SZOJG v Minister for Immigration
[2010] FMCA 559
•28 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJG v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 559 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – Tribunal finding the applicant was a Christian but was not at risk of harm because his claims of past harm were false and he would not undertake activities in the future that would expose him to risk – applicant elaborating upon his claims over time up to the judicial review hearing – it was open to the Tribunal to conclude that the applicant’s claims of serious harm as a result of evangelising and associating with underground groups were false – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| Applicant: | SZOJG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 892 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 28 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms D Watson Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 892 of 2010
| SZOJG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 30 March 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. Background facts relating to the applicant’s claims and the decisions of the Minister’s Department and the Tribunal on them are conveniently summarised in the Minister’s written submissions filed on 21 July 2010.
The applicant is a citizen of China and claimed to fear persecution on the basis of his Christianity. In a statement attached to his protection visa application, he claimed to have been a chef who evangelised to interested customers and colleagues and that, in April 2009, he was threatened by local authorities and warned that he would be dismissed from his job. He also claimed to have been monitored and questioned by police and to have come to Australia by bribing people in China.
The applicant attended two interviews with a delegate of the Minister’s Department at which he made additional claims and responded to information from his tourist visa application. The applicant later provided further documents in support of his application but these were received by the Department after the delegate had made his decision and the documents were returned to him.
The applicant attended two days of hearing in the Tribunal at which he gave evidence. He was invited, on the second day of the hearing, to comment on information purportedly pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”), particularly with respect to information provided by the applicant to the Department during the interviews. The applicant responded to this information at hearing and the decision record notes that he said he did not require further time to comment.
Tribunal decision
The Tribunal found as follows:
·The applicant had not provided a truthful account of his experiences in China and he was not a witness of credit. While the Tribunal accepted that the applicant attended registered churches in China and identified himself as a Christian, it did not accept that he came to the attention of authorities for preaching Christianity, for attending illegal gatherings, for any dissatisfaction with local authorities nor that other claimed incidents had occurred.
·The Tribunal made these findings because it found the applicant had changed his evidence in significant respects over the course of the processing of his application. He had only claimed on the second day of the hearing that he had attended illegal gatherings, that he was almost arrested at the end of 2008, and that he had only gone overseas because the police had been to see his wife while he was preaching. Further, he had only mentioned for the first time at an interview with the Department that the authorities had come to his house and arrested him in February 2009 and that his employment had ceased in April 2009. The Tribunal also noted an inconsistency in the evidence the applicant gave regarding where he had been arrested.
·The Tribunal did not accept the applicant’s explanations for why he had not mentioned these issues earlier.
·The problems with the applicant’s evidence led the Tribunal to also doubt the veracity of a corroborative letter from his former employer, particularly given inconsistencies between the applicant’s statement and the letter as to whether he had been dismissed from employment and the date he commenced employment. The Tribunal did not accept the applicant’s explanations for these inconsistencies.
·The Tribunal accepted the applicant attended church services in Australia and that this was otherwise than for the sole purpose of strengthening his claim to be a refugee, but found that there was not a real chance the applicant will be persecuted on return to China based on these attendances.
·The Tribunal found that the applicant only ever attended registered churches in China, and that he had not suffered any harm for doing so nor for identifying as a Christian. It also found he had not proselytised or attended illegal gatherings. The Tribunal found that if the applicant returned to China he would continue to practice as he had done in the past and, given independent country information, he would suffer no harm doing so.
The Tribunal was therefore not satisfied that the applicant has a well-founded fear of persecution.
The application and evidence
These proceedings began with a show cause application filed on 23 April 2010. The applicant continues to rely upon that application. The application is defective in that the grounds in it are simply a repetition of the applicant’s protection visa claims. However, under the heading “Orders sought by the Applicant”, the application does disclose intelligible grounds of review:
1, I disagree with Immigration and [Tribunal’s] decision since I am a Christian. They did not consider that I will be in danger if I return.
2, [Tribunal] did not consider that I am still a Christian in Australia and it will also bring me a big trouble if I return home.
3,[Tribunal] member questioned me at hearing made me feel very up sad. They never trusted me and I do not think they had the right attitude to my application. [Tribunal] should grant my application.
The Grounds of the Application are:
1, I am a Chinese citizen and I am a Christian for years. I have been warned by my local security and company to be put in prison if I continue this activity.
2, I have never given up my faith as a Christian and I have been pursuing the truth. I can not go back to China since I am very scared to be sentenced.
3, I have been to the church every Sunday since I arrived in Australia. I believe that Chinese government still look for me if I return. My family told me not to go back since they came to my home and asked where I am about.
The applicant filed a short affidavit with his application, which I accepted as a submission. He filed a further affidavit on 28 June 2010 which is in part a submission, but is in substance a more comprehensive statement of his protection visa claims than he has previously advanced. I received that affidavit as a submission to the extent that it made submissions and as evidence to the extent that it was relevant. In my view it has relevance in that it illustrates the difficulty that was faced by both the Minister’s delegate and the Tribunal. That difficulty was the way in which the applicant elaborated substantially upon his claims over time. The applicant relevantly states in the second affidavit:
I think that [Tribunal] decision was unfairly and inconsiderable and I wish to provide following information for your kind consideration.
I was not given enough time to express and deliver the information in regards to the persecution I had suffered. Due to my lack of knowledge of Australian law I enquired from professionals and was responded that if I told my story below I would be suspected by the Department of Immigration and my application would be eventually failed as I was unable to provide substantial evidence in support my claim. If my application failed I must be sent back to China. Having considering about his, I had many concerns and up set about my faith and what will happen on me and my family. In fact, all the things happened in my life was true but unfortunately I have no evidence at all and lack of confidence to speak out to the Department and [Tribunal]. I hate to make up story or provide false evidence as it is totally against my religion and bible. I think this could be the reason why [Tribunal] misunderstood me.
Although I was released from detention in China but I still did not find it acceptable at all as I didn’t think I had been doing something wrong. I made many complaints in private. I said if we were unwilling to spread gospel of God, we were not genuine Christian. The fact is that the Three-self Patriotic church never encourage missionary, spreading gospels, and dedication. They preached and holding Revival meeting like story class or meeting, and the priest often preached with his private and political comment and prejudice such as they condemn FALUN GONG, TAI WAN and TIBETAN independence to please the government. I felt real sick of it.
The three-self patriotic church priest insisted that being a member of three-self patriotic church, you must [obey] to the government first or you would be regarded as a person betrays our socialist country, and if so, you were not a person the God love. They mean that for loving God, you must love your country and nation first, and for loving your country and nation, you must love and absolutely obey your government however I definitely didn’t agree and couldn’t do so as it was not what the [bible] says and in fact, I hate the corrupted government guts. So people like me were not welcomed by the three-self patriotic church and the government believed that I was a trouble maker and dangerous person to the Communist regime.
I would like to show some typical examples to the above claim. For instance, shortly after I was bailed through assistance, some strange things happened in my life which scared me great. I had received twice strange phone calls at home and every time it was in the late evening after 11:00PM when I answer the pone, no baddy speaking on the other side but creating terrible, harsh and grating sound which scared me thrillingly. Shortly after I handed up the phone the call came up again by no baddy talking over there and the scared sound occurred again. I couldn’t sleep over night as I was up set and fear.
The second time when the strange telephone call came in, the person on the other side was terribly rude and swore me in a very challenging and low voice. The person didn’t answer my questions and refused to tell me who he was. He did not listen to me at all and suddenly [hung] up the phone. Half house later he called back again and threatened me by saying he would let me disappear secretly soon in this bloody world and send me to heaven to see the God (means killing and terminated my life). After I received these two calls I was shocked, clasped and fear, losing my sleep and feeling up set all day long. I felt unsafe walking on street myself.
I remember that one day in deep winter someone smashed the window glass of my home by using brick. The weather was extremely cold with outside temperature below zero degrees Celsius (approx minus 20). I wanted to go out to check but I couldn’t open the door because it was blocked by someone. So I urgently called one of my friends for help. However when I went out, I couldn’t find the person who sabotaged our property there. We use the quilts to block the smashed window class till the next morning. I was very angry and went to report police over night however the police was reluctant to help me. The police knew I was a Christian and evangelized in public (I once preached gospel to the Communist carders of village, persuading them to confess from sins, corruptions and believe God) and the police investigated me in secret especially my expression against government. So they were not interested in my report and told me that I had made a trouble for the government already and I must stop doing so or I wouldn’t be protected by government. They also said that to maintain a social order people like me better disappear soon in our community. People like me, the less our society had the better the socialist Community will be.
I parked my motorcycle outside home but the tires were seriously cut by sharp knife and the plate was stolen. I had no idea who did it intentionally. One evening I was on the way home and was attacked at back by strangers. My leg was beaten and injured and I fell down the road. My head was covered by someone and my arm was injured with scar by burning cigarettes. My money was [robbed].
In addition, my child was bullied by strangers on the way home and afraid of going on street independently. My family life was affected after series of strange incidents occurred. I went to police to report that was framed up and blackmailed but I couldn’t be helped as I had no evidence. The police claimed I would be alleged of a false accusation if I report again without evidence. I eventually lost confidence for Chinese government as they don’t trust and protect people like me. In their eyes, I am a person against law and made government unhappy. I was a dangerous person who disordered the socialist stability.
at early stage I thought perhaps I offended someone but I couldn’t ensure myself. I am a Christian and treat people honestly and friendly. Besides my conflict with government I had no enemy in my life. I felt my life became more and more difficult and fearful. I couldn’t accept the facts that I was given a hard time and treatment, living in such country of corruption. I felt sham living without freedom, democracy and protection. I hate corruptions and autocracy. In my hometown, corrupt official exist everywhere and the public morals are decayed. Lots of people including the relatives of government officials went to church and blessed merely for their selfish desires such as promotion and prosperity in materials, rather than spirit.
They refused to confess, dedicate and contribute voluntarily or spread gospel. They [worship] the God for their selfish demands and practice Christianity like a feudal and superstitious. I thought hose are the sins rather than real christens. As a Christian I kept telling the truth, condemning and exposing such dirty things in public. I believed I was doing the right things.
Later, one of my church fellows who spread gospel told me that he also had a trouble with government. He warned me that his family also met strange things recently such as harassing calls. I was finally aware that the police persecuted those who denied confession to government after released in way of making trouble, imposing threats and pressure to disorder your daily life. I was also aware that it’s hard for me to get evidence because it relates to government authority. I had comment concern that the so called freedom of religion was unrealistic and deceptive in China and government never stopped to restrict spreading gospel of God and free gathering, and anything or activities of anti-government authority, opposing the religion affection or impact on communist members, public servants and carders. People who offend the rule will be sanctioned, threatened, attacked or killed and these happened in my real life.
I was psychologically harmed in these incidents resulting a fearful and overshadowed mood. I escaped out of China to get [rid] of threat. After I went abroad, my family was still harassed but we lack of evidence. We felt there is a scared claw in secret and made us a pressured suffered. According to my family the government and community never stopped to investigate how I went abroad and who helped me with documentation. They also doubt about if I am still connect with China for evangelization especially during the sensitive period of “China World Expo” event. They treated the people of spreading gospel a nasty person and potential enemy.
Chinese government treated those who expressed against the communist regime as dangerous people and keep eyes on them, especially those who have connection abroad. I was told by family that recently a missionary from the US was detained in my hometown. I was shock and fear about this news as I believe God and must be a missionary for Christian belief.
Chinese government treat me as a dangerous person as I said to the government officials that the prevailing corruption such as bribery, squander public funds, and affair of love out of marriage were sins. For the wages of sin is death; but the gift of God is eternal life through Jesus Christ Our Lord. Those who don’t confess must be punished by God and go to hell. I said the Chinese three-self patriotic church was not a real Christian as they didn’t encourage spreading gospel and were politically cheated. My comments offended the authority and made them a dirty sham so they treated me as a person who uses religion to oppose Communist authority through inflaming turmoil.
The persecution during my detention
The second day of my detention, I refused to confess so the police hit me by electrical baton. I was put into a small room with a few unknown people there (I had no idea if they were detainees or police in plain [clothes]). They covered my head and beat up, burned my arm with cigarette butt. They laughed at me and said who you don’t let the God to save you now. They spit on my meal and insulted me. At the time, I didn’t understand why but later I realized and confirmed that it was the police who implied detainees and the secured of detention to persecute me and the police often did so to avoid any persecuting evidence left on detainees.
After I arrived in Australia, my family was harassed by police and biased in community however worrying about me they hate to keep me well informed about the details. They don’t want me return as they couldn’t provide me an effective protection and fear to be more affected. After my constant enquiry I realize they are under political pressure now. I hope my real circumstance can be thoroughly and fairly reconsidered by the [T]ribunal.
I received as evidence the book of relevant documents filed on 31 May 2010.
Submissions
The applicant made oral submissions in which he reaffirmed his protection visa claims, including his Christian faith, and asserted the truth of everything that he told the Minister’s delegate and the Tribunal. The applicant asserted that his Christian faith would not permit him to lie and that he had taken the oath at the Tribunal hearing to tell the truth. He noted that he had on several occasions been invited by the Tribunal’s presiding member to put forward anything else that he had not revealed previously. He is concerned that when he did so he was disbelieved.
The Minister submits that the application seeks merits review as the applicant is merely expressing disagreement with the Tribunal’s conclusions. The Minister further submits:
Order 3 suggests that the applicant takes issue with the way in which the RRT questioned him at the hearing. However, this again appears to be no more than a complaint about the conclusion reached by the RRT that the applicant was not a witness of credit, rather than any allegation of actual or apprehended bias, or improper behaviour during the hearing by the Tribunal member. Insofar as the applicant may intend this to be such a complaint, it is entirely lacking in particulars.
The RRT carefully explained the basis upon which it concluded that the applicant was not a witness of truth at [100] to [108] of the reasons for decision. This conclusion was entirely open to the RRT on the basis of the many inconsistencies and omissions at various points in time while the applicant was providing information either to the Department or to the RRT.
In these proceedings, the applicant has filed a further affidavit on 28 June 2010. The contents of that affidavit raise further matters which were not previously raised either before the Department or the RRT. The affidavit is objected to on the grounds of relevance. It is noted that the affidavit does not raise any matter which might be considered to be any further basis for a ground of review.
Reasoning
The analysis of Tribunal decisions for jurisdictional error is principally concerned with issues of process rather than outcome. It is frequently necessary to explain to applicants that the Court cannot decide on the veracity of their protection visa claims. The issue before the Court is whether the Tribunal fell into jurisdictional error. To the extent that the applicant disagrees with the merits of the Tribunal decision, the Court cannot assist him.
The applicant, both in his application and in his oral submissions, took some issue with the way in which he was questioned at one or both of the Tribunal hearings. To the extent that the applicant is referring to the invitation by the presiding member for him to say anything that he might have omitted, that was simply an attempt by the Tribunal to draw the applicant out. It is desirable for the Tribunal to attempt to ensure that applicants have the opportunity to tell their whole story. The problem in this case was that when so invited, the applicant put forward additional claims of substance that had not been previously mentioned. That turned out to be the determinative factor in the Tribunal’s reasoning.
The Tribunal’s conclusion is set out at [100] of its reasons on page 159 of the court book:
In the Tribunal’s view, the applicant has not provided a truthful account of his experiences in China. Whilst the Tribunal accepts that the applicant attended registered Churches in China and identifies himself as a Christian, it does not accept that the applicant came to the attention of the authorities for preaching Christianity or his dissatisfaction with the local authorities or for attending illegal gatherings. It follows that the tribunal does not accept that the applicant was warned by the authorities for preaching Christianity, that he was almost arrested at the end of 2008, that he was detained for 7 days in February 2009, that he was dismissed from his employment in April 2009 for proselytising or evangelising, that the authorities were looking for him prior to him coming to Australia or that the Chinese authorities are still looking for him. The Tribunal also does not accept that there is real chance the applicant would face persecution as claimed if he returned to China. The Tribunal’s reasons follow.
The Tribunal went on to explain its conclusions. The Tribunal was concerned that the applicant had changed his evidence in significant respects over the course of the processing of his application. The Tribunal gave as an example that it was only at the second Tribunal hearing that the applicant claimed he had attended illegal gatherings of seven to 20 people and that he was almost arrested at the end of 2008 or that the police went to see his wife when he was preaching, and that this was the reason he asked his friend to help him go overseas. It was only at the interview with the Minister’s delegate that the applicant claimed that in February 2009 the Chinese authorities arrested him in his house, detained him for seven days and that he left his employment and only later did he claim he was dismissed.
The applicant’s written statement is reproduced on pages 28 and 29 of the court book:
Date 26/08/2009
My Statement
I am … from P.R China. I was born on … . As a Christian, I am writing to you to apply for my protection visa as I have been facing persecution by Chinese Government before when I was in China. I would like to present my personal situation and status as following.
Being as a Chinese Christian, I had very hard experience when I was in China. Over there, Christians are facing persecution by Government authorities. The human rights are challenged against Christian group any time.
In current China, Christian group have becoming fast developed over the Country. Many Christian gathering and I personally seen that some of Christians were arrested and even tortured in jail. I have been questioned by local police when I participated in the campaign in china. Government crackdowns our Christians’ activities as they are fear of our power making people gathering. I have been a honest Christian for over years and I truly believed God is in my heart to lead my spirit into haven.
When I come into Australia, I was deeply impressed by this country’s freedom and harmony atmosphere in protecting religion. As a Christian, I am very happy to be part of the society and especially in the Christian group here. People here enjoy freedom and democracy. Christians here have enough encourage in cultivating their belief. Unfortunately China is a different story. I do really enjoy the multiple cultural society of Australia and wish to realize my dream of the similar living environment in China.
I was a chef in Shenyang city … of Liaoning province from 2007, before I came to Australia. I have been doing hard in my job while evangelizing Christian and Jesus to my colleagues and clients who shown an interest in Christians. I have made a lot of friends through Christian campaign and we are all happy and helpful with each other.
However, in April 2009 I have been informed by our local authority that “you can only believe, but you can’t evangelize”. The bible commands us to preach the gospel. So, I didn’t stop to evangelize until a day I received an official warning from my boss requesting me to stop evangelizing immediately or I will be dismissed. In addition, my family had been requested to report my Christian activities as well.
Although Chinese Authorities keep on saying that “In China, no one is to be punished due to their religious belief” and “citizens of the People’s Republic of China enjoy freedom of religious belief” according to the Chinese constitution. The reality is so different.
Because of my religious activities, I have been monitored and in every respect of life. To avoid further threat in China, I tried all my best to get my Australian entry visa by bribing people in China. I tell myself that I must get out of this country to protect my belief and security for rest of my life. Now I am fear of returning to China.
I have lost my confidence living under pressure in China. I love Australian community and aspire to freedom of human right and freedom. I stick to my decision of moving and settle down in Australia for rest my life.
Finally, I would like to once again express my heartfelt gratitude to you for your understanding and help. Due to the limited time and English, I can not provide you with more evidence at present; however I will provide you with more information later.
It is possible to read the third paragraph of the statement as containing within it a clue to the claims that were later made of the applicant being detained and questioned after arrest and of him having participated in unlawful gatherings, but it is hard to understand why the applicant would refer to the harm suffered by others and only reveal later the harm suffered by himself.
The applicant also had difficulty in reconciling his initial claim that he was threatened with dismissal from his employment with his oral evidence as to his dismissal from employment in April 2009, having commenced work there in March 2007 and the documentary evidence he provided in the form of a witness letter reproduced on page 105 of the court book which states that he commenced work at the restaurant on 10 January 2007. That inconsistency was an additional concern for the Tribunal.
The Tribunal questioned the applicant at some length about his knowledge of Christianity. That needs to be seen in the context of the delegate’s decision, wherein the delegate had not accepted that the applicant was a Christian at all. The Tribunal was more generous and accepted that the applicant was a Christian[1], and accepted that he had continued to practice Christianity in Australia and not solely to enhance his protection visa claims. However, the Tribunal reasoned that the applicant’s Christian faith was essentially passive as part of the officially recognised Christian churches in China. The Tribunal reasoned that the applicant had not, and would not in the future, participate in underground Christian activity that would bring him to the adverse attention of the Chinese authorities. That conclusion was open to the Tribunal on the material before it.
[1] or at least that he attended church and identified himself as a Christian
The problem for the applicant, as demonstrated even up to the time of today’s hearing, is that his claims, like the church calendar, became a moveable feast. While the Tribunal presiding member was more generous than the delegate had been, it would have required a generosity of spirit sufficient to catapult the presiding member into the communion of saints to accept uncritically all of the changes to the applicant’s claims that he made over time. That was, frankly, unlikely.[2] The continual elaborating and clarification of the applicant’s claims weakened rather than strengthened his case.
[2] In ambiguis orationibus maxime sentenia spectanda est ejus qui est protulisset
The Tribunal followed a fair process, purportedly pursuant to s.424AA of the Migration Act 1958 (Cth), of disclosing its concerns about the later augmentation of his claims at the Tribunal hearing. Whether or not that was strictly necessary for the purposes of s.424A, it served the purpose of ensuring that the applicant understood the essential and significant issues upon which the Tribunal decision was likely to turn. By following that procedure, the Tribunal ensured that it met its obligations under s.425 of the Migration Act.
The applicant sought to explain the changeability of his claims to the Tribunal, but his explanation was not accepted. The adverse credibility conclusion reached by the Tribunal was open to it on the material before it. It was not simply the recent augmentation of his claims that justified that conclusion. It was also the inconsistency between his written and oral evidence of his employment and the witness letter, and the fact that although the applicant claimed to have proselytised in China, he had not done so in Australia.
I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will also order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 August 2010
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