SZOGC v Minister for Immigration - [2010] FMCA 732

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGC v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 732

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.476

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; [1998] FCA 1126
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1

Applicant:

SZOGC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 575 of 2010

Judgment of:

Barnes FM

Hearing date:

1 September 2010

Delivered at:

Sydney

Delivered on:

1 September 2010

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 575 of 2010

SZOGC

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 dated 16 February 2010 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa. The applicant is a citizen of the People’s Republic of China who first arrived in Australia in April 2008 as the holder of a student guardian visa. She returned to China in January 2009 and re-entered Australia on 16 March 2009. On 31 July 2009 she lodged an application for a protection visa. In a written statement attached to the application she claimed to fear persecution in the PRC based, in essence, on her Christianity.
The applicant attended an interview with the delegate of the first respondent. The delegate refused to grant the applicant a protection visa, finding that she was not a credible witness. The applicant sought review by the Tribunal. The applicant was invited to attend a Tribunal hearing which at her request was adjourned because she claimed she was unable to attend due to back pain. The applicant attended the adjourned Tribunal hearing.
In its reasons for decision, the Tribunal set out in length the claims made by the applicant in her original application, her evidence at the Departmental interview and at the Tribunal hearing. The applicant claimed that both she (and also her husband, who is apparently in China) had been persecuted due to their Christianity. She claimed that her husband had become a Christian in April 2003 and that since February 2005 she had been attending church gatherings with him, which were usually held at a named person’s home.
The applicant claimed that her “understanding and faith in Christianity ha[d] deepened each day”. She claimed that on 7 October 2007 she and her husband and 11 other people were at a church gathering at a home, when police officers “broke in and confiscated…bibles and other material in relation to Christianity”. She claimed that they were “questioned individually” at the police station and accused of having illegal religious gatherings. She was pressed to “confess” who the organiser was and accused of being involved in cult activities. The applicant claimed that she was abused and that on 8 October 2007 they were arrested and detained for seven days. She claimed her “husband was told by his employer that [he] would no longer be working there if similar events [happened] in the future”.
The applicant also stated in her original statement that in August 2007 she and her husband decided to send their son to study in Australia to “gain more insights [in]to the outside world”. She accompanied him to Australia in April 2008. She claimed that in Australia she had “actively participated in church activities…held by the Chinese community” and that when she visited family in China in January 2009, she took some materials relative to Christianity with her. She claimed she was visited by fellow church friends and shared with them what she had learnt in Australia.
The applicant returned to Australia in March 2009. She claimed that on 5 July 2009 she was informed that her husband had been arrested on 30 June 2009 “as the police ha[d] found out about the materials [she had] brought back from Australia”. She claimed that her husband had been “accused of being involved [in] foreign cult activities” and had been physically abused. According to the applicant, her husband told the police she was the source of the documents and he was “sentenced to six months of “re-education through labour””. The applicant claimed her family was warned by the police, told to report if she returned to China and that she feared being arrested and persecuted if she returned to China.
The Tribunal concluded that (as it had put to the applicant at the hearing) there were “good reasons for concluding that she [was] not telling the truth when she claim[ed] that she and her husband [we]re Christians, that they were persecuted for reasons of their religion in China and that she fear[ed] persecution for reasons of her religion if she return[ed]”.
The Tribunal acknowledged that it should not set an “artificial standard which an applicant must meet…to qualify as a believer in a particular religion”, but was of the view that “if someone claim[ed] to have been believing in a religion” and “faithfully following it” (as the applicant did), “they should be able to demonstrate at least some basic knowledge of that religion”. However, as it detailed in its reasons, the Tribunal found that the applicant was unable at the hearing to tell it “anything at all about Christianity”. Notwithstanding that she claimed she had been attending gatherings for one or two years in China at which they had read out passages from the Bible, “she could not tell [the Tribunal] anything about the Bible”.
In relation to the applicant’s claim that she had been baptised, the Tribunal had regard to the fact that all she was able to explain “about the ceremony of baptism was that the brothers and sisters would gather, the head of the church would use water to baptise and…would read things”. She could not remember what had been read. When asked the name of the Minister at the church she claimed she had been attending in Campsie, she had responded “Jesu”. Subsequently she said that the Minister had an English name, but she had forgotten it.
When asked what she could tell the Tribunal about Jesus, the applicant had “proved unable to tell [the Tribunal] anything”. Given that the hearing took place less than a month after Christmas, the Tribunal recorded that it had asked the applicant if she knew about Christmas. It had regard to the fact that she did not know. She claimed that she had not gone to church that day because she had been visiting an ill friend.
The Tribunal did not accept the applicant’s explanation that she could not tell it anything about Christianity because she was uneducated and illiterate and had a poor memory. The Tribunal had regard to the applicant’s claim to the Department that “she had a bad memory because she had been injured when…arrested and beaten up in China” and “had problems with her head”, but also to the absence of any medical evidence and the fact that it was clear that she had no difficulty at the hearing answering questions with regard to other matters and that it was only when the Tribunal asked her about Christianity that she started to plead ignorance based on a poor memory. It considered it reasonable to expect that someone in the applicant’s claimed position would be able to say something about her faith, even if it was very simple and unsophisticated.
Having regard to the applicant’s inability to tell it anything about Christianity, the Tribunal did not accept that she was Christian. Therefore it did not accept the remainder of her claims or that there was any chance that she would be arrested or otherwise persecuted for reasons of her real or perceived religion if she returns to China now or in the reasonably foreseeable future.
In relation to the applicant’s claims about attendance at church in Australia, having regard to the view it took of her credibility, the Tribunal did not accept that such conduct had occurred. Nor did it accept that she took material from that church back to China. The Tribunal affirmed the decision of the delegate.
In her application for review filed on 17 March 2010 the applicant relies on three grounds. She did not file written submissions but was given the opportunity in the hearing to address these grounds. I note that insofar as the grounds refer to “us” or “we”, there was only one applicant to the Tribunal who is the only applicant in these proceedings. The first ground is:
RRT did not give us a fair decision. they (sic) did not trust us. they (sic) thought we did not tell the truth.
When asked about this ground, the applicant contended that the Tribunal made an error because it did not believe her and that she was a Christian. Insofar as the applicant seeks merits review, as I endeavoured to explain to her, merits review is not available in this court. Insofar as the applicant challenges the Tribunal’s adverse credibility finding, findings of credibility and findings of fact are a matter for the Tribunal. (See Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). No error has been identified in the Tribunal’s credibility finding. Such a finding was open to it on the material before it for the reasons that it gave, being based on rational grounds and arrived at after a consideration of matters logically probative of the issue of credibility. (See Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; [1998] FCA 1126).
In addition, the Tribunal did not err by setting some artificial standard which an applicant must meet in order to qualify as a believer in a particular religion in the manner in which it assessed the applicant’s claims and knowledge of Christianity. Ground one is not made out.
Ground two is:
RRT failed to account my situation in China. we (sic) will be put in jail if i (sic) go back.
The applicant suggested that the Tribunal had failed to consider the serious consequences if she returned to China. However, as set out above, the Tribunal found that the applicant was not a Christian and did not accept her claims about past events in China affecting either her or her husband because of Christian beliefs. Accordingly, it found there was no real chance that the applicant would be persecuted for reasons of her real or perceived religion were she to return to China now or in the reasonably foreseeable future. Such findings adequately dealt with the future consequences of the applicant returning to China, based on the Tribunal’s rejection of the basis for the applicant’s claims to have a well-founded fear of persecution. Again, merits review is not available in this court. Ground two is not made out.
Ground three is:
RRT and DIAC doubt my claim without substantive evidences.
The application before the court is an application to review the decision of the Tribunal, not that of the delegate. Insofar as the applicant does seek to challenge the delegate’s decision the court does not have jurisdiction to review such a primary decision. (See s.476(2)(a) of the Migration Act 1958 (Cth)).
Insofar as it appears to be contended that the Tribunal had an obligation to investigate or provide evidence to support its findings, this misunderstands the Tribunal’s obligation to conduct a review. It is not obliged to provide evidence to support its findings in the manner contended for by the applicant. It was for the applicant to make out her case. This is not a situation in which there was any obligation on the Tribunal to make further inquiries or investigations (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39).
Ground three is not made out.
As no jurisdictional error has been established on any of the bases contended for by the applicant and nor is any apparent on the material before the court, the application should be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,700. The applicant told the court that she had no job and no money to meet legal costs. However, her lack of funds is not sufficient reason to depart from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 September 2010