SZONF v Minister for Immigration

[2010] FMCA 774

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONF v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 774

MIGRATION – Review of RRT decision – applicant a citizen of China – where applicant alleged that inconsistencies in her evidence to delegate was a result of misunderstanding by delegate – where Tribunal relied on independent country information to find that applicant would not face persecution for her religious beliefs – where bias alleged without particulars – grounds essentially seeking merits review.

Migration Act 1958 (Cth), s.424A

SBBS v Ministerfor Immigration (2002) 194 ALR 749
Minister for Immigration v SZNPG [2010] FCAFC 51
SZJBD v Ministerfor Immigration [2009] FCAFC 106
Abebe v Commonwealth (1999) 197 CLR 510

Applicant: SZONF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1486 of 2010

Judgment of: Raphael FM

Hearing date: 30 September 2010

Date of Last Submission: 30 September 2010

Delivered at: Sydney

Delivered on: 30 September 2010

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant shall pay the First Respondent’s costs assessed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1486 of 2010

SZONF

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

   
   

   17 August 2009.  On 3 November 2009, she applied to the Department of Immigration and Citizenship for a protection (Class XA) visa.  On 11 February 2010, a delegate of the Minister refused to grant a protection visa and, on 9 March 2010, she applied for a review of that decision from the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal during the course of which she made certain criticisms of the hearing before the delegate. 

2. On 30 April 2010, the Tribunal sent to the applicant a letter pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”), indicating that the Tribunal had listened to the tape of the delegate’s interview. The applicant responded to the letter by way of statutory declaration dated 25 May 2010. On 9 June 2010, the Tribunal determined to affirm the decision not to grant the visa and handed down the decision on the same day.

3. The applicant’s claims to be a person to whom Australia owes protection obligations were based on the Convention ground of religion.  At [60] [CB 127] the Tribunal sets out in short form the nature of those claims.  It reports that the applicant had a grocery shop which was closed down by the Chinese Government without proper compensation.  The applicant’s marriage broke down because her husband left their home area to work elsewhere.  The applicant became unemployed and moved to a different area of China and worked in a grocery shop there.  She met a Mr S, who was a friend of the owner of the grocery shop and was a pastor in the True Jesus Church.  He had fled to this area because he had been blacklisted by the government and was in hiding.  The applicant claims that she converted to the True Jesus Church and set up Bible study sessions.

   “The applicant claims that she was arrested whilst walking with Mr S and, although the police had no evidence that she was involved with the True Jesus Church, she was detained for two months and not released until June 2009 and then sent to a labour camp.  The applicant claims that following her release she was required to report to the authorities weekly and was not allowed to go anywhere without the permission of the police.  The applicant claims that the grocery shop was sealed and the owners dared not return to Yunnan.  The applicant claims that she went into hiding in Fujian at a friend’s home and with the assistance of her family obtained a false passport. 

   The applicant claims that she was smuggled out of China and left Hong Kong on an unknown passport.  The applicant claims that she travelled to Fiji with a “snakehead” and that she departed Fiji on a false British Overseas Citizen passport.  The applicant claims she is considered as a ‘key member’ of the True Jesus Church and she is on a ‘black list’ in China and that other persons who have been involved in the True Jesus Church at study gatherings with her in Yunnan have been arrested.  The applicant claims that her home in both Fujian and Yunnan have been searched and her family is under investigation.  The applicant claims that she fears future arrest and detention if she returns to China.”  [60] [CB 128]

4. The Tribunal dealt with the applicant’s claims in the subsequent paragraphs of its findings and reasons.  It first dealt with her central claim about having been arrested.  At [63] [CB 128] the Tribunal concluded that it could not accept the truth of the applicant’s story.  It found that it was not credible that she should be arrested merely for walking in the street with Mr S, with whom she was questioned by the police who were searching at the time for an escaped detainee.  The Tribunal could accept the applicant’s claim that Mr S had been recognised by the security officers as a blacklisted person from another province. 

   “As discussed with the applicant during the hearing, her evidence to the Tribunal was that she and all the people who were involved in her gatherings were on the blacklist, and that this would indicate that many thousands of people would be on a blacklist in China.  In such circumstances, the Tribunal considers it highly lacking in credibility that the police in Yunnan would recognise Mr S from a computerised blacklist of wanted persons that could contain many thousands of people whilst he and the applicant were walking home at night.  Thirdly, the Tribunal considers it not credible that Mr S would be on the blacklist because of his role as a preacher with the True Jesus Church.  As discussed extensively with the applicant during the Tribunal hearing, the independent evidence above indicates that there are many thousands of members of the True Jesus Church in China;  it has its own website and appears to be permitted to operate relatively freely.”

5. In this way, the Tribunal dismissed the applicant’s main claim to have been arrested, detained and tortured, and to fear a repeat of this occurrence should she return.  In its subsequent paragraphs, the Tribunal considered some other matters which indicated to it that the applicant was not a witness of truth.  At [65] [CB 129] it refers to inconsistency in her evidence concerning the distribution of pamphlets.  The inconsistency arose between her evidence before the delegate and the Tribunal hearing. 

6. It was in this regard that the applicant stated that she did not believe that her story had been properly translated or understood by the delegate, and it was for that reason that the Tribunal listened to the delegate interview and sent the applicant the s.424A letter. The Tribunal considered the applicant’s response, but did not accept it. At [67] [CB 130] the Tribunal considers whether there were other grounds upon which the applicant might claim protection arising out of the loss of her shop or the break down of her marriage. It concluded that there was no Convention related basis for those matters.

   “The Tribunal does not, therefore, accept that the applicant has suffered harm for a Convention reason due to the breakdown of her marriage, the closure of her grocery store in Fujian, the government’s unwillingness to provide her with compensation, or due to the fact that she was forced to move to Yunnan to seek employment.  The Tribunal also does not accept that there is any evidence indicating that the applicant will be denied the ability to earn a livelihood in China on her return, particularly given the evidence indicating that she has previously opened her own grocery store and successfully obtained employment again after the closure of that store.”

7. The Tribunal is also critical of other matters contained in the applicant’s history.  In particular, it referred to the obtaining of a false passport and the applicant’s inability to explain how she left China and on what passport, [68] [CB 130].  The Tribunal was critical of the applicant’s delay in seeking a protection visa for over three months, [69] [CB 131].  At [70] [CB 131], the Tribunal accepted, with some hesitation, that the applicant was indeed a member of the True Jesus Church in China and that she had genuinely continued with her worship at the True Jesus Church in Sydney. 

8. It considered whether or not membership of the church and continued practice was likely to cause her persecution should she return to China and concluded, based upon independent country information that it had discussed with the applicant that, whilst the church was subject to monitoring by Chinese authorities and subject to some restrictions, there was no evidence she could not continue to participate in the gatherings and other activities associated with the church should she return.  The Tribunal had not accepted that the applicant was a “key member” of the church or that she was detained or arrested because of this and therefore concluded that she would not be harmed for any Convention reason should she return. 

9. On 6 July 2010, the applicant filed a request for review of the Tribunal’s decision with this Court.  She indicated in the paragraph entitled “Orders Sought by the Applicant”:

   “1. I disagree with Immigration and RRT’s decision.  They did not consider that I will be in danger if I return.

   2.  RRT did not consider that I will be persecuted and in big trouble if I return home. 

   3.  RRT member questioned me at hearing.  Made me feel very up – sad (sic).  They never trusted me and I do not think they have the right attitude to my application.  RRT should grant my application.”

10. Under the heading, “The Grounds of the Application Are”, she wrote:

    “1.     I am a Chinese citizen and Christian who has been persecuted by the Chinese government.  I have been arrested by the corrupted government and police. 

    2.  I cannot go back to China since I am very scared to be sentenced. 

    3.  The Chinese government still looks for me if I return.  My friends told me not to go back since the police are still looking for me.”

11. As explained to the applicant, this Court cannot provide her with merits review of the Tribunal’s decision.  The Court is required to find some jurisdictional error in the manner in which the Tribunal reached its conclusions.  Of the three numbered paragraphs in “Orders sought by the applicant”, the first two seem to be argumentative with the Tribunal’s decision.  The third could be considered to be a claim that the Tribunal was biased.  It is treated as such by the respondent.  It reminds the Court that an allegation of bias is a serious matter which must be clearly alleged and proved:  SBBS v Ministerfor Immigration (2002) 194 ALR 749 at [43]. The Minister reminds the Court that only in rare cases can a finding of bias (actual or apprehended) be established merely on the basis of the Tribunal’s written statements of reasons: Minister for Immigration v SZNPG [2010] FCAFC 51 at [18] per North and Lander JJ. The Minister reminds the Court that only in extreme cases will a conclusion that the Tribunal has acted in a manner that demonstrates either actual or apprehended bias be justified: SZJBD v Ministerfor Immigration [2009] FCAFC 106 at [81] per Buchanan J. The applicant has not provided the Court with any particulars of the bias alleged, either by way of written submissions or in her oral submissions.

12. In those oral submissions, she made much of the fact that the Tribunal had relied upon independent country information obtained from the web about the status of the True Jesus Church in China.  She does not dispute that that information is contained on the web;  she argues that it is not correct or reliable.  These are matters she should have taken up with the Tribunal, who debated them with her at length.  It is, after all, the duty of the applicant to satisfy the Tribunal that she is a person to whom protection is owed; Abebe v Commonwealth (1999) 197 CLR 510 at [187].

13. The three matters listed under the “Grounds of Application” do not indicate any jurisdictional error and are again matters that should have been, and probably were, taken up with the Tribunal.  As the Court has done in the nine years since it commenced exercising jurisdiction in these matters, it has read the Tribunal’s decision record, in full, for the purposes of considering whether there existed any unarticulated possible claims of jurisdictional error.  Whilst not claiming perfection in these matters and always being open to having error explained to it by those Courts above it in the judicial hierarchy, this Court is of the respectful view that no jurisdictional error is evident. 

14. In the circumstances, the application must be dismissed. The applicant shall pay the first respondent’s costs assessed in the sum of $3,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  7 October 2010