SZOUT v Minister for Immigration - [2011] FMCA 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUT v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 296

MIGRATION – RRT decision – Chinese student claiming fear of religious persecution – Tribunal found no real chance of future persecution – no arguable grounds of jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Applicant:

SZOUT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2570 of 2010

Judgment of:

Smith FM

Hearing date:

20 April 2011

Delivered at:

Sydney

Delivered on:

20 April 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr B Kaplan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2570 of 2010

SZOUT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a student visa in April 2008, when he was aged 18. He ceased to attend studies soon after his arrival, but stayed in Australia. Shortly before his visa was due to expire, he lodged an application for a protection visa on 19 February 2010. He was assisted by a migration agent, Weiming Qian. The statement attached to the visa application set out a history upon which he claimed fear of persecution if he returned to the People’s Republic of China.
The applicant said that he came from a family of devout Christians, who regularly participated in family church activities in his town. His parents’ house was used as a home church until 2006, when a group of policemen raided the house. They confiscated all the Bibles and took the persons present to the police station for interrogation, including the applicant, who was then aged 16. He said:
I was released soon, but my parents and other brothers and sisters were detained. They found out that my father was an active member promoting Christian. My father was sentenced to reeducation through labour for six months, while my mother was sentenced to seven days’ detention and the other brothers and sisters were subject to varying degrees of punishment. …
Following his father’s release from detention, his father prepared an application to send the applicant overseas for study. The applicant said that after his arrival he immediately found a church nearby, attended church every Sunday, and participated regularly in church activities.
The applicant claimed that his mother had told him on the telephone in January 2010 that his father had been arrested again because he was found to be participating in a family church. She told him:
… now our family is under close supervision of the police. She said that now I was finally abroad and lived in a country where I can believe in Christian freely, and if I came back I would just be persecuted like my father. …
No corroborative evidence of these claims was ever provided to the Department of Immigration nor to the Tribunal.
The applicant was interviewed by the delegate on 13 May 2010. The delegate made a decision refusing the visa application on 14 May 2010. The delegate said that the applicant had failed to “provide a sufficient level of details about his Christian activity in Fujian in China or in Australia to satisfy me that he was a Christian since his childhood”. The delegate thought that his claims “have been fabricated”.
The applicant appealed to the Tribunal assisted by his agent. He attended a hearing without his agent on 18 August 2010. A transcript of the hearing has not been tendered, and I accept the Tribunal’s description of the hearing.
According to the Tribunal, it questioned the applicant about the present location of his family members in China, and their continuing involvement in a family church. It received details about the arrests of his father. It also questioned the applicant closely about his knowledge and involvement in a church in Australia. The applicant described attending a church at Epping.
The Tribunal made a decision on 28 October 2010 which affirmed the delegate’s decision. In its “Findings and Reasons”, the Tribunal said that it was “prepared to accept that the applicant was raised in a Christian household”. It also said that it was prepared to accept that the applicant’s father had been detained in 2006, as the applicant had claimed. However, it was not “persuaded about the veracity of the claim of the second detention” of his father, and explained this conclusion, in particular, because the applicant could not explain why his father had been detained, but not his aunt and uncle at whose house the alleged incident had occurred.
The Tribunal considered the extent of the applicant’s knowledge of basic Christian beliefs, and said that it was “extremely limited”. The Tribunal accepted that the applicant “has been attending a Christian church since his arrival in Australia” and was not of the view that this was for the purpose of strengthening his claim to be a refugee. However, it concluded that his attendances were largely because he “enjoys the fellowship and social interaction afforded by his membership of the church group”.
The Tribunal noted that the applicant’s parents had relocated and now lived with his maternal grandparents. It said that there was no evidence that they had been detained or otherwise harassed because of their religion at that location. The Tribunal noted that his two brothers had continued to practise their religion, including one of them who had remained in the family home. The Tribunal noted that they had not been troubled by police or local officials, and nor had the applicant’s aunts or uncles.
The Tribunal concluded:
88.Whilst the Tribunal accepts that the applicant was raised in a Christian family in China it concludes on the basis of his evidence that apart from the one occasion in 2006 when he was detained briefly he has not otherwise been harmed or detained for reason of his religion. His parents presently continue to practise their religion. His brothers have always worshipped as part of the Christian family church and have never been detained or harassed for reason of their religion. As stated there is no evidence that any of the applicant’s uncles or aunts have been detained.
89.The applicant told the delegate and the Tribunal that his father made arrangements for him to come to Australia in order to avoid persecution in China because of his religion. The Tribunal questions why his father would not therefore have felt that he must seek likewise to make some arrangements for his other two sons. He did not do so. The Tribunal concludes that the applicant came to Australia for the purpose of undertaking study.
90.For all of the reasons outlined the Tribunal finds that the applicant can return to China and can continue to practise his religion as a Christian in the family church as he has done in the past and as members of his family continue to do at the present time and in so doing there is not a real chance that he will be persecuted for reason of his religion. The Tribunal finds that the applicant’s fear of Convention related persecution is not well founded.
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 is a refugee or should be given permission to stay in Australia.
The grounds of the application are set out in the applicant’s application:
1.RRT considered my case unfairly. They doubt my claim without substantive evidence.
2.Procedural Fairness has been denied by RRT.
3.RRT did not consider my situation in China. I will be put in jail if I go back.
Unfortunately, these three grounds follow a precedent frequently seen in applications by clients of this migration agent. They show no particular relevance to the circumstances of the applicant nor to the reasoning of this Tribunal. Nor has any relevance or particularity to the grounds been provided by an amended application or written or oral submissions presented by the applicant.
Unaided by the applicant’s documents, I can find no substance in any of the grounds.
I can perceive no failure by the Tribunal to follow any procedure required by the Migration Act 1958 (Cth) which is directed at providing procedural fairness.
Nor can I find anything ‘unfair’ in the reasoning of the Tribunal, in so far as it could amount to jurisdictional error. The Tribunal’s conclusion that there was not “a real chance” that the applicant would be persecuted on his return to China was, in my opinion, open to the Tribunal on the evidence and reflects no error of law or jurisdictional error of fact.
In my opinion, the third ground can be understood only as a disagreement with the merits of the Tribunal’s assessment. The Tribunal’s decision shows a close attention to the evidence given by the applicant, and a consideration of his claimed circumstances. In my opinion, it is not shown to be affected by jurisdictional error.
I have therefore not found any ground upon which I can remit the matter to the Tribunal, and I must dismiss the application.

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

Associate:

Date: 5 May 2011