SZQAP v Minister for Immigration

[2011] FMCA 457

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQAP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 457

MIGRATION – Merits review – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs & Khawar (2002) 210 CLR 1
SZDFZ & The Minister (2008) 168 FCR 1

First Applicant: SZQAP

Second Applicant: SZQAQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 469 of 2011

Judgment of: Raphael FM

Hearing date: 8 June 2011

Date of Last Submission: 8 June 2011

Delivered at: Sydney

Delivered on: 8 June 2011

REPRESENTATION

For the Applicants: In person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs assessed at the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 469 of 2011

SZQAP

First Applicant

SZQAQ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of China who arrived in Australia on

   
   

   25 May 2010 and who applied to the Department of Immigration and Citizenship for protection (Class A) visas on 30 July 2010. 

   
   

   On 28 October 2010 a delegate of the Minister refused to grant protection visas and on 8 November 2010 the applicants applied for review of that decision from the Refugee Review Tribunal.  The principal applicant is the wife of the second applicant.  She appeared before the Tribunal at a hearing.  The husband stated that he was a person who did not have any independent claims for a protection visa.  On 11 February 2011 the Tribunal determined to affirm the decision under review and handed that decision down on 14 February.

2. The Convention ground upon which the principal applicant claims to be a person to whom Australia owes protection obligations is that of religion.  At [87 CB 159] the Tribunal (to my mind accurately) provides a summary of the applicant's claims:

   “…She claims to have joined a Catholic church held in her village committee hall in December 2008 at the suggestion of her mother-in-law.  She claims to have attended Church services every week which were conducted by a priest and to have been baptised.  She claims to have had a Bible in China and to have read the Bible.  In March 2010, she claims that the Saturday evening service was interrupted by police who asked the congregation (of about 70 - 80 people) to disburse as they were gathering illegally and who attempted to detain the priest, who the police claimed was a bogus priest.  She claims to have been arrested when she refused to disperse and attempted to prevent the police from arresting the priest.  She claims to have continued to argue with the police at the police station.  She claims to have been beaten and abused by police and held overnight before being released in the morning after payment of a fine.  She claims that the police and village committee officials visited her on several occasions after her release to pressure her into denouncing her beliefs, but she refused to do so.  She claims that she moved away from her home to avoid harassment and her husband then arranged to depart China to avoid persecution. 

   
   

   In Australia the applicant claims to have attended a Catholic church at Flemington in Sydney since June 2010.”

3. The Tribunal questioned the applicant upon her claims and also upon her understanding of the Catholic faith.  The questions which the Tribunal put to the applicant and her responses are set out in considerable detail in the Tribunal's decision record.  The Tribunal accepted that the applicant displayed some knowledge of Catholicism and Christianity generally, although it felt that there were some glaring gaps.  It described the matters that she was able to explain, but was concerned about the status of her knowledge.  It stated at [96] CB 162:

   “Although the applicant had heard the word ‘pope’, and identified the current leader of the Catholic Church by writing the name Benedict, she did not know who or what the Pope was, or even whether he was a person.  The authority of the Pope is generally considered to be a defining belief for Catholics, and loyalty to the Pope has been a defining feature of the unregistered Catholic Churches in China.  Even if the applicant had not become aware of the prominence of the Pope in the Catholic Church in China, for example if her church was in some way not loyal to the Pope, given that she believed that ‘Benedict’ was the head of the Catholic church, the Tribunal would have expected someone committed to the religion to have inquired who or what ‘Benedict’ was.”

4. The essence of the Tribunal's conclusions about the applicant was that it had significant concerns about her evidence which caused it to find that she was not a credible or truthful witness in relation to her experiences in China.  At [CB 89 to 93] the Tribunal sets out the inconsistencies in the applicant's evidence which led it to this conclusion.  Essentially, it indicated that her responses were implausible and internally inconsistent on a number of occasions.  The Tribunal accepted that whilst these individually may not have been significant, on a cumulative basis they led it to form the opinion that the applicant was changing her evidence in response to concerns or questions raised by the Tribunal.  At [93] CB 161 the Tribunal sets out examples of those changes of evidence.

5. The Tribunal concluded that the applicant had not become an adherent of the Catholic Church in China, had not been present at the church when the leader of the church was arrested and had not interfered with the arresting officials nor herself become arrested.  It concluded that it could not accept her claims that she was a committed Catholic or that she had practiced as a Catholic for over two years.  It did not accept her story of baptism.

6. In regard to the applicant's attendance at church in Australia, the Tribunal indicated at [99] CB 162-163 that:

   “[She] displayed some knowledge of Catholic or Christian beliefs and practices at hearing.  The applicant has not provided any evidence in support of her attendance at church in Australia, but the Tribunal accepts that she has attended church in Australia on at least one occasion.  In light of concerns about the applicant's claims detailed above, however, the Tribunal has formed the view that the applicant's attendance at church in Australia and the acquisition of her knowledge about Catholicism was undertaken solely for the purpose of strengthening her claims for protection.  The Tribunal considers that the applicant has consciously sought to acquire knowledge about Catholicism through attendance at church in Australia and through self-study.  Some aspects of the applicant's own evidence point to this:  the fact that she was unaware of the State’s regulation of the Catholic Church in China; her evidence that she had not long ago received a book called ‘The Bible and Me’ (from which her favourite ‘Bible story’ was related); and her ability to reproduce the character for ‘Benedict’, but her lack of knowledge about who the Pope was, or even that he was a person [leads the Tribunal to be] not satisfied that these activities were undertaken otherwise than for the purpose of strengthening her claim to be a refugee.  

   
   

   In accordance with s.91R(3), the Tribunal disregards the applicant's conduct since arriving in Australia in determining whether the applicant has a well-founded fear of persecution.”

7. On 16 March 2011 the applicant filed an application for review with this court.  The grounds of application were that:

   “1. RRT did not consider our application fairly.

   2. We believe in Catholicis [sic] and we were persecuted by the local government. 

   3. RRT did not weigh our evidence.  We got fear to go back to China.”

   On 17 May 2011, as a result of the assistance of a practitioner from the Minister's scheme, an amended application was filed.  This application was in the following form:

   “1. The Tribunal fell into jurisdictional error because it misconstrued s91R of the Act.

   Particulars

   a.    In its reasons for decision [at 72], the Tribunal records that it “explained [to the applicant at hearing] that for ill-treatment to be considered persecution, it needed to be directed at someone for a Convention reason.”

   b.    Under s 91R(2)(c), “ill-treatment” can constitute “serious harm” amounting to persecution.

   c.    “Ill-treatment” need not be directed at some one for a Convention reason in order to amount to persecution.”

8. The impugned statement comes at [72] CB 155 of the Tribunal decision record.  It is not a part of the findings and reasons.  The relevant section reads as follows:

   “The Tribunal suggested that there was a question in the mind of the Tribunal about whether the treatment of the police was directed at her because of her religious practice or if it was directed at her because they were trying to do their duty and perhaps because they wanted to extort some money from her.  The Tribunal explained that for ill-treatment to be considered persecution, it needed to be directed at someone for a Convention reason.  It said that police are notoriously brutal and corrupt in many parts of the world, including China, but if they are not targeting her because of her religion, it may not fit the definition.  The applicant said that the police came to the site and told everyone they were gathering there illegally and that the church service was illegal, and the police asked them to disperse and they wanted to take the priest away.  They didn’t let the police do that.  They were assaulted at that location and assaulted again after they were taken back to the police station.  The police action is government action.” (emphasis added)

9. Of course "serious harm" constituting persecution must be "for reasons of" a Convention ground in a way that provides nexus between the two elements:  Minister for Immigration & Multicultural Affairs & Khawar (2002) 210 CLR 1 [at 119 per Kirby J]. I do not believe it is seriously an issue that the type of harm that the applicant described could constitute serious harm for the purposes of the Convention. If it was found to be Convention related then the applicant could be held to fall within the provisions of the Migration Act 1958 and be granted the appropriate visa.

10. However, in this particular case, the decision of the Tribunal rested not on the nature of the violence inflicted upon the applicant, its seriousness or its Convention nexus, but upon whether it occurred at all.  The Tribunal concluded that it did not.  It did so based upon its lack of satisfaction of the evidence produced by the applicant. 

    
    

    It explained how it came to its decision in considerable detail.  I am satisfied that the Tribunal was entitled to come to this view and that it is the sole arbiter of the merits of the applicant's case.  The fact that the Tribunal may have been somewhat loose in its discussion of the relevance of the Convention is unfortunate but does not, to my mind, infect the decision with jurisdictional error.

11. When the applicant appeared before me today she indicated that she wished to rely upon the amended application.  She told me that she felt that the experiences she had suffered complied with the definition of a refugee within the Convention.  I agree that if the Tribunal had come to the conclusion that she had suffered as she said she had, then she may well have fallen within the Convention definitions, but the Tribunal did not find that she had so suffered and I am not in a position to interfere with that finding.

12. The applicant told me that she believed that the Tribunal was unreasonable.  In SZDFZ & The Minister (2008) 168 FCR 1 Flick J said at [40]:

    “In reaching the conclusion that there is jurisdictional error, it is recognised that an error of fact does not of itself normally constitute error of law, let alone jurisdictional error: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.  In a context where there are competing facts, the weight to be ascribed to particular pieces of evidence is a matter entrusted by the legislature to the Tribunal for resolution.  Mere disagreement with the ultimate finding of fact made does not expose error of law.  And what may be described as “illogical or irrational” inferences drawn from the facts before the Tribunal may often be an unhelpful characterisation of the reasoning process and may amount to no more than a conclusion that a Court may have reached a different factual conclusion: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [8]-[9] per Gleeson CJ. See also: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [22]-[30] per Tamberlin, Emmett and Weinberg JJ.”

13. In the instant case the applicant disagrees with the Tribunal's findings.  It matters not whether this is a disagreement that I share, because the applicant is seeking from this court impermissible merits review and that cannot be provided.  In the circumstances, I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it reached its decision and the application must be dismissed.  The applicant shall pay the respondent's costs which I assess in the sum of $3,500.00.

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

Associate: 

Date:  16 June 2011