SZOKN v Minister for Immigration

[2010] FMCA 612

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKN v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 612

MIGRATION – Review of decision of RRT – where applicant claimed fear arising out of association with his wife’s church group.

Migration Act 1958 (Cth), s.91R(3)

NARE v Ministerfor Immigration [2004] FCA 554
SZDFO v Minister for Immigration [2004] FCA 1192
SCAA v Minister for Immigration [2002] FCA 668

Applicant: SZOKN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1069 of 2010

Judgment of: Raphael FM

Hearing date: 5 August 2010

Date of Last Submission: 5 August 2010

Delivered at: Sydney

Delivered on: 5 August 2010

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1069 of 2010

SZOKN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 10 December 2009 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 4 January 2010.  On 20 January 2010 a delegate of the Minister refused to grant a protection visa and on 22 January the applicant applied for a review of the delegate’s decision.  The applicant had been taken into detention upon his arrival in Australia because he was carrying a false passport.  He attended two hearings before the Tribunal which on 20 April 2010 determined to affirm the decision not to grant a protection visa.  He was notified of that decision in accordance with the appropriate provisions for persons in detention and via his migration agent.

2. The grounds upon which the applicant claimed he was a person to whom Australia protection obligations arose out of his conversion to Christianity.  Although he was born into a Christian family he did not appear to have had much connection with the religion until he married a Catholic woman in 1983.  His wife told him that he could not marry her unless he converted.  He agreed to do so but he was never baptised.  The events which caused him to believe that he should leave China for his own safety appear to have commenced in about 2006 when his wife started a home church in their village.  The applicant was, at that time, as he had been ever since their marriage, working away from home quite a bit.  He did not go regularly to the home church run by his wife because he was frequently away. 

3. There were no problems until about February 2008 when complaints were made in his village about the meetings that were taking place and his wife began to be questioned by the village authorities.  She told them she could not attend the registered Catholic Church because there was not one in her village.  The harassment did not stop and his wife was advised that the meetings she was holding were illegal and were disturbing social harmony.  When the village committee came round to his wife’s house at times when he was present he would always argue with them and he began to obtain a reputation for being difficult.  He feared that he would be detained.  In April 2008 he took out a passport.  His wife tried to get a passport at the same time but was unable to because of her religious activities.

4. The applicant told that in October 2009 the situation became worse.  He was at home for a national holiday when on 6 October local officials came to his house and threatened to detain his wife.  He had an argument with them to try and prevent them from doing this.  A lot of neighbours joined in.  The officials called the police.  He argued with the police to stop them taking his wife.  The police told him he had a bad attitude and that he had assaulted them so they intended to arrest him.  Because of the intervention of neighbours they did not do so.  He left the house that day but returned a couple of days later on 8 October when his wife said that the police were still interested in arresting him so he felt that it was too dangerous for him to stay in China and he approached a people smuggler.  He paid a very large sum of money to the people smuggler to make arrangements for him to leave the country.  He told that he wanted to go to Canada but the people smuggler explained that he could only go to Australia.  He felt that if he returned to China he would be arrested and persecuted. 

5. The Tribunal’s decision record deals at considerable length with the discussions between the applicant and the delegate and then proceeds to deal in equal length with the two Tribunal hearings on 26 February and 10 March.  The Tribunal questioned the applicant upon his story and discussed with him the contradictions that it had found.  At one stage the applicant told the Tribunal about some land issues and some family planning issues which he had but at [91] [CB 184] the Tribunal notes that the applicant told it that he was not claiming a fear of persecution because of these issues and was relying on the claim that he would be persecuted because of his involvement with an underground Catholic group which had been organised by his wife.

6. At [95 - 97] [CB 184 – 186] the Tribunal explains why it came to the view that the applicant was not truthful or credible in relation to his convention claims.  It accepted that his wife was a Catholic but came to the view that because the applicant had never been baptised it could not be satisfied that he was a Christian or that he ever converted to Catholicism in China.  It came to the view that the applicant was not interested in the Christian religion prior to coming to Australia.  It found that his explanation of how he converted to Catholicism to be vague. 

7. One of the concerns which the Tribunal held about the applicant’s story concerned the fact that whilst his wife was being accused of running an underground church he gave evidence that she had frequently gone to the official church and took her mother there on Sundays.  This seemed to the Tribunal to be at odds with the statement that there was no official church in their village. 

8. The Tribunal also considered that the applicant’s evidence about what occurred on 6 October 2009 was not credible because it took the view that if he really had acted as badly as he said he had then he would have been arrested, but he was not.  The Tribunal also did not understand why his wife had not been arrested, she seemed to be the prime mover in these religious activities. 

9. Finally, although the applicant had arrived in Australia using a false passport, he had taken out one of his own out and had, in fact, left China on that passport.  The passport had been taken by him by a snake head in Thailand.  The Tribunal took the view that if the applicant really was a person of interest to the Chinese authorities he would never have been allowed to depart on his own passport. 

10. On 17 May 2010 the applicant filed an application for a review of the Tribunal’s decision with this court.  His grant of application states:

    “The decision is effected by jurisdictional error.”

    Continuing -

    “The Tribunal erred in failing to properly take into account and correctly interpret all of the evidence I gave at the Tribunal hearing.  Specifically the Tribunal incorrectly interpreted the evidence I gave in regards to the precise circumstances in which I explained that my wife attended the official Catholic Church in China.”

11. Nothing I have heard from the applicant, nor anything that he wrote to the court on 15 July, indicates a complaint about the interpretation.  It is a complaint about the Tribunal’s understanding of his evidence.  Today he explained that he felt that the Tribunal’s consideration of his application was unfair.  He told me that he had told the truth to the Tribunal and he did not understand why the Tribunal did not believe him.  The applicant commenced his submissions to this court by trying to explain why he had not been baptised and continued with an explanation for some of the other concerns expressed by the Tribunal.

12. I explained to the applicant after some time that this court was not in a position to substitute its views about the facts of his case for those of the Tribunal and that even if a court such as this came to the conclusion that he had in fact been telling the truth or that it was more likely than not he had told the truth this would not assist him because the Tribunal was the sole arbiter of that matter and unless he could establish that the Tribunal came to its views by committing some of the jurisdictional errors of the types referred to by Allsop J in NARE v Ministerfor Immigration [2004] FCA 554 at [10]. Which I had read out to him, there was little this court could do to assist him.

13. When the applicant comes to consider this decision and make a further decision as to whether or not to appeal it I would also suggest that he takes into account the views expressed by Allsop J again in SZDFO v Minister for Immigration [2004] FCA 1192 at [8] to [12] which I will not repeat here but which expand and perhaps clarify the views referred to in NARE. 

14. The applicant told me that he believed that the Tribunal had acted unfairly towards him because of two comments which he told me that the Tribunal had made. The first was that the Tribunal had told him that it believed that he had only gone to church in Villawood every day to put on a show for the detention centre officers. The second was that if the Tribunal came to the conclusion that he did not have a case for a protection visa then he would have to return to China and it’s clear from the concern with which the applicant told me of these matters that he was effectively arguing that the Tribunal was either actually biased or could be considered to be ostensibly biased. The difficulty which I have with his submissions are that he has not provided me with any evidence that will confirm that these statements were made and it could be that in regard to the comments about him going to church in Villawood that he misinterpreted the Tribunal’s discussion with him of the effects of s.91R(3) of the Migration Act 1958 (the “Act”)..

15. In regard to the statement about him returning to China this does not seem to me to indicate anything more than a statement of fact.  If the applicant was suggesting that the Tribunal had indicated to him that it intended to find that he did not have a case for a protection visa that would also not be evidence of bias because what the Tribunal says at the end of two hearings and a lengthy consideration of the claims cannot indicate a state of mind committed to a conclusion or so committed to a conclusion already formed as to be incapable of alteration; SCAA v Minister for Immigration [2002] FCA 668 per Von Doussa J at [36].

16. The Tribunal has provided the applicant with a very lengthy decision record in which his evidence both to the delegate and to the Tribunal is carefully rehearsed.  Its short explanation of its findings contrast with the length of the histories and that may have caused the applicant to wonder why that history had not been accepted.  Perhaps the applicant would have been more satisfied if the Tribunal had basically accepted most of his story but come to the conclusion that it did not evidence a well founded fear of persecution because if anyone in his family had concerns, it was his wife rather than him, but this does not alter the fact that the manner in which the Tribunal did come to its conclusions seemed to me to be entirely without error outside jurisdiction and therefore the application must be dismissed.

17. The Applicant is to pay the First Respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  12 August 2010