SZOUP v Minister for Immigration - [2011] FMCA 175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUP v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 175

MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Catholic – disbelieved by Tribunal – no ground of jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424AA, 425

Applicant:

SZOUP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2538 of 2010

Judgment of:

Smith FM

Hearing date:

14 March 2011

Delivered at:

Sydney

Delivered on:

14 March 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr M Alderton

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2538 of 2010

SZOUP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in October 2007 on a student guardian visa. His visa expired in March 2009, and the applicant remained unlawfully in Australia until lodging an application for a protection visa on 17 March 2010. A brief statement explained why he claimed a fear of persecution if he returned to the People’s Republic of China.
The applicant claimed that he had been brought into contact with the Catholic Church in China in January 1997, influenced by his brother. He regularly attended an underground Catholic Church in his village on Sundays, and also attended religious meetings on Thursdays and Saturdays. He claimed:
One day in July 2007, while we gathered in the church, a lot of police suddenly broke into. We were denounced to have illegal religious gatherings. As a result, about 15 of us were taken to the local Public Security Bureau, where we were interviewed and warned not to conduct the same religious activities in the future.
Immediately our church was forced to be closed and we were prohibited from having any religious gatherings and activities. But as a Catholic, I find it impossible to live without my Catholic belief. I told myself I must find a place where I could practice my religion freely.
When I arrived in Australia, I was going to Catholic Church, located in Flemington Sydney.
As a key member of the underground church in China, if I return to China I will be subjected to persecution. …
The applicant was interviewed by a delegate of the Minister on 9 June 2010, and the delegate made a decision to refuse the visa application on 11 June 2010. In her reasons, the delegate referred to inconsistent evidence given by the applicant as to the activities of the police. She said that his testimony was vague and lacking in specific detail, and that he had “used information written on his hand to answer basic questions about Catholicism”. The delegate was not satisfied that he was of any interest to Chinese authorities due to his religion.
The applicant appealed to the Tribunal. He attended a hearing on 8 September 2010, and presented a reference from Father McGee. Father McGee certified that the applicant was a member of the Western Sydney Catholic Chinese Community:
… and has been regularly attending the Chinese Catholic Mass which is celebrated at St. Dominic’s Catholic Church Flemington, (Homebush West) since September 2009.
The applicant also presented a photograph which he informed the Tribunal had been taken in a church in China.
A transcript of the Tribunal’s hearing is not in evidence, and I accept the Tribunal’s description of the hearing. According to this, it put to the applicant a number of concerns arising from his evidence.
In particular, it put to the applicant information that his student guardian visa application had been lodged in April 2007, prior to the claimed raid by the police. It appears to me that the Tribunal followed procedures required by s.424AA of the Migration Act 1958 (Cth) in relation to that information. Otherwise, the Tribunal’s ultimate reasoning was based upon evidence given by the applicant himself to the Department and Tribunal. This included the applicant’s evidence to the Tribunal seeking to explain the notes on his hand at the delegate’s interview.
The Tribunal made a decision on 11 November 2010. It affirmed the delegate’s decision. In its “Findings and Reasons”, it gave a number of reasons for disbelieving the applicant’s claims.
The Tribunal said that the applicant had not provided a plausible explanation why a person of his claimed years of participation in the Catholic Church would have needed to write on his hand information such as the date of Christmas and the date of the Assumption of Mary.
The Tribunal also identified “several differing accounts of his encounters with the police in China”, which had been given in the delegate’s interview, in the applicant’s evidence to the Tribunal, and in his visa statement.
The Tribunal referred to a change in the applicant’s evidence as to whether he had been baptised, and the inconsistency of his applying for a student guardian visa prior to the police incident which caused him to seek refuge in Australia. The applicant’s response to this information showed in the Tribunal’s opinion a “willingness to adapt his evidence when presented with inconsistent information”.
The Tribunal found that the applicant’s delay of around two and a half years in lodging a protection visa application was inconsistent with his claimed experience of persecution in China and his claimed fear of persecution. The Tribunal also appears not to have thought the applicant’s claims about the Catholic Church in China to be consistent with current information about the position of Christians in Fujian.
The Tribunal was not satisfied that the photograph submitted by the applicant was:
… conclusive of the applicant’s claims to have been a member of the underground Catholic church in China, nor does it overcome the Tribunal’s cumulative concerns detailed above.
The Tribunal accepted that the applicant had demonstrated knowledge of some aspects of Catholic faith and ritual. It accepted that he had been attending Flemington Catholic Church since September 2009. However, it said that it did not accept that he had attended church in Australia “as a true expression of his faith, or that he attended church in Australia other than for the sole purpose of learning about the Catholic faith to strengthening his claims to be a refugee”. The Tribunal was therefore bound by s.91R(3) of the Migration Act to disregard that church attendance when considering whether he had a well‑founded fear of persecution in China.
The Tribunal concluded that it was not satisfied that the applicant or his brother were members of the underground Catholic Church as claimed, nor that he or his brother had experienced adverse attention from the Chinese authorities. It was not satisfied that he was “a genuine Catholic, nor that he would seek to participate in the unregistered Catholic church on his return to China”. The Tribunal was not satisfied that the applicant faced a real chance of persecution should he return to China.
The applicant now asks 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 believed, nor whether he should be given a protection visa or any other permission to stay in Australia.
The applicant’s grounds for his application are obscurely set out in an attachment to a defectively sworn affidavit:
1.I believe that the decision makers made jurisdiction mistakes when considering my application. They did not give me proper opportunity to explain my case and simply refused my application base on bias against me.
2.The decision makers did not even refer to any information from any resources about I am a member of underground church in China.
3.The decision makers believed that I would not be persecuted on my return to China and I was lack of credibility. They could not produce any evidence or materials to justify the making of their decisions and they just simply refused my application.
4.I hope my application can be reconsidered by you.
These grounds have not been explained by the applicant in any amended application or written or oral submissions.
I can find no basis for any criticism of the Tribunal in relation to its conduct of the hearing or otherwise, under doctrines of apprehended or actual bias. The applicant appears in my opinion to have been given a full opportunity to explain his case at the Tribunal’s hearing, consistent with the Tribunal’s obligations under s.425 and other provisions of the Migration Act 1958 (Cth).
The contention that there was information which the Tribunal failed to address has no substance. In my opinion, the Tribunal identified and considered all the evidence presented by the applicant, including his two pieces of documentary evidence.
The third ground misapprehends that there is an onus of disproof on the Tribunal before it can refuse a protection visa application. However, the Migration Act required the Tribunal to be positively satisfied as to the history claimed by the applicant, before it could find the applicant qualified for a protection visa. The Tribunal has given reasons for not being so satisfied. Its reasons in my opinion were logical, based on the evidence before it, and open to it on that material.
I can find no ground of jurisdictional error upon which I would have power to set aside the Tribunal’s decision. I must therefore dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 23 March 2011