SZOZR v Minister for Immigration

[2011] FMCA 395

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOZR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 395

MIGRATION – Review of decision of RRT – where Tribunal questioned applicant closely upon his religious knowledge and practice – where applicant’s grounds do not particularise a jurisdictional error.

Minister for Immigration v SZNDS [2010] 240 CLR 611
Minister of Immigration v SZOCT [2010] FCAFC 159

Applicant: SZOZR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 256 of 2011

Judgment of: Raphael FM

Hearing date: 18 May 2011

Date of Last Submission: 18 May 2011

Delivered at: Sydney

Delivered on: 18 May 2011

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. The applicant to pay the First Respondent’s costs assessed in the sum of $5,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 256 of 2011

SZOZR

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 4 December 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 11 November 2009.  On 21 April 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 considered the application and invited the applicant to a hearing which he attended.  On 12 January 2011 the Tribunal determined to affirm the decision under review and handed that decision down on the same day.

2. The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of religion.  The applicant claimed that he was an adherent of a Chinese local church.  He told that both his grandparents and his parents were all Christians and that his grandfather had been jailed for three years after having a church gathering at his home.  The applicant told that at university he had founded a small bible study group which had run into difficulties with the authorities.  After receiving a formal warning he was eventually expelled from his university for organising an evil cult activity.  The applicant told that his parents wished to send him away and attempted to obtain a student visa for him for Australia.  When that failed they enlisted the assistance of a snakehead and he was able to leave China and enter Australia on a false passport in December 2008.  By 11 January 2010 he had regularised his position and was able to provide the Tribunal with an official travel document in his own name.

3. The applicant was interviewed by the delegate who questioned him about his claims.  He indicated that there were five or six people in his study group and he also told the delegate that he had been to church five or six times in Australia only because he did not have a passport or visa and was scared.  He answered some basic questions about Christianity put to him by the delegate but he indicated that although he had prayed to God and he did have a bible he did not have time to read it.  He gave some examples of bible stories which are set out at [28] [CB 120] that do not indicate detailed knowledge of the book.

4. When the applicant appeared before the Tribunal he had clearly improved his knowledge of Christianity and was able to answer a number of questions put by the Tribunal.  He also indicated to the Tribunal that he went regularly to a local church in Sydney and that it was this type of church that he had belonged to in China.  At [56] [CB 124] the Tribunal explained to the applicant some of its concerns:

   “[56]When asked why he did not state he was a member of the Local Church either in his application or in his interview with the Department, the applicant said the Department did not ask him.  The Tribunal noted that the applicant had a migration agent when he made his claims.  He said he had told him or her about it.  The Tribunal said it was trying to work out whether what he was now saying was true.  The applicant said he had taken an oath to tell the truth.  The Tribunal noted that the applicant had not previously claimed he was a member of the Local Church and noted his knowledge of Christianity was limited.  The Tribunal said the applicant seemed to know a little about what it means to be a member of the Local Church but could not tell the Tribunal about ‘pray reading’ which is something Witness Lee talks about.  The Tribunal noted from the information provided to the Tribunal from the local church in Australia, that it would expect someone claiming to have attended the Local Church in China would be familiar with the term ‘pray reading’.  The Tribunal also noted that the applicant could not explain ‘God’s economy’ or the ‘economy of God’.  The Tribunal wrote it down for the interpreter so there could be no mistake.  The interpreter indicated there had been a mistake in the interpretation of this term.  The interpreter explained the term correctly.

   [57] When asked to explain the term ‘God’s economy’, the applicant did not answer.  The Tribunal noted that ‘God’s economy’ is his plan to fulfil the desire of his heart.  When asked whether he had heard the term before, the applicant said he knew it a little.”

5. The Tribunal also questioned the applicant about his knowledge of Watchman Nee about whom the applicant said he knew a little.  The Tribunal also questioned the applicant about why he had delayed in making his application for a protection visa and the applicant responded that he did not understand about such things when he first came to Australia and it was not until October 2009 that a friend informed him that he could make this application.

   “When asked why he left China when he did, the applicant said he had not completed his university study because of persecution and could not find a job.  His life in China was very difficult.… When asked why he could not stay in China, the applicant said he could not really live in the current economic situation without having graduated from university.” [67] [CB 126]

6. The Tribunal questioned the applicant about his baptism.  The applicant told that he had been baptised both in China and in Australia.  The Tribunal questioned him again about his baptism in Australia and the applicant said that he would forward to the Tribunal some photographs and documentary proof of that baptism.  He did not do so.

7. In the Tribunal’s findings and reasons it rehearsed the history of the applicant’s claims that had been given to it and referred to certain independent country information that was produced in the decision document.  It concluded at [86] [CB 132]:

   “In the Tribunal’s opinion, the applicant’s overall knowledge of the beliefs and practices of the Local Church was limited for someone who claims to have practiced since high school, who claims to have been under the influence of these beliefs since childhood and who claims to have founded a small Bible study group in the second year at the S University of Technology.  The Tribunal acknowledges that it may be difficult for applicants to articulate details about the beliefs and practices during a hearing situation.  However, the Tribunal is of the view that the applicant’s knowledge and understanding of the beliefs and practices of the Local Church is so limited for a person claiming to have commenced his practice in high school that it can not be explained by the difficulties of the hearing situation.”

   The Tribunal was also concerned about the applicant’s practice of Christianity whilst in this country and came to the conclusion that it could not be satisfied that he had done this otherwise than for the purpose of strengthening his claim to be a refugee and disregarded that practice.  The Tribunal concluded that it could not be satisfied that the applicant was a committed member of a local church who would, upon return to China, continue to practice there.  The Tribunal was of the view that the applicant was not a genuine refugee.

8. Upon a first reading of the Tribunal’s decision record one might be tempted to the view that at times the Tribunal came dangerously near setting itself up as an arbiter of doctrine and possibly an arbiter of the level of knowledge to be expected of one who claimed to have practiced Christianity through a local church in a manner that might have fallen foul of the views expressed by the High Court in Minister for Immigration v SZNDS [2010] 240 CLR 611. However, a closer reading would indicate, at least to this court, that the Tribunal was basing its questions upon information that it had as to the likely level of knowledge of such a person. This evidence came from independent country information that the Tribunal explained to the applicant. Therefore, the Tribunal was not setting itself up as an arbiter of doctrine or an arbiter of the level of knowledge to be expected, but was giving its opinion as to whether the level of knowledge held by the applicant was consistent with the evidence it had suggested the applicant should have held. Activity of this type is quite legitimate. Mr Riley in his helpful submissions has provided the court with an extract of the decision of the full bench of the Federal Court in Minister of Immigration v SZOCT [2010] FCAFC 159 in which the majority were prepared to accept that there was no jurisdictional error in a form of questioning that was considerably more detailed than the one put to this particular applicant.

9. As Buchanan J said in that decision at [50]:

   “I take it to be established by the authorities to which I have referred that it is not impermissible, despite the observations of Gray J in Wang, for the RRT to enquire about the depth of knowledge possessed by an applicant for a protection visa when claims for the protection visa are based on the suggested likelihood of persecution for religious reasons. On the other hand, there must be a satisfactorily disclosed foundation from which any conclusion, that adequate knowledge is not held, may proceed. There must also be a sufficient and proper foundation for any conclusion that inadequacy or defects in apparent knowledge falsify a claim to religious conviction and the likelihood of consequent persecution. The material obtained by the RRT from its examination must not be put to use in a way which is so irrational as to suggest the absence of a proper foundation for the stated conclusions.”

   I am satisfied that in the instant case that the Tribunal did not overstep the bounds set out in the above extracted paragraph.

10. On 16 February 2011 the applicant filed with this court an application for review of the decision of the Tribunal.  There were two grounds of application, the first was:

    “The applicant claims that the Tribunal’s decision was affected by judicial error in finding the applicant is not a faithful Christian.  The applicant claims to be a faithful Christian and is a member of the local church.”

    The applicant does not identify the judicial error into which the Tribunal is alleged to have fallen and, as I have said on many occasions, it is not for this court to try and guess what the applicant may have meant.  It is as much for the applicant to make his own case before this court, as it is for him to make his own case before the Tribunal.  It appears to me from the wording of the ground that what the applicant is seeking is impermissible merits review.

11. The second ground of application is:

    “The Tribunal failed to give sufficient consideration to the applicant’s religious practice in Australia.  The Tribunal incorrectly applied s91R(3) of the Act.  The applicant claims that he has been baptised in Australia.”

    This again appears to be a claim for merits review but in so far as it takes issue with the Tribunal’s views about the applicant’s baptism one is reminded of the fact that the Tribunal gave the applicant additional time to provide evidence of his baptism but he did not do so.  When he appeared before me today he told me that he had asked people for assistance but they had not been helpful.  But that is not something he told the Tribunal and therefore, on the basis of the evidence before it the Tribunal was entitled to come to the decision it did concerning the applicant’s Christian activities whilst in Australia.

12. It would follow from the observations that had been made above that I am of the view that the applicant has not established that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. 

13. I dismiss the application.  I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,200.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  27 May 2011