SZORL v Minister for Immigration - [2011] FMCA 146

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 146

MIGRATION – RRT decision – Chinese applicant claiming persecution for participation in a house church – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & Citizenship v SZJSS [2010] HCA 48
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50
Re RRT & Anor; Ex Parte H (2001) 179 ALR 425

First Applicant:

SZORL

Second Applicant:

SZORM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2193 of 2010

Judgment of:

Smith FM

Hearing date:

1 March 2011

Delivered at:

Sydney

Delivered on:

1 March 2011

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2193 of 2010

SZORL

First Applicant

SZORM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife, who are nationals of the People’s Republic of China. The wife arrived in Australia in March 2008 on a student guardian visa. Her visa expired in January 2009, and she remained unlawfully in Australia until lodging a protection visa on 24 February 2010. The husband arrived in Australia in May 2008 on a tourist visa, which soon expired, and he also remained unlawfully. Only the wife claimed to have suffered persecution in China and to fear persecution if they returned. I shall refer to her as ‘the applicant’.
In a statement attached to the protection visa application, the applicant said that after she married her husband she had joined home church gatherings conducted by her mother-in-law in a remote mountain village. She said she “became a sincere Christian”, and participated in the house church service “hosted by my mother-in-law each Sunday”. She also read the Bible and spread the gospel to her friends. She said this activity “gradually attracted the attention of the police and village cadres”. In October 2007, the police suddenly burst into the house one Sunday, and she was detained at the police station and accused of organising an illegal church gathering. She received a brutal beating and suffered a miscarriage as a result. At the hospital, she was coerced into admitting that this was the result of a natural incident; however, she was required to pay a fine, as was her mother-in-law.
She said she started making an application to visit Australia as a student guardian of her son, in January 2008. She said “as I had no friends or relatives here, it was some time later before I found the Grace Chinese Christian Church at Campsie”. She then regularly attended church services. She said she could not return to China because of the “ongoing persecution against house church believers there”. She presented a statement signed in February 2010 by the pastor of her church, confirming that she and her husband had been attending church. She also submitted a medical certificate as to “unavoidable miscarriage” after being admitted from a “police station”. She submitted a statement from her mother-in-law, and a number of similarly worded statements from other relations and supporters in China.
A delegate interviewed the applicant on 21 May 2010, and made a decision on 25 May refusing the visa applications. The delegate identified inconsistencies in the applicant’s account of events, and thought that it was “lacking in credibility”. The delegate noted that a “clear police certificate” had accompanied the student guardian visa application, and that the applicant had been able to leave China legally on her own passport. The delegate also noted the substantial delay in making an application for a protection visa in Australia. The delegate accepted that she “might be a Christian with some level of involvement in the Grace Evangelical Church in Australia”, but was not satisfied that she had experienced persecution or would face a real chance of persecution if she returned to China.
The applicants appealed to the Refuge Review Tribunal, and attended a hearing on 18 August 2010. The applicants also submitted another statement from the Local Church. A transcript of the hearing is not in evidence, and I rely upon the description of the hearing given by the Tribunal.
The Tribunal described how it questioned the applicant about where she had been living, and it emerged that much of the time this was in a city away from her mother-in-law’s village. The Tribunal questioned the applicant about events in China, and why she had obtained her passport before the incident to which she referred. The Tribunal also put to the applicant a number of concerns which later formed part of its reasoning.
The applicant told the Tribunal that she had only been baptised recently in Australia, and that she had attended some services in a registered church in China. The Tribunal discussed the corroborative documents submitted by the applicant:
48. Asked how she had obtained the letters submitted to the Department the Applicant said they were posted to her by members of her family church. Asked if each one of them had written a letter and posted it separately she said she only knew that they wrote them. She said she did not know how they gave them to her younger brother but went on to say they were given to a worker in her brother’s factory to pass on to him. Her brother asked a staff member to post them to her, in a single envelope. I put to her that all the letters seemed to follow a similar format, and that this could cast doubt on their genuineness. She said the writers were not very well educated. They only gave their own opinion, focusing on the incidents which had happened to her and how she was persecuted.
49. I asked the Applicant why the authors of the letters would take the very large risk of identifying themselves as Christians, involved in an illegal household church, by including details of the identity cards. She said that if they had not included their identity details the Tribunal would not have known who had written the letters. She agreed it was dangerous for them to have included their details in this way but suggested that they may have believed the government would not see the letters.
50. I put to the Applicant, with regard to the letters and the hospital document she had submitted, that independent country information before the Tribunal indicated that falsified or fraudulent documents are easily obtained in China and are often used in immigration or protection cases. She said she had no comment to make on this information.
The Tribunal made a decision on 13 September 2010, affirming the delegate’s decision. In its findings and reasons the Tribunal said that it was not satisfied as to the credibility of the applicant’s claim to have suffered harm in China because of her involvement with an underground church.
The Tribunal said that her evidence about the gatherings in her mother-in-law’s house was “vague and largely uninformative”. It said that she did not give an impression that she was “speaking from first-hand knowledge”. It said that there were “further inconsistencies and implausibilities” in her account of persecution by local authorities, and it explained what they were. The Tribunal thought that the obtaining of a Chinse passport prior to the persecution, and her departure from China using her passport “just six months” after being arrested, and her failure to seek protection in Australia immediately on arrival, were inconsistent with her claim to have suffered and to fear persecution.
The Tribunal said that it was “prepared to accept that, together with her mother-in-law, she may have been involved in some form of Christian worship, and is in fact a Christian”, but it was not satisfied that this activity “found its expression in an underground church”. It considered, on the evidence that had been given to it, that they “may have attended one or more of the registered churches in the area”. The Tribunal did not accept that the applicant had a “significant objection” to worship in a registered church.
The Tribunal noted that the applicant had, in recent times, been involved in worship at the Grace Evangelical Church in Campsie, and gave the applicant “the benefit of the doubt” that this attendance had been undertaken otherwise than for the purpose of strengthening her claim to be a refugee. However, the Tribunal was not satisfied that she had previously suffered harm by reason of membership of an illegal underground church in China. It thought that she had practised her faith in registered churches, and did not accept that she would “worship in any other way if she were to return to China”. It was not satisfied there was a real chance she would suffer serious harm amounting to persecution if she returned.
The Tribunal explained how it had considered the documents presented by the applicant:
66. I have reached these conclusions having taken into account the letters said to have been written by the Applicant’s mother-in-law and her other co-religionists in China as well as the document said to be a medical certificate relating to her miscarriage. As put to the Applicant at the hearing, the independent country information indicates that forged or otherwise fraudulent documents are readily available in China. Further, I am not satisfied that her account of the provenance of the documents, through a circuitous link to her younger brother, was plausible. The letters said to be from other members of her underground church give a strong impression of having been prepared to a common blue print. Finally, I am not satisfied it is plausible that these people and her mother-in-law would take the obvious risk of incriminating themselves by stating their involvement in an illegal underground church and also including in the letters an imprint of their identity cards. For these reasons, and because I do not accept the Applicant’s claims to have been harmed for involvement in an illegal underground church, I am not satisfied that any evidentiary weight can be placed on these documents.
The Tribunal concluded that it was not satisfied that the applicant wife was a person to whom Australia owed protection obligations, and the applicant husband, therefore, could not satisfy the criterion as a secondary applicant.
The applicants now ask the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been fully believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s grounds were set out in her original application:
1.In China, I have been a Christian attending house church gatherings. I read the Bible and spread the Gospel to my friends. I also invited my work colleagues and friends to our house church gatherings. In October 2007, the police raided our gathering and arrested all of us. I was severely beaten, which caused a miscarriage. After paying RMB 10,000 I was released. After my arrival of Australia, I have continued Sunday service. I have provided supporting documents and evidences.
2.In the decision, the Tribunal Member, Andrew Mullin said: “Having considered the information provided by the applicant I am not satisfied that she was a member of an illegal underground church in China or she ever suffered harm for such a reason”.
3.The Tribunal Member has a bias against me and did not take all of my claims, supporting documents and evidences in account according to S91R of the Migration.
4.The Tribunal Member made jurisdictional error while considering my application for a protection visa.
These grounds have not been explained, nor improved, by way of an amended application or written submissions. Only the third ground asserts grounds of jurisdictional error, and it does so in an unhelpful manner due to its lack of particulars. Otherwise, the applicant’s contentions made in the application, and indeed in her oral submissions today, maintained only that the Tribunal had made an incorrect decision on the merits of the matter, and invite the Court itself to address whether the applicant is a refugee. However, these arguments do not provide me with grounds for giving relief to the applicant.
In relation to the allegation of bias, I invited the applicant to explain why she believed that the Tribunal member had been biased against her. The applicant referred me to the Tribunal’s treatment of her corroborative documents, and suggested that it had been unfair for the Tribunal to doubt the contents of those documents without further investigation.
However, I do not consider that the discussion of this at the hearing, or the Tribunal’s ultimate assessment in its statement of reasons, provides any evidence of a closed mind prior to decision. I consider that the Tribunal’s assessment of that material was performed consistently with authority in the Federal Court (see Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50). Its ultimate reasoning about the documents provides no evidence of a closed mind prior to decision (see Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, and Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 at [44]).
It is also possible that the applicant felt unhappy about the hearing due to the questioning of the Tribunal which, at times, must have appeared to doubt her credibility. However, it was the statutory duty of the Tribunal to ask questions of the applicant and to test her case, and the description of the hearing which is in evidence before me shows the Tribunal doing no more than that. I am certainly not satisfied that anything occurred at the hearing which might give rise to an apprehension of bias in a fair-minded lay observer, according to the principles in Re RRT & Anor; Ex Parte H (2001) 179 ALR 425.
I have been unable to identify any claim or evidence presented by the applicants which was not considered by the Tribunal. In my opinion, its conclusions were open to it on the material considered by it.
Taking into account all that the applicant has said to me today, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 9 March 2011