SZOSB v Minister for Immigration

[2010] FMCA 998

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 998

MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Catholic – disbelieved by Tribunal – no jurisdictional error established – 14 months delay in bringing application – unpersuasive explanation – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.36, 477

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
NABE v Minister for Immigration & Multicultural Affairs (No. 2) (2004) 144 FCR 1
Re RRT & Anor; Ex Parte H (2001) 179 ALR 425
SBCC v Minister for Immigration & Citizenship [2006] FCAFC 129
SZBEL v Minister for Immigration& Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZLSP v Minister for Immigration & Citizenship (2010) 187 FCR 362
SZMFJ v Minister for Immigration [2009] FMCA 771
SZNZI v Minister for Immigration [2010] FMCA 57
SZNZU v Minister for Immigration [2010] FMCA 197

First Applicant: SZOSB

Second Applicant: SZOSC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2293 of 2010

Judgment of: Smith FM

Hearing date: 15 December 2010

Delivered at: Sydney

Delivered on: 15 December 2010

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The application is dismissed as incompetent.

3. The first applicant must pay the costs of the first respondent in the amount of $5,865

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2293 of 2010

SZOSB

First Applicant

SZOSC

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicants apply to the court for orders of judicial review in relation to a decision of the Refugee Review Tribunal made on 23 June 2009. The application was brought in the Court on 22 October 2010, and therefore requires an extension of time under s.477(2) of the Migration Act. More than 14 months have elapsed since the expiry of the 35 day time limit, and the court has power to extend time only if it is satisfied that it is “necessary in the interest of the administration of justice to make the order”.  For the reasons which I shall explain, I am not satisfied that the applicants have established satisfactory explanations that give rise to such necessity, nor that the merits of the case point to the grant of an extension of a time.  I have decided that an extension should be refused, and the application dismissed.

2. The first applicant arrived in Australia in January 2008, travelling on a student guardian visa based upon his relationship with the second applicant.  She is his daughter who had arrived in Australia in July of the previous year.  Shortly before the expiry of his visa, a migration agent lodged an application for a protection visa on 18 December 2008.  The applicant and his daughter were identified as applicants, with only the applicant making claims to be a refugee.  I shall refer to him as ‘the applicant’.

3. No corroborative evidence for his claims was ever provided to the Department or the Tribunal, but a statement attached to the visa application made claims upon which the applicant claimed to fear persecution if he returned to the People’s Republic of China.  The applicant said he had been born “in a Catholic family” and that his uncle had spread the gospel to him.  His visa application stated his religion as ‘Catholic’.  He referred to working as a teacher in 1981 and being asked:

   by brothers and sisters to witness their baptism.  I then wrote an article named ‘Calls by God.’  The article was very popular at that time.  I was sent to detention centre because of this article.

4. The applicant referred to being beaten in detention and suffering a serious leg injury.  His statement said that he returned to teaching in 1985, and was sent to a primary school in a remote area but did not receive a regular salary.  His statement said he wrote another article in 2007, and that he was again detained, but:

   I was lucky that the brothers and sisters helped me out of the detention centre.  Thanks to God my daughter obtained her visa to Australia for study in June 2007 and came to Australia in July the same year. 

   He said he had obtained his visa with the help of police officers whom he had met in the remote area. 

5. The applicant was interviewed by a delegate on 9 February 2009.  The delegate made a decision refusing the visa application on 16 February 2009.  The delegate referred to country information suggesting that the position of worship in unregistered Catholic Churches in China had become “increasingly grey”, and that most Catholics were permitted to follow their religion, particularly in the province from which the applicant came.  The delegate said that he was not satisfied that the country information: “supports the applicants claim (that) Catholics who attend underground Churches are subject to persecutory treatment by the Chinese authorities in Fujian Province”.

6. The delegate also had doubts about the applicant’s credibility, because the details of his employment history in his protection visa application were inconsistent with his employment shown in the student guardian visa application, the correctness of which was confirmed by the applicant at interview.  The delegate also put significance on the applicant’s delay in applying for protection in Australia, and to the fact that the applicant had departed from China on his own passport with no apparent interest by the authorities.

7. The applicant filed an application for review in the Tribunal, appointing his migration agent to act for him, but requesting that correspondence be sent to his residential address, which was the same address as had previously been given to the Department. 

8. At least one letter sent to that address by the Tribunal undoubtedly was received and understood by the applicant, since it invited him to attend a hearing on 1 May 2008, which he attended.

9. A transcript of the hearing is not in evidence and I accept the description given by the Tribunal in its statement of reasons.  According to the Tribunal, the applicant told the Tribunal that the reason he had feared persecution was “because he was a Catholic and belonged to an underground congregation”.  He stated that members of the underground church in that location had been arrested in July 2005 and in his province “the Catholic priests had been arrested many times.”  The applicant referred to his background in a family in which his uncle had been a Catholic and whose house had been used as a “gathering site.” 

10. The Tribunal tested the applicant’s claimed association with the Catholic Church as follows: 

    53.    I asked the applicant to outline the major beliefs of the Catholic Church. He stated that Catholics worship the Virgin Mary. He stated that Christians worshipped Jesus but Catholics believed in the Virgin Mary. He also stated that Catholics do not believe in Jesus but they are very similar to the Christians. He claimed that Catholics worshipped statutes of the Virgin Mary whereas Christians looked to the cross as a symbol. He claimed that he grew up as a Catholic and was a leader of his local underground Catholic church. His parents had passed away and he lived in his uncle's home for a period of time. His uncle was a Catholic and a priest of the local church and had treated the applicant like a son. The applicant claimed that his children were also Catholics.

    54.    I asked the applicant to tell about the important beliefs of the Catholic Church. He referred to the 10 Commandments. He then told me that his uncle had gone out preaching in 1987 and had been arrested and beaten to death in prison.

    55.    I asked the applicant again what he understood to be the important beliefs of the Catholic Church. He stated that marriage is allowed for Catholics and that the Virgin Mary was very important in the church. Catholics believed that God created everything and the faith taught people to be good people, to contribute to society and that Almighty God was in heaven.

    56.    I asked the applicant where the underground church held their services and he told me that there was no particular place and that the venue changed from time to time. The members of the church would inform each other as to the venue. He stated that when the members gathered together someone would carry a statue of the Virgin Mary and it would be used for worship at whichever venue they attended.

    57.    I asked the applicant whether there were any prayers that all Catholics learnt and he stated that there was a prayer but it was not easy to say aloud and that prayers were said according to the individual. The prayer is said very quietly and then you crossed yourself and professed belief in the Virgin Mary. I put it to him that if he had been quite young as a Catholic he would be able to remember the words of such a prayer and he stated that it began with "I do believe in the Virgin Mary".

    58.    I asked him about rituals and whether he had been baptised. He claimed his uncle told him he had been baptised when he was young but he could not remember when this took place. The applicant claimed his children were baptised but was not able to give details of the baptism ceremony. He claimed that the meaning of baptism was that you became a Catholic and were recognised as a Catholic.

    59.    I asked about other rituals and he stated that communion was an important ritual and represented the last supper. He stated that he had never taken communion because a person had to be at a very high level of their Catholic faith before they took communion. He described communion as the swallowing of a piece of bread^- and drinking holy water as symbolic of the body. He stated that after communion a person felt the blessing of God and that it was very honourable to be able to take communion. He had not taken communion because he was not qualified.

    60.    He claimed that when he first came to Australia he did not attend church but after about 6 months he attended a Catholic Church in Ashfield and Flemington. After he found out about the church he attended every Sunday. He did not give specific details of his attendance.

11. The Tribunal also questioned the applicant concerning his employment history and personal circumstances, including his relations with his daughter since coming to Australia.  The Tribunal expressed a concern that the applicant had not appeared to have had meaningful contact with her since he came to Australia.  She had not attended the hearing with the applicant.

12. The applicant made unclear claims in relation to how he had been employed, suggesting that he had had a business income and interests.  The Tribunal questioned the applicant about his claims to have been persecuted in 1983 and his claims that further persecution had occurred in 2007.  The Tribunal put to the applicant concerns arising from his delays in leaving China after getting a visa and applying for a visa in Australia, and it put to him its difficulties with his claims based upon his confused and poor knowledge of the practices and beliefs of the Catholic Church.

13. The Tribunal made a decision on 23 June 2009 affirming the decision of the delegate.  In its statement of reasons it referred to the applicant’s claims and evidence. It identified two sources of its general information about the Roman Catholic Church.  It said:

    75.    The entry on the Roman Catholic Church in the 2007 Encarta Online Encyclopedia provides a basic description of the beliefs, practices, and history of the Roman Catholic Church ('Roman Catholic Church' 2007, Microsoft Encarta Online Encyclopedia 761573737 O/Roman Catholic_Church.html).  The Christianity in View website provides brief discussions of Catholic morality, and Catholic beliefs concerning death and the afterlife ('Sin & Moral issues' 2007, Christianity in View website, 23 January `Last Things' 2007, Christianity in View website, 23 January).

14. The Encarta online encyclopaedia referred to by the Tribunal does give some fairly basic information about the Roman Catholic Church.  For example, in relation to its sacraments, it states:

    The Eucharist is one of the seven sacraments, which are the most important liturgical rites of the church through which participants experience God’s love and power.  Catholics believe in the real presence of Christ in the Eucharist through the change of bread and wine into his body and blood (transubstantiation) and are encouraged to receive the Eucharist at every Mass in which they participate.  The other sacraments are baptism, confirmation, penance, holy orders, matrimony (marriage), and the anointing of the sick.  Catholic theology teaches that these signs, instituted by Christ, effect their spiritual benefit on the recipient independent of the faith or virtue of the minister (ex opera operato).

15. It also refers to the fact that the Roman Catholic Church considers itself:

    Heir to theological traditions of the apostolic, patristic, medieval and modern periods of development of the Christian church, with its adherence to the theology derived from the bible.

16. In its findings and reasons, the Tribunal accepted little more than that the applicant was a citizen of the Peoples Republic of China.  It said that it did not find the applicant to be a truthful or credible witness.  It said:

    The applicant’s evidence of his personal circumstances was contradictory and confused.  With respect to his claims of religious practice and belief and his claims of mistreatment I formed the view that the applicant was unprepared to be tested on the specific details of his claim and found it difficult to give detailed and plausible evidence because he had no experience to draw upon to give that evidence.

17. The Tribunal then explained this conclusion, commencing with its assessment of whether the applicant had been an adherent of the Catholic Church in China.  It said:

    84.    I do not accept that the applicant became a Catholic when he was a young child and I do not accept that he became a member of an underground Catholic congregation in his home village. I do not accept this claim because the applicant's knowledge of Catholicism and the unofficial Catholic Church in China was confused, incoherent and not consistent with a person who had become a member of the underground Catholic church when he was young and had continued to attend church gatherings until he left China in 2007. It may be that the applicant's uncle was a Catholic and that he was vaguely aware of the practice of Catholicism however the evidence he gave demonstrated a fundamental misunderstanding of Catholic faith and practice. Further the applicant indicated that he had never taken communion because he had not reached a sufficient level of understanding. I would have expected that a person who claimed he had attended the underground Catholic Church throughout his life and had written articles in a church newsletter would have a basic understanding of doctrine and ritual as outlined in the independent information regarding Catholic doctrine.

18. The Tribunal did not explain what the “fundamental misunderstanding” of Catholic faith and practice was to which it referred, however at least one such misunderstanding patently occurred in the applicant’s evidence that “Catholics do not believe in Jesus.”

19. The Tribunal based its further conclusions substantially upon its adverse conclusion about the applicant’s religion.  It did not accept that he had written a religious article in 1983, and had been persecuted as claimed.  It said: “further, his evidence on the circumstances of the claimed arrest and detention were lacking in any plausible detail”.  It also referred to some inconsistent evidence about his detention.  It said: 

    86.    I do not accept that the applicant worked as a teacher for little money in a remote village from 1985 until 2007. He made these claims in writing and at hearing although at hearing he contradicted this evidence when he told me that he earned a good income from his investing business and that he and his wife had significant assets in China. His evidence at hearing was not consistent with his written claims which were intended to convey an impression of a simple country teacher who had been mistreated for reasons of his religious faith and had little income or assets. This is not consistent with the evidence given by the applicant of his financial position at the time of his departure from China

20. The Tribunal said that it was supported in its adverse findings “by his delay in applying for a protection visa once he arrived in Australia”, which appeared inconsistent with his claims that this was the purpose for his coming to Australia. 

21. The Tribunal noted that the applicant claimed to have attended a Catholic Church in Australia, but it said:

    He did not give me any detailed or supportive evidence which would suggest that he had attended a Catholic Church in Australia as a member of a congregation. 

22. The Tribunal concluded:

    91.    For all the reasons set out above I do not accept that the applicant faces a real chance of persecution for reasons of his religion should he return to China now or in the foreseeable future. Accordingly I am not satisfied that the applicant has a well founded fear of persecution for any Convention related reason.

23. The Tribunal’s adverse conclusion in relation to the applicant’s claims provided its reason for also affirming the delegate’s decision in relation to the daughter’s secondary application.

24. The Tribunal’s decision was posted by registered post to the address for correspondence given by the applicant to both the Department and the Tribunal.  There is no evidence that that letter was ever returned by the Post Office. 

25. The applicant next came to the attention of the Department of Immigration in May 2010, about 11 months after the Tribunal’s decision.  This occurred when he was taken into detention by the New South Wales Police, and faced charges which were ultimately dismissed in October 2010.  It appears that in the course of that detention, his immigration status was discovered, and the applicant was transferred to the Villawood Immigration Detention Centre after the resolution of the criminal matter.  He then employed the solicitor who had been acting for him in the criminal matter to address his immigration situation. 

26. The present proceedings were then commenced, and an urgent application for interim relief was made to me shortly after the filing of the application. The applicant appeared before me on 27 October 2010 by way of counsel.  I declined on that occasion to make any interim orders other than setting a timetable for an expedited hearing today.  I was not satisfied that the applicant faced an imminent threat to remove him from Australia, and I also had doubts whether he had raised serious questions with prospects of success for the substantive application, particularly in relation to the extension of time issue.

27. The applicant’s solicitors filed an amended application, but about two weeks ago they filed a notice of withdrawal.  The applicant has therefore appeared today without legal representation.  He was unable to address the points made in the amended application, but I shall attempt to address them myself below.

28. The applicant was questioned about his delay in commencing proceedings.  He gave oral evidence claiming that, although the address to which the Tribunal’s decision was sent was his previous address, at least, for correspondence, he had not received that letter, nor any information as to the outcome of his appeal to the Tribunal until he was taken into detention.  He could not explain why the registered post letter did not come to his attention, notwithstanding that he had asked his previous “landlord” at that address to give him any letters received after he left that address.  He said that he had “checked a few times” with his migration agent about the RRT appeal, but had not asked the agent to make any inquiries because the agent had ceased to act for him.  He said that he asked one friend on one occasion to check on the internet whether the Tribunal’s decision could be found, but he did not make any other effort to try and find out the outcome of the appeal.  He also did not inform the Tribunal or the Department of any better address for communicating with him.

1. It was put to him in cross-examination that in fact he had become aware of the outcome of the Tribunal’s decision, and had deliberately avoided contact with the immigration authorities, preferring to remain in Australia unlawfully.  The applicant denied this, and became emotional, seeking to explain to the Court his personal circumstances which had brought him to Australia and led to his present predicament.  His circumstances were further explained in his submissions, when explaining why he thought the Tribunal’s decision was incorrect, and why he should be given a further opportunity to have his refugee claims assessed. 

2. The applicant told me that he thought that the Tribunal had “grossly misunderstood” his claims, which in fact did not assert that he was an experienced or committed Catholic.  Rather, he claimed only that he had assisted his uncle when writing the article in 1983, which had incurred severe persecution and ended a promising teaching career.  He then repeated his refugee claims in a manner not entirely consistent with how they had been put to the Department and Tribunal.  He also referred to a number of personal difficulties in relation to his family relationships, which render his future return to China difficult. 

3. He exhibited a degree of anxiety, which may well be attributable to his protracted detention, and which attracted my sympathy.  However, I do not consider that anything he said to me today identified jurisdictional error affecting the proceedings of the Tribunal.

4. In my opinion, it was clearly open to the Tribunal to understand the applicant’s claim which had been presented to the Department and then to the Tribunal as being a claim to fear persecution on the ground of adherence to the Christian faith as a Roman Catholic churchgoer in an ‘underground’ congregation.  No doubt the persecution he claimed to have suffered had an element of political persecution to it, but essentially the claim was one of persecution on the ground of religious opinion.  This is how the Tribunal has addressed the matter, and I do not consider that its statement of reasons discloses any “misunderstanding” of his claims as presented to it, giving rise to jurisdictional error upon reasoning such is as found in NABE v Minister for Immigration & Multicultural Affairs (No. 2) (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.

5. Considering the merits of the grounds in the amended application, grounds 1 and 2 essentially contend that jurisdictional error of the type found in SZLSP v Minister for Immigration & Citizenship (2010) 187 FCR 362 is established by the Tribunal’s reasoning. That is, that it is reasoning which discloses illogical foundations because it is not based on probative material identified in the reasons of the Tribunal.

6. However, the factual basis for that argument is not, in my opinion, made out.  I am not persuaded that it was not open to the Tribunal to have formed the generally adverse impression of the applicant as a credible witness, as a result of considering the content of the applicant’s evidence to it and the manner in which he had given that evidence.

7. The Tribunal’s assessment of the applicant’s knowledge and practices of the Catholic Church followed a course which is open to a Tribunal as a matter of law (cf. SBCC v Minister for Immigration & Citizenship [2006] FCAFC 129 at [47]). It appears to me that it was well open to a Tribunal informed generally about the beliefs and practices of Catholics, including from the encyclopaedia, to have formed its adverse view of the applicant’s claims.

8. I am not persuaded that the Tribunal arrived at conclusions in the absence of probative evidence about the general practices and beliefs of Roman Catholic Christians.  It is entitled to draw upon its “exposure to previous claims based on the same religion” (see paragraph [42] of SZLSP) as well as the sources identified by it, and I would not draw adverse conclusions from the absence of more extensive discussion by the Tribunal as to the flaws in the applicant’s evidence.

9. I do not accept the contention in paragraph 3 of the amended application, in effect, that the Tribunal decided the matter upon issues which were not reasonably understood by the applicant or drawn to his attention, in accordance with principles identified in SZBEL v Minister for Immigration& Multicultural & Indigenous Affairs (2006) 228 CLR 152. It was open to the Tribunal to form the view that the applicant had presented himself as a person who had suffered persecution as an adherent of the Roman Catholic Church, and on the Tribunal’s description of the hearing it clearly identified to the applicant reasons why it was having difficulty accepting that claim, and gave him an opportunity to respond to its concerns.

10. The contention in ground 4 of the amended application is incorrect.  The Tribunal expressly put to the applicant that his presentation of his protection visa statement “conveyed an impression that he was a simple country teacher not earning very much money” (see paragraphs [48] and [71] of the Tribunal’s decision).  In my opinion, the Tribunal acted fairly, and the challenged element of its reasons was open to it on the evidence. 

11. The argument in relation to bias made in paragraph 5 of the amended application is lacking in substance, in my opinion, on the evidence before me.  It essentially seeks to discredit the reasoning process of the Tribunal, and repeats the arguments that the Tribunal’s decision was based on illogical reasoning and a lack of probative evidence.  However, for reasons given above I do not consider that that characterisation is available.

12. No evidence in relation to the conduct of the proceedings by the Tribunal is suggested to support a contention of reasonable apprehension of bias.  Applying the test in Re RRT & Anor; Ex Parte H (2001) 179 ALR 425 I am not satisfied that that contention has a basis in the evidence before me.

13. The contention in paragraph 6 of the amended application that the Tribunal “applied the wrong test or asked the wrong question” has not been explained to me. Assessing the Tribunal’s reasoning, I am not satisfied that it addressed the matter based upon any error of law. The Tribunal affirmed the delegate’s decision based on findings on the applicant’s credibility, including the credibility of his claim to have a subjective fear of persecution. Based upon its findings as to the factual claims of the applicant, it found the absence of a real chance of persecution. In my opinion, this process of reasoning reflected a correct appreciation of the effect of the Refugees Convention when applied by the Migration Act s.36(2) in accordance with High Court authority which it referred to earlier in its statement of reasons..

14. The contention in paragraph 7 alleges a misconstruction of the applicant’s claims, in a manner different to the misapprehension that the applicant invited me to consider in his oral submissions.  The argument in paragraph 7 is not clear, but the premise in its opening sentence is, in my opinion, incorrect.  In my opinion, essentially the applicant’s claims were that he feared persecution on the ground of adherence to the beliefs and practices of the Roman Catholic Church as followed in an unregistered congregation, which had led the applicant to incur persecution, inter alia, as a result of his writing publications in support of his church.

15. For the above reasons, I am not persuaded that any of the arguments raised in the amended application establish jurisdictional error, nor am I satisfied that any of them has such arguable strength as to provide justification for overlooking the substantial delay in the applicant bringing these issues to the Court.

16. The applicant’s explanation for his delay which I have referred to above, does not, in my opinion, provide satisfactory evidence, even assuming its truth.  The applicant, on his own account, adopted an extremely casual approach to obtaining information about the outcome of his appeal.  On that account, it was his own conduct which led to his being unaware of the outcome until he was taken into detention, and other people were not to blame.  His conduct might be understandable by a person seeking to remain in Australia and being most unwilling to return to China, but it does not, in my opinion, point to circumstances making it “necessary” in the interests of justice to overlook a substantial delay.

17. Authorities in relation to s.477(2), including the discussion of Barnes FM in SZNZU v Minister for Immigration [2010] FMCA 197, Nicholls FM in SZMFJ v Minister for Immigration [2009] FMCA 771, and myself in SZNZI v Minister for Immigration [2010] FMCA 57, have pointed to the public interest in challenges to the validity of administrative decisions being brought promptly. That public interest is reflected in the time limit in s.477(1) and the demanding test before time can be extended.

18. Taking in account all the relevant circumstances including the applicant’s evidence today and my findings on a final basis as to the merit of the grounds, I am not persuaded to exercise the discretion provided by section 477(2). The consequence is that I shall refuse the application for extension, and dismiss the application as incompetent.

19. In relation to costs, I am inclined to think that the Minister might be entitled to costs against the first applicant, but I am not satisfied that the second applicant has participated in these proceedings in a manner which should give rise to a costs order against her.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  20 December 2010