SZOHE v Minister for Immigration
[2010] FMCA 506
•1 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 506 |
| MIGRATION – Review of decision of RRT – Christian in China – no apparent error. |
| Migration Act 1958 (Cth), s.91R(3) |
| Applicant: | SZOHE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 673 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 1 July 2010 |
| Date of Last Submission: | 1 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2010 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 673 of 2010
| SZOHE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 11 March 2008 holding a student guardian visa and accompanying her daughter who was intending to study in this country. On 24 July 2009, after her guardian visa had expired, she applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 27 October 2009 a delegate of the Minister declined to grant a protection visa and on 25 November 2009, the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal which, on 22 February 2010, determined to affirm the decision under review and handed down its decision on the same day.
The applicant’s ground for claiming she was a person to whom Australia owed protection obligations was the convention reason of religion. The applicant told that on 24 December 2004 a neighbour invited her to join a Mass in a home church and she was touched by the Holy Spirit. Following that she participated in house church activities, sermons, and masses, and sometimes her daughter would come with her. Her daughter was baptised in 2005. The applicant said that participation in this type of church was illegal and in January 2007, when she was at Mrs Chen’s home praying, the police came in and told them that they had been watching them for a long time. They confiscated biblical books and CDs and took five people, including the applicant, to the local police station for interrogation. She was interrogated for the whole night and detained and then fined RMB2000. At the police station she had her hair dragged and she was beaten and slapped. She was locked in an isolation cell. She felt scared. In her original statement the applicant said that she did not participate in underground church activities after she was released but she still was harassed by the local police in her steamed bun shop. She decided to go abroad so that she could practice her beliefs publicly. Her daughter came to Sydney in July 2007. At first, she says she was refused a passport to accompany her but she did get one later and came in March 2008.
The applicant told the delegate that she went to church about once a week on Sundays and that she was not baptised herself. She had been told that you had to have a deeper understanding of the Bible than she did before you could be baptised. The applicant answered some questions from the delegate about Catholicism. She said that she is going to church in Australia every Sunday and receives some religious instruction but as that was in Mandarin and she really only spoke the Fuqing dialect it was difficult to follow.
The applicant appeared before the Tribunal. She was asked if anything had happened at the first church service she attended with Mrs Chen. The applicant said nothing and the Tribunal reminded her of her statement and asked why she did not mention such a significant event as being touched by the Holy Spirit. The applicant responded that she was not good at expressing herself and nervous.
The Tribunal questioned the applicant about her knowledge and understanding of Catholicism. She gave the Tribunal responses to those questions. She was unable to tell the Tribunal exactly what the Eucharist was and acknowledged she did not have knowledge of what was in the Bible because she could not read. She gave the Tribunal some information about the underground church services that she attended in China. The Tribunal asked her to explain how she suddenly came to police attention in 2007 after she had been attending services for two years every Sunday without difficulty. She said it was because the police noticed that she was closing her shop on Sunday.
The Tribunal questioned the applicant about the delay in lodging her visa application until after her original visa had expired. The Tribunal took up with the applicant the fact that she had been going to church ever since she came to Australia so she would have known about the availability of a protection visa application. The Tribunal suggested to the applicant that she may have obtained her limited knowledge of Christianity from what she had learned in Australia since coming here and explained to her the provisions of s.91R(3) of the Migration Act 1958 (Cth) (the “Act”).
In its findings and reasons at [43] [CB 103] the Tribunal said that it did not accept the applicant’s claims for a number of reasons which it then sets out. It believed that the applicant’s evidence at the hearing demonstrated that she only had a superficial and limited knowledge of Catholicism and Catholic religious practise. She was unable to explain the Christian understanding of God other than stating that God was Jesus. She was unable to explain to the Tribunal how Catholicism differs from other types of Christianity. She told the Tribunal that Jesus is the head of the Catholic Church not the Pope. She was unable to explain the difference between the unofficial and official Catholic Church. In relation to Catholic Church services the applicant’s explanation at the hearing of what happened at Mass was vague and lacking in detail. She did not know what the Eucharist or Holy Communion was. She was unable to name the sacraments at the hearing and had a limited understanding of what happened at the “Last Supper.”
Whilst the Tribunal did accept that the applicant could answer some questions, it felt that her responses appeared to be rehearsed and demonstrated to it that she did not have a genuine conviction and commitment to Catholicism. The positive answers did not overcome the Tribunal’s concern about her lack of knowledge or understanding of key aspects of Catholic belief and practice. The Tribunal did not accept that the applicant’s stated nervousness prevented her from understanding the questions that were being asked or from responding to them properly, notwithstanding her lack of formal education.
The Tribunal held against the applicant that she had no knowledge of the Bible and that she was not baptised. It also felt that she was unable to clearly explain how and why she turned to Christianity and Catholicism in particular. The Tribunal was most concerned about the fact that the applicant did not apply for a protection visa earlier than 20 months after her arrival. The Tribunal was not convinced by the applicant’s story concerning the police or the reasons advanced by her for their delay in taking any action against her. For these reasons the Tribunal also came to the conclusion that her admitted attendance at church, whilst in Australia, could not be said to have been carried out otherwise than for the purpose of advancing her claims and, therefore, it had to be disregarded.
On 26 March 2010 the applicant filed an application for review with this court. She had three grounds of application. The first was:
“RRT did not believe that the evidences provided by me is true. That’s not fair.”
Whilst fairness in the manner in which a Tribunal conducts its inquiries might well form part of a claim that the Tribunal fell into jurisdictional error, the fact that the Tribunal did not accept the applicant as a credible witness is not the type of fairness or unfairness to which those authorities would go. It is the Tribunal’s duty to decide upon matters of credibility and if it does that, based upon evidence submitted to it and there is sufficient evidence for such a finding to be made, then it will not have fallen into jurisdictional error. In this particular case the Tribunal explained, in some detail, why it believed the applicant lacked credibility. There were a number of reasons put forward which I have attempted to paraphrase earlier in this decision. Another Tribunal may have taken a different view about the applicant’s knowledge of Catholicism. It may have accepted that the applicant was a Catholic but not accepted the persecution she claimed. The only Tribunal whose views are in issue is the one that the applicant appeared before and I am unable to see that it came to its conclusions in an unfair manner.
The second ground was that:
“RRT used failed cases against my application. They did not believe the whole things I said are true.”
I did not understand the first sentence when I read it, but in the representations to me orally, the applicant said that the Tribunal had told her that she might have copied some other people’s claims. It would seem then that this sentence alludes to that discussion between her and the Tribunal. The applicant appears to have denied the suggestion and the Tribunal has not relied upon it. There is no jurisdictional error in this regard.
The third ground is that:
“RRT did not consider that I would be put in jail if I return. I have risk to go back to China.”
The applicant’s fear of being sent to prison if she returned to China is not an integer of her claim, it is an example of the type of persecution she might suffer. She would only suffer that persecution if she was wanted by the Chinese authorities for her religious observance. The Tribunal concluded that she was not so wanted. So even if the applicant had raised with the Tribunal the fact that she might have to go to jail if she returned, the fact that the Tribunal did not consider the matter was irrelevant. The Tribunal did not accept that the applicant would practise Catholicism or other types of Christianity upon her return to China. At [54] [CB 105] it says:
“The Tribunal does not accept that the applicant will be investigated, arrested or detained by the police for reasons of her religious activity if she returned to China.”
In those circumstances this ground cannot be sustained.
When the applicant came before me she made a number of submissions, most of which appeared to be an attempt to reargue her application. In other words, to convince the court that she was, as she claimed, a genuine Catholic. That, of course, will be asking the court to provide a merits review of the Tribunal’s decision which it cannot do. She did tell me that she had three children and that she had been penalised by the government. The applicant had discussed this matter with the Tribunal and had informed the Tribunal that although she was in breach of the one child policy she had paid fines for her children and that the only reason she could not go back was because of her religion [26] [CB 101]. However the Tribunal did take this matter into consideration. At [57] [CB 106] it says:
“The Tribunal has considered whether the applicant has any Convention related claims because of the fact that she has 3 children. At the hearing, the applicant did not claim that she was persecuted by the Chinese authorities and was unable to return because she had more than one child. She expressly denied this in her evidence at the hearing and she has paid the social compensation fee. No claims arise on the evidence before the Tribunal. The Tribunal does not accept that the applicant has a well founded fear of being persecuted for a Convention reason if she returns to China now or in the foreseeable future because of her membership of a particular social group, being a parent who has more than one child.”
In the light of this finding the applicant cannot argue that the Tribunal ignored a claim that she did make or which was so obvious from the papers that it would become the type of claim the Tribunal ought to have considered. For the reasons given above I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. The application is dismissed. The applicant must pay the first respondent’s costs assessed in the sum of $3,500.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 14 July 2010
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