SZOEM v Minister for Immigration
[2010] FMCA 675
•7 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOEM v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 675 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – no duty of notification pursuant to s.424A if information does not reject, deny or undermine applicant’s claims. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZOEM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 433 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 May 2010 |
| Date of Last Submission: | 6 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr H.P.T Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 433 of 2010
| SZOEM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a member of an unregistered Christian house church. She claims that her house church was raided by the police and that she narrowly escaped.
The applicant claims to fear persecution in China because of her membership of, or involvement in, an unregistered Christian house church.
After her arrival in Australia on 2 March 2009 on a Sponsored Family Visitor visa, the applicant lodged an application for a protection visa. Her husband, who is not an applicant in these proceedings, was included in that application as a member of the family unit. The application was refused by a delegate of the first respondent (“Minister”) on 7 September 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 25 of the Tribunal’s decision.
The following claims were made by the applicant in her protection visa application and in an accompanying submission from her migration agent:
a)she grew up in a Christian family and used to follow her parents in various worship services and activities. However, she was “not clear” about Christianity until she was older and was only formally baptised in 2005;
b)her elder brother was the leader of a local family church. The police conducted raids on his church in May, July and September 2006 but he managed to escape. His experiences caused her to think about leaving China; and
c)there is no religious freedom in China and she fears that she will be persecuted for being a Christian but not attending a government registered church.
At the departmental interview on 18 August 2009, the applicant made the following additional claims:
a)she attended a Catholic Christian Church in China from the age of thirteen with her mother and grandmother. Afterwards, she and her mother moved back to their home town where they attended an unregistered family/house church;
b)she attended her brother’s house church every week. Her children and other family members also attended the unregistered local church;
c)she was present when the police raided her brother’s house church in May, July and September. She did not mention this previously because she had forgotten;
d)she did not attend one of the registered churches in Fujian because she felt uncomfortable in a government church;
e)she did not want to go back to China because she was afraid of persecution. There was no religious freedom and the police would arrest her; and
f)she has been attending a Catholic Church in Flemington and also goes to classes.
In a pre-hearing statement to the Tribunal dated 15 November 2009, the applicant claimed that she was a Protestant Christian, not a Catholic, but that she might become a Catholic “in the near future”. She also claimed that on several occasions she had attended a registered church in China, the True Jesus Church, to see if she could change from an unregistered house church to a registered church but did not feel comfortable and so continued attending her house church.
The applicant and her husband appeared before the Tribunal on 18 November 2009 and 14 January 2010. On the first hearing day the applicant made the following claims:
a)she indicated in her visitor visa application that she had worked at her husband’s restaurant for over two years but did not include this in her protection visa application because she forgot;
b)as indicated in her protection visa application form, she had three children. When she filled in her application for the visitor visa, she indicated that she had only one child because people in her home town had told her that her children would not be able to come to Australia;
c)she feared that she would be harmed in China for attending a church other than an official government church;
d)she went to a house church for the first time in 2002. They would alternate between different houses to avoid being arrested;
e)she went to the True Jesus Church two or three times in 1993, 2001 and 2002 but did not feel free or comfortable so she stopped going. She later said that she had attended the True Jesus Church in 2002 and 2003.
f)the raids on her house church took place in May, July and September 2005. The first raid was at her brother’s house and the second and third raids were at the houses of other church leaders;
g)after the raid in September, she and her brother escaped to Gui Yang where they had relatives. When she returned in October, she went back to the church and saw police waiting and watching so she ran away. Later, she returned to the church and continued to go twice a week until she came to Australia;
h)she had converted to Catholicism since arriving in Australia and attended a Catholic church here every week, sometimes to clean and sometimes to go to mass or classes. The classes were conducted in Mandarin so she could only understand a little of what was said; and
i)she came to Australia with the intention of seeking protection but did not apply for protection until the day before the expiry of her visitor visa because her brother-in-law did not have time to make the application earlier.
The applicant provided to the Tribunal a photograph purportedly showing her singing in the True Jesus Church choir on 7 February 2008.
On the second Tribunal hearing day, the applicant claimed that her purpose in attending the conversion classes in Australia was not related to her protection visa application but, rather, was because she had been touched by God. She also claimed that she had sung in the True Jesus Church in 2008 and that she did so every Chinese New Year. However, she later said that she had sung with the choir just once which had been in 2008.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant grew up in a Christian family or practised Christianity in China, noting that:
i)the applicant did not demonstrate the knowledge and understanding of Christianity that, in the Tribunal’s view, would reasonably be expected of a person who claimed to have grown up in a Christian family and to have attended churches in China for most of her life;
ii)she gave inconsistent evidence about the alleged raids: in her protection visa application she stated that the police had raided her brother’s church in May, July and September 2006. However, at the hearing she said that her brother’s church was raided in May 2005 and that the other two raids in July and September 2005 occurred at the houses of other church leaders;
iii)the applicant claimed at the hearing that she had been present during each of the three raids, a claim which she did not make in her protection visa application. In the Tribunal’s view, the applicant would not have omitted such a significant fact had it been true;
iv)the applicant’s evidence regarding her involvement with the True Jesus Church was inconsistent. For instance, she initially claimed that she had attended the True Jesus Church between 2001 and 2003, however, the inscription in the photograph which she submitted to the Tribunal identified her singing in a choir at the church in 2008. She later said that she had indeed attended that church in 2008 and did so every Chinese New Year, but then changed her evidence to say that it had only been once – in 2008 when the photograph was taken; and
v)she claimed that part of her discomfort with the True Jesus Church was that people had to register. However, the Tribunal found no information to indicate that individuals were required to register with the authorities when attending religious services; only religious groups or organisations were required to be registered;
b)the Tribunal also had serious concerns about the general truthfulness of the applicant and her husband, including the provision of accurate information in their visa application forms. Specifically, the Tribunal noted that there were inconsistencies between the information they provided in their visitor visa application and their protection visa application regarding their previous employment and how many children they had;
c)the Tribunal found that the shifts in the applicant’s evidence and her readiness to tailor evidence to achieve her purpose cast serious doubt on her reliability as a witness;
d)the Tribunal found that the True Jesus Church photograph had been tampered with and that the heads of the applicant and her husband had been superimposed on the bodies in the photo. In reaching this conclusion, the Tribunal noted that:
i)the applicant and her husband both claimed that the latter did not sing in the choir yet he was identified by each of them as one of the persons in the photograph; and
ii)an enlargement of the photograph showed clear anomalies, including a difference in colour tone between the faces and necks of the applicant and her husband; differences in how the shadows fell under their necks compared with others in the photograph; the fact that the applicant and her husband were looking straight ahead while others were looking down at their song books; and strange white cuts around the applicant’s husband’s head;
e)the Tribunal accepted that the applicant had attended a Catholic church in Australia and that she was registered in Catholic conversion classes but found that she had engaged in these activities in order to strengthen her claim for protection, noting that:
i)she did not know what time on Sunday these classes were held and gave a different start date to that which was indicated on the church’s attendance list;
ii)she did not know the process involved in converting to Catholicism and suggested at the hearing that she had already converted. However, she had advised the Tribunal two days prior to the hearing that she might convert in the future;
iii)by her own admission, the applicant did not understand Mandarin, the language in which the classes were being taught;
iv)according to the attendance list she started the program on 31 May 2009, one day before her application for a protection visa was lodged; and
v)by her own admission, she claimed that she went to church primarily to help with the cleaning and imitated others during rituals and hymn singing;
f)the Tribunal found the applicant’s claim that she had waited until the day before her visitor visa expired to apply for protection because her brother-in-law did not have time to make the application earlier to be disingenuous. In the Tribunal’s view, had the applicant genuinely feared persecution, she would not have delayed seeking protection; and
g)the Tribunal found that the applicant was not a witness of truth in respect of her claimed Christianity, her membership of an unregistered Christian house church, the problems she experienced in China as a result and the reasons she feared returning. It found that she had fabricated her claims to be a Christian and to fear persecution in order to stay in Australia. The Tribunal therefore did not accept that there was a real chance that she would be persecuted for her membership of or involvement in an unregistered church or that she would involve herself in an unregistered Christian house church in China were she to return.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal has not adequately taken into consideration the applicant is still practicing her religion in Australia.
2.The Tribunal has not adequately taken into consideration the applicant had been persecuted in China.
3.There has been a constructive failure by the Tribunal to exercise jurisdiction.
At the hearing the applicant also made submissions touching on the merits of her visa application.
Ground 1
Although the applicant alleges that the Tribunal had not adequately taken into consideration her continuing practice of religion in Australia, its decision record makes it clear that this issue was canvassed at some length during the course of the Tribunal’s hearing on both 18 November 2009 and 14 January 2010. The applicant’s religious observances in Australia were then the subject of detailed consideration by the Tribunal.
The Tribunal accepted that the applicant had attended a Catholic Church in Flemington because her name was on the registration list for the Catholic conversion classes provided by that parish. However, it concluded that the applicant did not know the process involved in conversion to Catholicism. It noted that at its hearing she had suggested that she had (already) converted to Catholicism although only two days earlier she had advised the Tribunal that she might do this in the future. Moreover, by her own admission, the applicant did not understand Mandarin, the language in which the conversion classes were taught.
Another difficulty for the applicant was that the Tribunal found that she did not know at what time the conversion classes were held and gave a date for her first attendance which was different from the one on the attendance list. Further, the attendance list showed that the applicant started the program the day before she applied for a protection visa and although she attended ten classes up to the time of her interview with the departmental officer she attended only a few classes after that. The Tribunal concluded that this underscored that her attendance was related to her protection visa application rather than any interest in the contents of the classes or a genuine commitment to conversion to the Catholic denomination.
The Tribunal went on to conclude that the applicant was not a witness of truth in respect of her claimed Christianity.
Consequently, not only was the evidence touching on the applicant’s religious involvement in Australia referred to by the Tribunal but it was also considered in detail by the Tribunal when reaching its decision.
Ground 2
The allegation that the Tribunal had not adequately taken into consideration that the applicant had been persecuted in China suggests that the Tribunal found that she had, in fact, been persecuted in her country of nationality. This is not so. In a decisive finding, the Tribunal concluded that the applicant had fabricated her claims to be a Christian. Pointing to contradictions, inconsistencies and shifts in her evidence, the Tribunal found that the applicant was not a witness of truth in respect of her claimed Christianity, her membership of an unregistered Christian house church, the problems she experienced in China as a result or the reasons for her alleged fear of returning.
An alternative interpretation of this ground is that the applicant invites the Court to undertake a review of the merits of her protection visa application and to reach a conclusion different from the Tribunal’s. The Court is not empowered to do this. It is the Tribunal’s role to make findings of fact leading to a conclusion on the merits of an applicant’s claims and it is the Court’s role to ensure that, in performing that review function, the Tribunal properly applies the law. In any event, the Tribunal’s findings on the applicant’s claims concerning her experience in China were open to it on the evidence and were adequately supported by the reasons which it gave.
Ground 3
The allegation that the Tribunal was guilty of a constructive failure to exercise jurisdiction was unparticularised. It may be that this ground was included as a conclusion to be drawn were the first two grounds pleaded in the application to be made out. However, the applicant has not made out those first two grounds and no jurisdictional error has been demonstrated in connection with them. It therefore cannot be concluded either on the basis of this unparticularised allegation or on the matters raised in the first two pleaded grounds that the Tribunal constructively failed to exercise its jurisdiction.
Submissions at the hearing
The applicant made various submissions at the hearing in these proceedings touching on the merits of her protection visa application. What the applicant sought by these submissions was for the Court to review the merits of that application. For the reasons given above at [22], these submissions do not disclose a basis on which the Tribunal’s decision should be set aside.
Potential breach of s.424A
The Minister submitted, in discharging his model litigant obligations, that the Court should consider whether the information contained in the attendance sheet for the conversion classes held at the Flemington Catholic Church should have been notified to the applicant pursuant to s.424A. That section provides, relevantly:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it. …
Paragraph 100 of the Tribunal’s decision shows that it obtained the attendance sheet itself. This is corroborated by exhibit B which is a letter from Father McGee of the Columban Mission Institute to the Tribunal. That letter encloses a copy of the conversion classes’ attendance records disclosing when the applicant attended them.
Although the Tribunal put its concerns regarding the information contained in the attendance sheet to the applicant in the course of its hearing, and thus discharged relevant s.425 obligations, it did not notify the applicant of the information contained in that document pursuant to s.424A(1). However, the attendance sheet did not contain “a rejection, denial or undermining” of the applicant’s claim to be a person to whom Australia owes protection obligations: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [17]. If anything, it was supportive of her claim to be committed to Christianity. Consequently, s.424A(1) did not require the information contained in the document to be notified to the applicant. Further, the adverse conclusions which the Tribunal drew from that information, in the context of the other facts available to it, were not “information” as that term is understood for the purposes of s.424A(1): SZBYR at 1196 [18]. For these reasons, no breach of s.424A(1) is disclosed in this case.
Conclusion
For the reasons given above, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 September 2010
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