact finding in this way was considered by the Full Bench in Ramirez v Minister for Immigration (2000) 176 ALR 514 (“Ramirez”) at [36-38] and again at [43]. The Ramirez decision was approved by Bennett J in SZDJQ & SZDJR v Minister for Immigration [2006] FCA 533 at [38] and [39]. The third particular of Ground one that the Tribunal failed to consider the nexus between the persecution and the reason for it in a common sense way cannot, to my mind, be sustained in the light of the Tribunal’s reasoning taken as a whole.

12. The views which I have expressed above could be considered contentious. A Court on appeal might feel that the Tribunal should have discussed the possibility that the PSB’s choice of the applicant as someone to extort money from was influenced by her membership of an underground church or her Christianity because the extortionists felt that these connections would make every effort to have her released. It may be argued that there was thus a Convention nexus. It is for this reason that I should go on to make the further finding that in my view the manner in which the Tribunal considered the fact of the extortion is in the circumstances of this case irrelevant. The Tribunal’s duty is to examine the facts for the purposes of coming to a decision as to whether or not it can be satisfied that an applicant for a protection visa has a well-founded fear of persecution that would prevent him or her from returning to his or her country of origin. Thus the ground for obtaining a protection visa is a fear of future persecution, not evidence of past persecution. However painful past persecution may have been physically or mentally, unless it is an indicator of likely future activity against an applicant (or in the rare case causes a pathological fear of return to the place at which the persecution occurred) it is essentially irrelevant. In this particular case the Tribunal concluded, for reasons with which the applicant does not cavil, that, as she had remained in China for a period of three years following the persecutory activity and had not suffered any further persecution and was not in a position to return to teaching where she could further evangelise and thus once again become the subject of scrutiny by the PSB, she did not have a well founded fear should she return. The Tribunal’s views on that subject were supported by the fact that the applicant had not made an application for a PVA for some 20 months and its dismissal (again not the subject of complaint) of certain other claims she might have as to what could occur to her should she return to China on grounds of credibility, see [112-113] [CB 149].

13. The second ground upon which the applicant seeks review is an alleged failure to comply with the provisions of s.425 when dealing with the extortion claim. The applicant says that the Tribunal should have told her that it was minded to come to a conclusion that, whilst the arrest and extortion may have taken place, it was minded to conclude that the extortion had no Convention nexus. The applicant cites the decision of the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152 (“SZBEL”) at [47]-[49] and in particular suggests, as in that case, there is here a specific aspect of an account that the Tribunal considers may be important to the decision and may be open to doubt so that the Tribunal should at least ask the applicant to expand upon those aspects of the account and ask her to explain why it should not be accepted. In the instant case though the Tribunal did accept the account. There was nothing about the applicant’s evidence on this topic that it was minded to disagree with. As was its task, it analysed the necessary evidence and ascribed a different motive to what had occurred to that being propounded by the applicant. To my mind, this is doing no more than making the decision that it is obliged to make. To tell the applicant what conclusion it may come to about the evidence would appear to be providing her with the running account or the disclosure of what it is minded to decide. Both are specifically excluded as requirements by the decision in SZBEL.

1. For these reasons, I am unable to find that the Tribunal did fall into jurisdictional error in the way in which it reached its decision in this case. The application is dismissed. I order that the applicant pay the respondent’s costs assessed in the sum of $5,400.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  11 March 2010