SZOZG v Minister for Immigration

[2011] FMCA 244

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOZG v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 244

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

Migration Act 1958 (Cth), s.427

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 273 ALR 223
Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41
MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106
SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723

Applicant: SZOZG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 203 of 2011

Judgment of: Smith FM

Hearing date: 7 April 2011

Delivered at: Sydney

Delivered on: 7 April 2011

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 203 of 2011

SZOZG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in May 2007 on a three year student’s visa.  He was then about the age of 17.  He ceased to attend his studies after about a year, and came to the attention of the Immigration Department in September 2009.  He then applied for revocation of what appeared to him and to the Department to have been an automatic cancellation of his visa for non-attendance at his studies.  It was later decided that his student visa had in fact not been cancelled according to law. 

2. Following the expiry of his student visa, the applicant continued to stay in Australia, and was taken into detention after being interviewed at his home by a field officer on 6 September, 2010.  He was then further interviewed by a Mandarin speaking officer in Villawood Immigration Detention Centre.  In all these contacts with the Department officers, he made no claims to fear persecution if he returned to his country of nationality, China, although he had indicated an unwillingness to return.

3. On 23 September 2010, a protection visa application was lodged by the applicant with the assistance of a migration agent, to whom he was referred under an assistance scheme.  The statement attached to the visa application narrated claims to have been persecuted in China, and to fear further persecution if he returned, on the ground of an association with an underground Christian church in Fujian. 

4. The applicant claimed that his parents were actively involved in the church, and that he and his younger brother had been detained with their parents for two days in March 2006, after police arrested everyone at a religious gathering.  He claimed that this occurred again in December 2006, when he was detained for about a week under traumatic circumstances.  He claimed to have been separated from his parents in the course of both detentions, and to have observed his parents with bruises and bandages after their release. 

5. He claimed to have attended church gatherings less frequently after this experience, and that his father narrowly avoided a further arrest in 2007.  After a temporary stay with his aunt, his father arranged for him to leave China to come to Australia on the student visa.  He claimed to have been baptised in his local church before leaving. 

6. His statement said that after arrival in Australia, his cousin took him to a church in Hurstville, which he attended with his cousin and others.  He claimed to have ceased attending college when his parents’ business failed, and they could not afford the school fees.  He became depressed and scared after he was advised his visa was cancelled.  His statement said that his parents had gone into hiding after their business collapsed, and they had moved permanently to another province.  He said that “they still practice their Christian faith but are very guarded and frightened that they might be caught again by police”.

7. The applicant said that he did not explain his reasons for not wanting to return to China when interviewed by immigration officers prior to making the protection visa application.  He claimed a fear of persecution if he continued to practice Christianity in the manner previously practiced, and because of his involvement and his family’s involvement in the underground Christian church.  

8. The applicant was interviewed by a delegate of the Minister on 8 October 2010, with his adviser present. 

9. The delegate made a decision refusing the visa application on 22 October, 2010.  The delegate said that “I believe that the applicant’s migration history and relatively limited knowledge of Christianity undermine his claims”.  In particular, the delegate noted that the applicant had made no mention of a fear of persecution since his arrival in Australia prior to making his protection visa application.  Although the applicant had disclosed knowledge of some parts of the bible, the delegate said:

   I am not satisfied the applicant has a level of knowledge of Christianity consistent with someone who had committed to Christianity through baptism as a young man approaching or nearing adulthood three years ago. 

   The delegate found:

   The applicant has prolonged his stay in Australia for reasons other than the Convention related reasons claimed.

10. The applicant appealed to the Refugee Review Tribunal, and was assisted by a solicitor, who submitted a purported letter from the head of his town Local Church, confirming that the applicant had “participated in church life increasingly and was baptised in 2007”. The solicitor also made a lengthy submission addressing the legal and factual issues in the case. 

11. The applicant attended two hearings on 7 December and 9 December, 2010.  The transcript of the hearings is not in evidence, and I rely upon the description of the hearings given by the Tribunal in its statement of reasons.   

12. According to the Tribunal’s description, it questioned the applicant about details of his life in China, his knowledge of his parents’ situation since he left China, the details of his two detentions, and his attendances at church in China, including his baptism.  The Tribunal invited, and received, explanations from the applicant as to why he waited until September 2010 to lodge a protection visa application, about the contents of a document which he had submitted to the Department in October 2009, and about what he had told Department officers at three interviews before making the protection visa application. 

13. At the resumed hearing, the Tribunal continued this questioning, and put to the applicant concerns in relation to his delay in making refugee claims and about other matters including his religious activities in China and Australia.  It explored with the applicant whether the church that he claimed to have attended in China was also known as the “Shouters Church”.  The applicant claimed that it was.  The Tribunal discussed generally the situation of Christian churches in China, and the applicant revealed that he had done some research on these matters on the internet.

14. The Tribunal said that it followed procedures under s.424AA in relation to information required to be put to the applicant, which was derived from information which had not been presented by the applicant to the Department or the Tribunal in relation to the protection visa application.  No point is now taken by the applicant in relation to these matters, and no defect in its procedures is apparent to me unaided by submissions.

15. The Tribunal made a decision on 7 January 2011, affirming the delegate’s decision.  In its findings and reasons, the Tribunal identified the refugee claims made by the applicant.  It expressed a general opinion adverse to his credibility:

    Having had the opportunity to speak directly with the applicant for several hours, the applicant did not impress the Tribunal as a reliable, credible and truthful witness.

16. The Tribunal made some general criticisms of his evidence, and then set out a number of reasons for not being satisfied that he or his parents were members of an underground Christian church in China as claimed, nor that they had suffered persecution as a result.  These adverse findings led it to conclude that there was no evidence to indicate that the applicant or his parents “are or were of adverse interest to the Chinese authorities for any other reason”.  It concluded:

    While the Tribunal accepts that the applicant has participated in some Christian church activities in Australia, the Tribunal is not satisfied that he participated in these activities otherwise than for the purpose of strengthening his claims to be a refugee.  The Tribunal is not satisfied that the applicant is a genuine Christian, nor that he would seek to participate in the unregistered Christian church on his return to China. As a result the Tribunal is not satisfied that the applicant faces a real chance of persecution should he return to the PRC, now or in the foreseeable future.  Therefore, the Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for any Convention related reason. Accordingly, the Tribunal is not satisfied that the applicant is a refugee.

17. Before arriving at that ultimate conclusion, the Tribunal discussed a number of matters which explained its adverse conclusions.  This reasoning commenced with a consideration of the applicant’s delay in lodging and articulating refugee claims.  The Tribunal did not accept his explanations based on ignorance, finding them unpersuasive “in the light of the evidence before the Tribunal that the applicant had and has access to significant networks within Australia and China through which he could access information as to how to seek protection in Australia if he was truly in fear of persecution in China as claimed”.  It concluded that his delays were:

    Inconsistent with his claims to have experienced in the past and to fear in the future adverse treatment by the Chinese authorities on account of his family’s religion.

18. It said:

    The Tribunal’s concerns are compounded by information before the Tribunal which reveals that the applicant had several communications with the Department in 2009 and 2010 during which he had the opportunity to articulate his refugee claims.

19. It explained these opportunities, and the applicant’s evidence concerning them.  It accepted some of his evidence explaining what he said to the Department officers, although noting that this included providing some false information to the Department.  The Tribunal noted that the applicant’s passport had been issued prior to his claimed detention in China in March and December, 2006.  The Tribunal considered the applicant’s evidence about his claimed detentions and found what it thought were some vague and inconsistent aspects, and some later exaggeration in relation to his situation and the claimed position of his parents. 

20. The Tribunal then discussed reasons why it was not satisfied that he “is currently a practising Christian nor that he was a practising Christian in China”.  It said:

    While the applicant demonstrated some knowledge of aspects of Christianity in his evidence to the Tribunal, for the reasons that follow the applicant’s evidence impressed the Tribunal as having been learnt for the purpose of supporting the refugee claims made rather than reflecting his faith. 

21. The Tribunal illustrated this by making a number of points of varying degrees of persuasiveness, and I shall refer to some of these points further below where they were criticised by the applicant before me.

22. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  Although his application has been formulated as seeking only “a declaration that the decision of the Refugee Review Tribunal is affected by legal error”, it is appropriate to approach the matter on the basis that, if successful, the relief would be orders of the nature of certiorari and mandamus.  I have power to grant relief only if the Tribunal’s decision was affected by jurisdictional error.  I do not have power to decide whether the applicant should have been found to be a refugee, nor whether he should be given any permission to stay in Australia.

23. The application contains two grounds:

    1.The Tribunal failed to exercise its discretion pursuant to s.427(1)(d) of the Migration Act in regard to a failure to obtain a registered translator as to the appellant’s interviews with the Department. This entailed a failure to complete the exercise of its jurisdiction pursuant to s.414 of the Migration Act.

    2.The Tribunal failed to exercise its discretion to seek expert psychiatric advice about the long term impact on a 15 year old youth of his and his brother’s and his parent’s persecution in China on the applicant’s responses to the Departmental interviews about his visa status.  Instead, it used what it should have recognised as symptoms of post traumatic stress to find against his credibility.

24. I have difficulties understanding these grounds, which appear to have been formulated with the help of advisers, and have not been further explained to me in any written or oral submissions.  Doing the best I can, I do not consider that they have any substance. 

25. Ground 1 appears to complain that the Tribunal should have exercised a power to investigate the circumstances of the applicant’s interviews with the Department officers prior to the protection visa application, and to have given weight to the fact that no “registered translator” was used. However, in my opinion, there was no obligation on the Tribunal to conduct that investigation, whether under s.427(1)(d) or any other power (see Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 273 ALR 223 at [20] to [24] and [88]).

26. Moreover, the applicant does not appear to dispute the notes of those interviews which were taken into consideration by the Tribunal, insofar as they indicated that he had made no claims to fear returning to China for a Convention reason.  It is difficult, therefore, to see how the suggested investigation could have helped the applicant.

27. In relation to the second ground in the application, the above recent authority of the High Court points to the absence of any duty on the part of the Tribunal to investigate the applicant’s psychiatric state or seek “expert psychiatric advice” of the nature suggested.  There was no evidence that the Tribunal was ever invited to perform such an investigation nor, in my opinion, was there any material before the Tribunal raising exceptional circumstances where this might have been required as a matter of law.  There was no evidence before the Tribunal, and there is no evidence before the Court, showing that the applicant’s ability to give evidence and participate in a hearing before the Tribunal was materially affected by a psychiatric condition (cf Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41).

28. The applicant was unrepresented at today’s hearing.  Without any notice, he made a series of points criticising the decision and procedures of the Tribunal.  I endeavoured to explore these with the applicant and with counsel for the Minister, and shall deal with what I consider to be the eight points he made.

29. The applicant’s first point was that the Tribunal unfairly gave weight to the absence of reference in his protection visa application to a period when he claims to have lived with his aunt before coming to Australia.  This point was indeed discussed with the applicant at the hearing (see paragraph 98 of the Tribunal’s reasons).  However, I can see no indication in the Tribunal’s statement of reasons, and its findings and reasons in particular, that the Tribunal did not accept the applicant’s explanation for omitting this particular period of short residence.  There is nothing in its reasons suggesting that it used this point adversely when reaching its ultimate decision.  I do not consider that this point made by the applicant identifies any defect, whether jurisdictional or otherwise, in the Tribunal’s decision.

30. The applicant’s second point made a series of general criticisms of the quality of interpretation at the hearings before the Tribunal.  As it emerged, I think the criticisms all related to the interpreter provided at the second hearing.  The applicant claims to have felt dissatisfied with the interpreter because he felt that the interpreter needed assistance to interpret some words.  The interpreter used a dictionary to look up other words, and the interpreter interpreted shortly or in an abbreviated fashion longer answers given by the applicant in Mandarin.  The applicant was also concerned because on one occasion the interpreter discussed the Tribunal’s question with the Tribunal before translating it to the applicant. 

31. I might accept that the types of conduct described might cause a participant at a hearing to lack confidence in the competence of the interpreter, but equally they might reveal no more than an interpreter doing a proper job of interpreting.  To attempt to give substance to the applicant’s complaints, I invited him to give particular instances. 

32. He referred me to a part of the hearing which appears to be summarised by the Tribunal at paragraph 91 of its reasons, where there was discussion with the interpreter about the Mandarin words for the name of the applicant’s church. The Tribunal has recorded that, at the end of the discussion, the interpreter told it that one of the characters “can mean ‘shouting’.  As I understood the applicant today, he complains that the interpreter needed his prompting to inform the Tribunal as to that. 

33. However, I cannot see, in the circumstances as described by the applicant, any possible material error in interpretation affecting the Tribunal’s proceedings.  The incident shows, indeed, that the Tribunal was given the evidence which the applicant wished it to receive. The incident, does not provide any evidence which could satisfy principles of jurisdictional error in relation to the provision of inadequate interpreting services (see Perera  v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230, VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 , M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212, and SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106 at [73])

34. The applicant also illustrated a concern that, as I understood him, the interpreter had used a dictionary to look up the applicant’s reference to the “Vatican” in the context, I assume, shown in paragraph 92 of the Tribunal’s decision.  Here too I can see no instance which could satisfy the above principles of jurisdictional error in relation to defects of interpretation services. 

1. Otherwise, I did not understand the applicant to have pointed to any incident raising a concern in relation to a particular part of the hearings held by the Tribunal.  The applicant’s criticisms were all unverified, in particular in the absence of a transcript of the hearing, and expert verification of any inadequacy in the interpreter’s conduct.  If I had thought that the applicant had raised a possibly material concern, I might have contemplated directing the production of the recording of the transcript and the adjournment of the hearing.  However I do not consider that his submissions gave rise to a sufficient concern to justify my following that procedure.  Taking into account all the criticisms the applicant made about the interpreter, I am not persuaded that he raised any arguable ground of jurisdictional error.

2. The applicant’s third point was that the Tribunal asked him only “a few questions” about his religion and his religious knowledge, compared to all the other questions it asked him.  He may be right in forming an impression that quantitatively the Tribunal spent a lot of time exploring details of his personal history rather than his religious life.  However it is clear that the Tribunal did spend a substantial part of the hearing, at least at the second hearing, exploring the applicant’s religious affiliations.  I do not consider that this criticism of the Tribunal made by the applicant points to any defect of procedure by the Tribunal, rather it shows the Tribunal performing its duty to test the applicant’s history in an effort to assess his credibility.  The case presented the Tribunal with a particular difficulty in detecting whether the applicant’s knowledge of the Christian religion, and of the Shouter Church in particular, indicated actual experience and commitment or only the researches of a person seeking to bolster a refugee claim.

3. The applicant’s fourth point touched upon reasoning of the Tribunal where it examined his evidence about his religious life, in particular his evidence about attending a Hurstville church in the first year that he came to Australia with his cousin.  The Tribunal referred to that evidence at paragraph 119 of its reasoning, at the end of its discussion of his religious beliefs.  The discussion ends with the sentence:

   Based on this evidence cumulatively, and in the context of the Tribunal’s concerns detailed in the balance of its reasons, the Tribunal is not satisfied that the applicant has attended church in Australia as frequently or as an expression of his faith as claimed, and considers that, while the applicant may have participated in some limited Christian church activity in Australia, he did so solely for the purpose strengthening his claims to be a refugee.

4. As I understood the gist of the applicant’s complaint, he suggested that there was a degree of illogicality or inconsistency because the Tribunal appears to accept that he had some attendances at the Hurstville church but found that they were “solely for the purpose of strengthening his claims to be a refugee”, but it also made findings criticising his delays in ever making refugee claims until after he was taken into detention. 

5. The Tribunal does appear to make a positive finding of a non-religious motivation in relation to the applicant’s attendances at churches in Australia, and might appear to be referring to his attendances in the applicant’s first year in Australia.  This is not absolutely clear from the Tribunal’s reasons, nor is it clear to me that the Tribunal actually intended to give a positive conclusion in relation to the applicant’s motives, noting that in its ultimate conclusions at paragraph 120, which I quoted above, the Tribunal’s finding is expressed only as a lack of satisfaction that he had participated in Christian activities in Australia otherwise than “for the purpose of strengthening his claims to be a refugee”. 

6. Ultimately, I consider that this part of the Tribunal’s decision is poorly expressed, and may contain elements of illogicality concerning the applicant’s motives for going to the Hurstville church with his cousin.  However, I am not persuaded that any such defect reveals jurisdictional error vitiating all of the reasoning of the Tribunal.  Its reasons for rejecting the applicant’s refugee claims on creditability grounds were based on numerous points other than the reasoning which is open to criticism.  Most of its points were clearly rational and open to it on the evidence before it.  In such circumstances, in my opinion, the principles of jurisdictional error arising from illogical and unreasonable reasoning are not satisfied (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, and Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122 at [32]‑[37]).

7. The applicant’s fifth point criticised the Tribunal for making a finding that he had given “a vague account of his claimed baptism in May 2007” (see paragraph 116 of the Tribunal’s reasons, and the Tribunal’s description of his evidence at paragraphs 65 and 97).  It is difficult for me to form any view whether it was open to the Tribunal to so characterise the applicant’s evidence, in the absence of a transcript.  The finding appears, in part, to be based on demeanour.  I am not persuaded that it was not open to the Tribunal to have formed that impression.  Moreover, any error in this respect would not, in my opinion, amount to jurisdictional error vitiating the Tribunal’s ultimate decision. 

8. The applicant’s sixth point made unparticularised criticisms of the quality of interpretation at his interview with the Minister’s delegate, who was considering the protection visa application.  In particular, he criticised the interpreter for “not understanding Christianity” and for saying something before the interview which the applicant thought was “promoting” Falun Gong.  However, I am unable to detect anything in the applicant’s submission which in fact pointed to a possible material defect in the quality of interpretation at that interview.  Moreover, I do not consider that any such flaw is shown to have materially affected the Tribunal’s consideration of the evidence of the interview, and its reasoning on the applicant’s claims.

9. The applicant’s seventh point concerned the Tribunal’s reasoning which referred to the applicant’s evidence that he had used the internet to obtain information about several things, including religious activities in China and the authorities’ reactions to it.  The Tribunal referred to the applicant’s admitted familiarity with internet research at two points in its findings and reasons.  At paragraph 104, it referred to his “expressed familiarity with and access to internet search engines in Australia including Google”, as one of the aspects which led it to find unpersuasive his claim that he lacked awareness that protection visa applications could be lodged in Australia before he was taken into detention.  There was noting in this reasoning which, in my opinion, evidenced any jurisdictional error.

10. More significant, I think, to the applicant’s submissions to me, were the Tribunal’s references at paragraph 118 to the applicant’s evidence of learning things “through the internet” about registered churches in China and the restrictions of the Chinese government on unregistered churches.  It was in the course of this evidence that the applicant appears to have made reference to the Vatican in a manner which the Tribunal found unclear.  I could see nothing in the Tribunal’s reasoning at either of these points which were not open to it, either as a matter of logic or on the evidence before it. 

11. As I understood it, the applicant argued that the Tribunal disbelieved his claimed genuine religious beliefs upon the basis that he could have learned all his information about Christianity from the internet.  He submitted that to disbelieve someone’s religious belief just because they might have acquired information about religion in that manner was irrational and unreasonable.  I accept that, if the Tribunal had reasoned generally that everyone with access to the internet should not be believed, then the applicant’s point might have had substance.  However, I do not consider that the Tribunal did reason in that way.  In my opinion, the Tribunal’s decision shows generally that it carefully considered all the evidence of the applicant and weighed its particular merits and demerits, insofar as it reflected on the applicant having a genuine religious commitment in China and in Australia. 

12. The applicant’s eighth point, which he raised in several of his previous points, including his seventh point, was that the defects in the Tribunal’s procedures and its reasoning which he pointed to showed that it had assessed his case with a closed mind or, in his words, that it was biased against him. 

13. I have considered all the points that the applicant made to illustrate or explain his concern about bias, but I am unpersuaded that he has pointed to any evidence giving substance to a concern that the Tribunal might not have assessed his evidence with a mind open to persuasion prior to reaching its decision (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425).

14. Taking into account all that the applicant has said to me today, I am not persuaded that any jurisdictional error has been identified in the evidence before me, or indeed pointed to in the submissions of the applicant which were unsupported by evidence.  For that reason, I must dismiss his application. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  14 April 2011