SZOFD v Minister for Immigration

[2010] FMCA 357

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOFD v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 357

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal properly applied s.91R(3) – findings open to Tribunal – Tribunal considered all claims – no unreasonableness – Tribunal complied with s.425 – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.56, 91R, 415, 422B, 424, 425, 474

Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; (2009) 259 ALR 595; [2009] HCA 40
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration and Citizenship v SZKTI & Anor [2009] HCA 30; (2009) 258 ALR 434
SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Plaintiff S157 /2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Applicant: SZOFD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 495 of 2010

Judgment of: Nicholls FM

Hearing date: 20 May 2010

Date of Last Submission: 20 May 2010

Delivered at: Sydney

Delivered on: 26 May 2010

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms S A Sirtes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 9 March 2010 is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 495 of 2010

SZOFD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 9 March 2010 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 February 2010 which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 30 November 2007. She applied for a protection visa on 31 July 2009 (Court Book – “CB” – CB 1 to CB 30). She appointed a migration agent to assist her (CB 28).

Claims to Protection

1. The applicant claimed to fear persecutory harm if she were to return to China on the Refugees Convention ground of religion. The applicant claimed to be a Christian and an organiser of her house (local) church.

2. In early 2007 a breakaway group from her church formed their own church (“the Shouters”), which attracted the attention of the authorities because of their vocal form of religious practice. They were detained by police. This caused difficulties for the applicant’s church. Because they had been members, the police questioned members of the applicant’s church. As she was the church organiser, she became fearful. She arranged for an agent to obtain a student visa for her daughter and a guardian visa for herself so that she could leave China.

The Delegate

1. The delegate interviewed the applicant and subsequently refused the application on 8 October 2009.

2. Before the delegate the applicant provided a version of relevant events as to what had occurred in China which was somewhat different to the account given in the protection visa application (CB 46.7). She also claimed to have come to the attention of the authorities because some members of her church group were also Falun Gong practitioners. A claim not mentioned in her application.

3. The delegate found that aspects of the applicant’s “testimony” lacked credibility and opined that she had fabricated her claims (CB 46.3). The delegate was not satisfied that the applicant had been or would be of interest to the Chinese authorities for reason of her religion (CB 39 to CB 52).

4. The delegate also found that the applicant’s delay in applying for protection in Australia was inconsistent with a well-founded fear of Convention related persecution (CB 50).

The Tribunal

1. The applicant applied for review on 6 November 2009 (CB 53 to CB 56). She continued to be represented by the same agent (CB 54).

2. By letter dated 27 November 2009 she was invited to attend a hearing before the Tribunal scheduled for 14 January 2010 (CB 60). She attended on that date. Her representative was not present (CB 63). The only account before the Court of what occurred at the hearing is that contained in the Tribunal’s decision record ([24] at CB 80 to [44] at CB 84). The applicant added to her claims including that she had been arrested and detained. She also gave evidence about attending a church in Lidcombe, Sydney.

3. Following the hearing the applicant’s representative submitted a letter from the “Christian Assembly of Sydney” in support of the claims (CB 71 to CB 72). This letter, on church letterhead and dated 19 January 2010, stated:

   “Dear Sir or Madam

   This is to confirm that Miss [the applicant] has been attending our church service held at Lidcombe regularly. Miss [the applicant] commenced attending the church service from December, 2007”.

4. The letter had been sent in response to the Tribunal’s request at the hearing: “… to obtain a letter from the priest stating that he knows her, when she started attending church, and how often she attends.” ([37] at CB 82). The Tribunal was prompted to make this request because it had found her evidence about her attendance to be unsatisfactory.

5. While the letter is signed, the signatory does not identify his status within that church.

6. The Tribunal took into account that the applicant was illiterate, but found this did not explain the “many problems” in her evidence which it found to be “highly unsatisfactory”, given it was: “… internally inconsistent, vague, and at times the applicant appeared to be trying to avoid answering the Tribunal’s questions” ([48] at CB 85).

7. The Tribunal gave the applicant the benefit of the doubt and did not take an adverse view of inconsistencies arising from what she told the delegate at the interview. However, the Tribunal rejected the applicant’s claim that she was a practising Christian in China and the factual account of harm that flowed from this because of the evidence presented to it and in her written claims ([48] at CB 85).

8. In particular the Tribunal found:

   1)Her evidence about religious practice in China was: “… inconsistent and lacked coherence and clarity” ([49] at CB 85).

   2)Her evidence about what happened in church services to be “very vague”. Her illiteracy should not have prevented her from: “… describing concrete events such as the sequence of events at a church service”. The Tribunal found her evidence to be unconvincing. It formed the view that her evidence in this regard had been: “… learned for the purpose of the Tribunal hearing” ([50] at CB 86).

   3)She appeared to prevaricate when asked questions about her favourite stories from the Bible. The Tribunal did not accept her explanations for this ([51] – [52] at CB 86). Further, the Tribunal noted her evasive demeanour.

   4)The Tribunal took into account that she had demonstrated some knowledge of Christianity. But, for reasons which it gave, found that this had been learned for the purpose of her application for refugee status ([53] at CB 86). It found that she demonstrated little depth of knowledge or understanding which was inconsistent with her claim to have attended church regularly since 2002 ([53] at CB 87).

   5)The Tribunal rejected the applicant’s claims that even prior to February 2007 villagers had been oppressed because of their religious practices and that gatherings had been sometimes interrupted. It found her evidence to be vague and unconvincing in this regard ([55] at CB 87).

   6)The Tribunal did not accept the applicant’s claim that she was arrested in 2007. It rejected her explanations as to why this claim had been omitted from her written application. It found the applicant was not telling the truth in this regard ([56] at CB 87).

   7)Further, that her account of the claimed arrest was implausible in key aspects ([57] at CB 87). Further, that her evidence was inconsistent as to whether members of the breakaway group were Shouters or Falun Gong practitioners.

   8)Given difficulties with her evidence and explanations, the Tribunal did not accept that the applicant was of interest to the police or that they attempted to arrest her ([58] at CB 88).

   9)The Tribunal found there was no credible evidence to indicate that the applicant would be of any interest to the authorities for reason of her religious beliefs if she were to return ([59] at CB 88).

9. The Tribunal noted the church letter provided by the applicant. It found that it did not add to the applicant’s own evidence about her religious activities in Australia. The Tribunal accepted that the applicant had attended this church in Australia. But found that this was done for the purpose of strengthening her refugee claims. It therefore disregarded this conduct pursuant to s.91R(3) ([60] at CB 89).

10. The Tribunal affirmed the delegate’s decision as it could not be satisfied that the applicant had a well-founded fear of persecution for any Convention reason if she were to return to China.

Application to the Court

1. The application is in the following terms:

   “The RRT’s decision was affected by jurisdictional error as it failed to consider my religious practice in Australia

   Particulars:

   The applicant provided evidence that she had been attending church activities from December 2007. She also provided a supporting letter from the Christian Assembly of Sydney confirming her church activities. The RRT found that the applicant engaged in such activities for the purpose of strengthening her refugee claims, and therefore did not consider such evidence, pursuant to s.91R(3) of the Act.

   The applicant arrived in Australia on 30 November 2007 and commenced attending church service from December 2007. She had not intention to lodge a protection visa application until 31 July 2009, about one and a half years after she commenced attending church service. It is unreasonable to assert that the applicant’s church activities were for the purpose of strengthening her refugee claims.”

Before the Court

1. The applicant appeared in person. She was assisted by an interpreter in the Fuqing language. Ms S Sirtes appeared for the first respondent. Written submissions have been filed on behalf of the Minister. The applicant has put nothing further to her application (and affidavit accompanying her application) to the Court.

2. At the beginning of the hearing the applicant commenced crying. I adjourned for a short period to allow her to compose herself. The applicant explained that she felt “uncomfortable” because her husband had married another woman. Nonetheless she confirmed that she was content to proceed with the hearing.

3. The applicant at first submitted that she could not say anything in support of her application. Even though she insisted that she had drafted the ground and particulars, it was clear as she then confirmed that she had no knowledge of s.91R(3).

4. The applicant was then able to say that she was not satisfied with the Tribunal’s decision because she is a “genuine Christian” who had been persecuted in China, but that the Tribunal did not believe her.

5. The applicant’s sole ground before the Court asserts jurisdictional error on the part of the Tribunal because it is said that the Tribunal failed to consider her religious practice in Australia.

6. The particulars can be read as making the following complaints:

   1)The applicant provided documentary evidence to support her own evidence that she had attended church activities in Australia since December 2007. The Tribunal found that she engaged in such activities for the purpose of strengthening her refugee claims. In these circumstances the Tribunal did not consider her evidence, including the church letter, pursuant to s.91R(3).

   2)It was unreasonable on the part of the Tribunal to find that her church activities were for the purpose of strengthening her refugee claims, given that she started attending church soon after her arrival in Australia. That is, from December 2007.

   3)This was before she formed her intention to lodge her protection visa application. Therefore, she could not have attended church for the sole purpose of strengthening her refugee claims.

7. Section 91R(3) is in the following terms:

   “(3) For the purposes of the application of this Act and the regulations to a particular person:

   (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

Consideration

1. I agree with the Minister that the ground, as particularised, misunderstands the operation of s.91R(3).

2. First, by disregarding such conduct for the purposes of s.91R(3) the Tribunal cannot be said, for that reason alone, to have failed to consider the applicant’s religious practice in Australia. The Tribunal clearly turned its mind to this matter (see [60] at CB 88).

3. During the Tribunal hearing the applicant gave evidence that she attended church in Lidcombe ([36] at CB 82). The Tribunal indicated to her that her evidence about her church attendance was unsatisfactory ([37] at CB 82). In this context the Tribunal asked her for, and subsequently received, the letter from the church.

4. The Tribunal considered the letter and found that it did not add to the applicant’s evidence about her religious activities in Australia. That is, the Tribunal’s concerns about the applicant’s evidence in this regard remained. Particularly, the unsatisfactory nature of her evidence regarding the regularity with which she attended, and her capacity to participate, given the language difficulties.

5. Ultimately, however, the Tribunal accepted that the applicant did attend this church. This answers the applicant’s bare complaint in the ground as pleaded that the Tribunal failed to consider her religious practice in Australia.

6. Second, with regard to the particulars, the complaint that the Tribunal’s disregard of this conduct for the purposes of s.91R(3) amounted to a failure to consider does, again as Ms Sirtes submitted, reveal a misunderstanding of the operation of s.91R(3).

7. As was explained by the High Court per French CJ and Bell J in Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; (2009) 259 ALR 595; [2009] HCA 40 (“SZJGV”) at [7], s.91R(3) operates as a command to the Minister and, ultimately and relevantly, to the current proceedings, the Tribunal. This command is to consider whether “an applicant seeking to rely upon conduct engaged in in Australia” has shown “that the conduct was not engaged in solely to strengthen his or her claim” (see SZJGV at [13], and also in particular at [53] to [65] per Crennan and Kiefel JJ).

8. In the current case the Tribunal complied with this command. It ascertained that there had been certain conduct in Australia. It was not persuaded, however, that that conduct was engaged in other than for the purpose of the applicant strengthening her refugee claims.

9. As Ms Sirtes submits, the Tribunal (relevant to this case) is the arbiter of fact as to the purpose of the conduct. The applicant may claim that she had a different purpose for attending church, but it is for the Tribunal to decide based on what is before it. In the current case it was open to the Tribunal to find it was not satisfied that the applicant engaged in attending church in Australia other than for the purpose of strengthening her claim to be a refugee.

10. Given the applicant’s evidence and what it found in relation to the letter in support, this was open to the Tribunal to so find. Once having found this, the Tribunal was bound to disregard this conduct pursuant to s.91R(3). In this sense, the Tribunal did not fail to consider the conduct as submitted by the applicant now, but properly disregarded it in deciding whether the applicant had a well-founded fear of Convention related persecution if she were to return to China.

11. The applicant complains that she had no intention of lodging a protection visa application until July 2009, therefore her church attendance up to that time from December 2007 was done for another purpose, that is her genuine commitment to religious practice in Australia. That it was therefore unreasonable for the Tribunal to have found to the contrary.

12. I agree with submissions by Ms Sirtes that the language of s.91R(3) is directed to conduct undertaken to strengthen an applicant’s claim to be a refugee, not necessarily for a protection visa:

    “Section 91R(3)(b) … strengthening the person’s claim to be a refugee…”

    This distinction means that the timing of the making of any such application for a protection visa is not relevant. There is no limitation on the Tribunal considering only conduct made after the making of a protection visa application. The section is clearly directed to any conduct engaged in in Australia. There is no time limitation.

13. However, in my view the applicant’s complaint may also include another element. That is, that as she had no intention until July 2009 of seeking protection in Australia as a refugee, which is plainly the purpose of making the application for a protection visa, then it was unreasonable of the Tribunal to have found that her religious conduct in Australia was made for the purpose of strengthening her refugee claims.

14. Unfortunately for the applicant, such an argument would have weakened her claims to be in genuine need of protection. Given her claims as to what had happened in China, any lack of intention to apply for protection until 22 months after arrival in Australia would have been an issue in itself for the Tribunal to consider. Noting that such delay was one of the reasons that the delegate relied on to refuse the application (see CB 50).

15. Further, also as Ms Sirtes submitted, the Tribunal’s unchallenged account of what occurred at the hearing reveals that the applicant never suggested to the Tribunal that she had no intention to apply for protection at the time of her arrival and when she commenced attending the church. Nor did she otherwise put such a statement to the Tribunal. The argument that the applicant now seeks to put to the Court should more properly have been put to the Tribunal.

16. In any event, these matters, of course, are for the relevant decision makers to consider. But for the current purpose, I cannot see that the Tribunal’s finding in relation to her conduct in Australia was unreasonable, and certainly not in the Wednesbury sense (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223) if that is what the applicant’s particulars imply.

17. The Tribunal comprehensively rejected the applicant’s claim to have been a practising Christian in China. It did so because of the unsatisfactory nature of her own evidence as to her understanding of relevant principles and practices. It also rejected each of the critical events claimed by the applicant to have flowed from this practice. For example, the claimed questioning, detention and then search for her by police. Each of these claimed events were rejected by the Tribunal for reasons related to the applicant’s evidence as to each of these events.

1. In relation to her claimed conduct in Australia, the Tribunal clearly had difficulty in accepting the applicant’s evidence noting, for example, the different reasons that she gave for her admitted failure to attend regularly.

2. In all the circumstances it was not unreasonable of the Tribunal to find that what could be accepted from the applicant’s evidence, that is, that she attended church in Lidcombe at some times, when seen in context of the Tribunal’s comprehensive rejection of her claim to have been a practising Christian in China, was engaged in for the longer term purpose of strengthening a claim to be a refugee on religious grounds. Thus therefore hoping to give substance to the claim made subsequently in the protection visa application. The Tribunal’s finding in this regard was at least reasonably open to it to make in the circumstances.

3. As to the letter from the church and the Tribunal’s request of the applicant to provide such a letter, the Tribunal plainly has the power to “get” information and to orally ask for such information as authorised by s.424(1), s.56(1) and by reason of the operation of s.415 (see Minister for Immigration and Citizenship v SZKTI & Anor [2009] HCA 30; (2009) 258 ALR 434 at [46]).

4. Further, the Tribunal plainly had regard to the letter and considered it. It was plainly determinative in its finding to accept that the applicant had attended church in Australia on some occasions (see [60] at CB 88.9).

5. As Ms Sirtes submits, the Tribunal disregarded the applicant’s attendance at church pursuant to s.91R(3). It did not reject the letter or fail to consider this evidence as in the sense found, for example, in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 at [27].

6. The applicant’s ground as particularised does not reveal error in the Tribunal’s decision.

7. Nor can I otherwise readily discern any error on the part of the Tribunal. The Tribunal complied with its procedural fairness obligations as set out in the relevant procedural code exhaustively stated in Division 4 of Part 7 of the Act (absent bias). Noting that this is a case to which s.422B applies.

8. The applicant was invited to a hearing pursuant to s.425. Following the delegate’s decision the applicant could have been in no doubt that the credibility of her entire factual account of events in China was at issue. The delegate found that she had: “… fabricated her refugee claims…” (CB 50.4).

9. In any event, on the only, unchallenged account of what occurred at the hearing before the Court (that is unchallenged by any evidence to the contrary), the Tribunal did more than “sufficiently indicate” to the applicant the problems that it had with her evidence and therefore her claims. Noting, indeed, at one point, where it described her evidence as to when she had been arrested as being, in the circumstances, “nonsensical” (see [38] at CB 83.4). (See also generally at [26], [30], [32], [37] and [39] to [43].)

10. The Tribunal clearly met its procedural fairness obligations pursuant to s.425 as required by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.

11. The Tribunal’s findings leading to its ultimate conclusion were all reasonably open to it on what was before it. It gave cogent reasons for its findings. Ultimately, its disbelief of the applicant was within the proper exercise of its jurisdiction. Such findings as to credibility being a part of the Tribunal’s function as the relevant finder of fact (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

Conclusion

1. For the applicant to succeed before the Court there is the need to, at least, discern jurisdictional error on the part of the Tribunal. As no such error can be seen, the decision is, as Ms Sirtes submits, a privative clause decision for the purpose of s.474 of the Act (Plaintiff S157 /2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2). The application is therefore dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  D Nestor

Date:  26 May 2010