SZOVQ v Minister for Immigration

[2011] FMCA 360

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVQ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 360

MIGRATION – Review of RRT decision – protection visa – persecution on religious grounds – where applicant practiced Christianity in Australia – whether Tribunal’s decision was fair and just – whether Tribunal bound to make inquiries – whether deprivation of natural justice, prejudice and bias – where applicant not considered a credible witness – whether Tribunal may take into account timing of application – merits review.

Migration Act 1958 (Cth), s.420

Kiao v West (1985) 159 CLR 550
Annetts v McCann (1990) 170 CLR 596
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Applicant S214/2003 v The Refugee Review Tribunal [2006] FCAFC 166
SZHVL v The Minister for Immigration and Citizenship [2008] FCA 356

Applicant: SZOVQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2682 of 2010

Judgment of: Raphael FM

Hearing date: 9 May 2011

Date of Last Submission: 9 May 2011

Delivered at: Sydney

Delivered on: 9 May 2011

REPRESENTATION

Applicant in person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant to pay the First Respondent’s costs assessed at the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2682 of 2010

SZOVQ

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

   
   

   1 January 2009 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 7 May 2010.  On

   
   

   3 August 2010 a delegate of the Minister refused to grant a protection visa and the applicant applied for review of that decision from the Refugee Review Tribunal.  The Tribunal conducted a hearing at which the applicant appeared.  On 19 November 2010 the Tribunal determined to affirm the decision under review and handed that decision down on 22 November.

2. The ground upon which the applicant claimed she was a person to whom Australia owed protection obligations was that of religion [61 CB 104].  The Tribunal sets out in summary of the applicant’s claims which I am satisfied is accurate:

   “The applicant claims she will be persecuted if she returns to China as she is a practising Christian who attended the underground church in China.  She claims that she held underground church meetings at her shop and her home.  She claims she was detained on June 2005 for 3 days for holding a Christian gathering at her shop.  She claims that the police took all the inventory from her shop and refused to return it.  The applicant claims that she and/or her husband petitioned the local government demanding the return of her inventory.  She claims that her husband went into hiding in August 2006 and September 2008 after a fight broke when he petitioned the local government.  She claims that in December 2008, the police raided her home when she had organised a Christian gathering there.  She claims that her daughter has experienced some discrimination at school and the police have often interrogated her parents because of the applicant’s problems with the authorities.  The applicant claims that if she returned to China she would be arrested and put into a re-education camp because of her church participation.”

3. It is also important to note that the applicant and her husband had both travelled to Hungary after the incidents which resulted in her losing her shop.  Her husband apparently went to Hungary in December 2006 and the applicant joined him in February 2008, but they returned to China in August 2008 and remained there, although some time after the husband managed to come to Australia and she has had what would appear to be an on and off relationship with him since her own arrival.  She now claims that she is pregnant with his child.  The applicant’s visa for Hungary does not expire until 2012 and the Tribunal questioned her as to why she had not returned to that country.  Initially, she said that the country did not recognise the Refugees Convention but the Tribunal corrected her upon this.  The Tribunal questioned the applicant why she remained in China for a reasonably lengthy period after she had returned and before she came into Australia.  The applicant responded that this was because she was trying to negotiate some compensation for her lost property and also because her father was sick and passed away in November 2009.  The Tribunal questioned the applicant on why she had returned to China in the first place in 2008 and she told that it was because her parents had indicated to her that she might be able to obtain some compensation and she had to sign some documents.

4. The Tribunal in its findings and reasons provided eight reasons why it did not accept the applicant’s claims.  These are set out at CB 104-106.  The Tribunal felt it was implausible that the applicant could have practised as a Christian for seven years in an underground church between 1998 and 2005 without any difficulties from the authorities if the persecution that she complained about really had existed.  Secondly, the Tribunal found that the applicant had provided inconsistent evidence about her questioning by the police in 2005 and why the police did not question her husband.  It was this inconsistency that led the Tribunal to the view that it doubted the applicant’s claim that the police had raided her shop and detained her for three days.  Thirdly, the Tribunal considered that the applicant’s accounts of her attempts to petition the government for the return of her property after June 2005 raid were vague, contradictory and inconsistent.  She gave several different versions of whether or not she directly approached the government for the return of her inventory and then said that she had left the matter in the hands of her husband.  The Tribunal was of the belief that if she was solely responsible for running her shop, she would have taken a more active role in trying to secure the return of her inventory and would have been able to describe in detail the steps  that she took to petition the government.  This led the Tribunal to the view that it doubted her claim that the police had confiscated her inventory following a raid on her shop because of an underground church gathering.

5. The Tribunal found that the applicant did not apply for protection when she went to Hungary, despite her claim that she had left China to practice her faith more freely and did not accept her explanation that it never occurred to her to apply for protection because she and her husband were too busy carrying on business there.  This led the Tribunal to the view that it had doubts as to whether she had previously experienced harm from the Chinese authorities because of her religious activities.  The Tribunal noted that the applicant had returned to China in August 2008 despite her claim to fear persecution and despite the fact that she had a resident permit in Hungary which did not expire until 2012.  It noted that although she obtained her tourist visa to travel to Australia in 2008, she did not, in fact, travel until 2009.  The Tribunal did not accept the applicant’s explanation that she only returned from Hungary to sign certain documents and to petition the government to return her property.  The return to China indicated to the Tribunal that the applicant did not have a real fear of persecution.

6. The Tribunal found, seventhly, that there was a significant delay before the applicant applied for her protection visa: even though her tourist visa had run out in April 2009 she did not apply for a protection visa until May 2010.  It took that delay into consideration as a factor when considering her claim to have feared persecution.  Finally, the Tribunal found that it was implausible that the applicant would not have discussed with her husband whether he had applied for a protection visa.  This was a subject that had been discussed with the applicant who was unable to tell the Tribunal what her husband’s position was.  Given all these matters, the Tribunal came to the conclusion that the applicant could not be considered a credible witness and it did not accept that she was a genuinely committed Christian.

7. The Tribunal did note that the applicant had been attending the Padstow Chinese Congregational Church and that the pastor of that church had provided a short reference [CB 90]:

   “[79]… The Tribunal has had regard to the applicant’s evidence that Christianity is her faith and her practice.  However, the Tribunal has not accepted the applicant’s evidence in relation to her or her husband’s claimed practice of Christianity and participation in underground church gatherings in China.  The Tribunal has not accepted that the applicant left China because she had a fear of serious harm because of her religion.  The Tribunal has found that she is not a credible witness.  Therefore, the Tribunal does not accept that she attended church in Australia because she is a genuine committed Christian, or that she became a genuine committed Christian after attending church in Australia.

   [80] Given these findings, the Tribunal finds that the applicant has attending church for the purpose of strengthening her claim to be a refugee. The applicant has not satisfied the Tribunal that she has engaged in her conduct in Australia in attending church, otherwise than for the purpose of strengthening her refugee claims.  Therefore, the Tribunal is required to disregard her conduct engaged in Australia in accordance with subsection 91R(3) of the Act.”

8. The Tribunal also considered the applicant’s claims relating to her daughter.  It would appear that because her husband was under the legal marriage age the couple were fined RMB 10,000.00 when she was born in order to permit her registration.  However, the child was registered and although she may have been subject to some alleged discrimination at school the Tribunal concluded that this had nothing to do with the applicant’s Christian activities.  The Tribunal did not believe that the applicant would suffer serious harm amounting to persecution if she returned to China as a result of having a child without obtaining a certificate of permission.  To the extent that the applicant’s claims related to the position of her own child, she is not making an application for a protection visa as she is not within the country and the Tribunal was not obliged to consider her position as a child born in those circumstances.

9. On 10 December 2010 the applicant applied for review of the Tribunal’s decision in this court.  She had three grounds of application.  The first was:

   “The Tribunal contravened s.420(1) of the Migration Act as it does not assess my claims fairly and justly.”

   Whilst s.420 does not specifically mention the words “fair” or “just” it is accepted from dicta of the High Court that “fairness” is an important element of any Tribunal decision: Kiao v West (1985) 159 CLR 550 (at [584] per Mason J), Annetts v McCann (1990) 170 CLR 596 (at [598] per Mason CJ, Deane, McHugh JJ). However, the applicant does not explain exactly why the Tribunal was unfair or unjust in its assessment of her claims and it seems to me that she was provided with “fairness” in the manner in which the Tribunal interviewed her, discussed with her all her claims and considered the evidence that she had provided. If the Tribunal had acted fairly and took into account all these matters, then it would follow that the decision which it came to, after weighing up that evidence, was just, even if it might not have been the one that the applicant hoped would result.

10. The second ground was that:

    “The Tribunal contravened s.424(3) without clarifying with me and my Australian pastor for further comments.”

    This is, effectively, a claim that the Tribunal was bound to make inquiries of the pastor.  But it is now accepted that since the decision of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, there is no duty to inquire, although a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. That is not what occurred in this case. What occurred in this case was that the applicant, consistent with her duty to do so, advanced her own case; Applicant S214/2003 v The Refugee Review Tribunal [2006] FCAFC 166 where Allsop, Jacobson and Graham JJ opined (at [26]):

    “…[T]he Tribunal is not in a position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim […] had been made out.”

    However, the evidence which she advanced was not sufficient to permit the Tribunal to change the views to which it had come concerning the applicant’s credibility or her motive for having attended the church in the first place.  The Tribunal did not deny that she had attended the Padstow Church.  It concluded that she had done so for reasons more to do with her obtaining a protection visa than her religious devotion.

11. The final ground relied on by the applicant was:

    “I was deprived of natural justice because the Tribunal erred in laws due to its prejudice and bias against me.”

    Insofar as his claim refers to bias, it is a matter that only in rare and extreme circumstances can be established simply by reference to the reasons produced by the Tribunal; SZHVL v The Minister for Immigration and Citizenship [2008] FCA 356 as McKerracher J said (at [17]) in that case:

    “It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.”

    The applicant in the instant case has provided no particulars of the alleged bias and it is certainly not evident or even hinted at in the Tribunal’s reasons for decision.

12. The applicant provided the court with some written submissions.  These were essentially responses to the reasons put forward by the Tribunal for its views as to the applicant’s credibility.  As such, it was no more than a request for merits review that this court cannot provide.  The applicant repeated her complaint that the Tribunal should have contacted her pastor, but I have already dealt with that and do not find that this failure constitutes a jurisdictional error.

13. The applicant appeared before me today.  She told me that she did not think it was fair that the Tribunal took into account the delay in launching her protection visa application.  She did not agree with what she considered the Tribunal’s view to have been, namely that she had utilised other people’s experiences in putting forward her claims, although I have not seen a reference to that in the Tribunal’s decision, and repeated that the Tribunal had obligations to make inquiries and ask questions of the pastor.  She told me that she was a committed Christian and that her religious beliefs could not be denied.  These matters are, obviously, of importance to the applicant and the court is not intending to minimise them in any way when it points out that they are not really indicators of jurisdictional error and can, therefore, not be taken into consideration in an application for judicial review.

14. I am unable to find any grounds upon which I could say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  The application shall be dismissed and the applicant shall pay the 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:  18 May 2011