SZQBX v Minister for Immigration

[2011] FMCA 572

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQBX v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 572

MIGRATION – RRT decision – Chinese applicant claiming religious persecution – disbelieved by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36(2)(a), 91R(3), 430(1)

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: SZQBX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 569 of 2011

Judgment of: Smith FM

Hearing date: 19 July 2011

Delivered at: Sydney

Delivered on: 19 July 2011

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr I Temby

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 569 of 2011

SZQBX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant lodged an application for a protection visa on 1 September 2010, assisted by migration agent Weiming Qian.  In the application he claimed to have entered Australia in January 2009 on a “bogus passport” which he no longer possessed.  He presented a Chinese passport in the name under which he applied for protection, as showing his true identity.  According to Department records, the sister of that person had been in Australia since April 2008, but the Department had no other records relating to the applicant. 

2. A statement attached to the visa application claimed that the applicant feared persecution by the Government of the People’s Republic of China “because of my Christian religion”.  He claimed to have been introduced to Christianity in 2000 by his mother, and “I often went to underground family gatherings with my mother to study Bible, sing Psalms and pray to God”.  He said: “our family gatherings were not allowed by the local government”, and he heard that the local priest was arrested by police and detained.  He said: “our gatherings were secretly held”, but in October 2008 a gathering of 15 people was raided by police, and the applicant and other people were taken to the police station and kept for 24 hours.  He said: “one week later, a police came to check my home”, and threatened his family that if they were caught again they would be sent to a detention centre.  He said: “my family worried that I would be persecuted again.  They therefore found people to arrange me to go to Australia and find my sister”.  He claimed that since arriving in Australia, “I often go to the church here and got to know Brothers and Sisters here”. 

3. No corroboration of his claims to be a Christian or to have participated in Christian gatherings in China or Australia was shown to the Department of Immigration nor subsequently to the Refugee Review Tribunal.  The applicant attended an interview with a delegate of the Minister on 2 November 2010, and the delegate made a decision on 9 November 2010 refusing the visa application. 

4. The delegate accepted the details shown in the Chinese passport as showing the identity of the applicant, but thought that on his own evidence he had “no objection to attending a registered church in China”, and was not satisfied that the applicant had a well‑founded fear of persecution if he returned to China.  The delegate referred to the lapse of time between the applicant’s arrival in Australia and the lodgement of his application, and thought that this showed that “his fears of Convention‑based persecution are not substantial”. 

5. The applicant appealed to the Tribunal assisted by his migration agent, but submitted no further documents.  He attended a hearing of the Tribunal on 10 February 2011.  Neither party has tendered a transcript of the hearing, and I accept the Tribunal’s description given in its statement of reasons. 

6. According to the Tribunal, the applicant gave a history of attending underground Christian gatherings.  He said he had never been baptised himself, because “he could not understand a large part of the Bible”.  He repeated his claim to have been detained in October 2008, and he then recounted a substantial additional claim.  This was that “after this incident, the police regularly came to the applicant’s father’s restaurant and required both the applicant and his mother to go to the police station where they were held for one hour and questioned about attending illegal gatherings.  This occurred sometimes once per week or once every 2 weeks and continued while the applicant remained in China”.  He also said that the police continued to come to the restaurant checking on his mother and father, and this had so affected the restaurant business that it had been forced to close.  He also claimed his mother had been arrested twice and detained. 

7. The Tribunal questioned the applicant about discrepancies in his evidence and, in particular, why his written statement supporting his visa application had made no mention of the visits by police to the restaurant, and why he had not mentioned this at his interview with the delegate.  The Tribunal also questioned the applicant about why he had been in Australia for 18 months before applying for a visa, and why his passport contained a visa to enter Indonesia in December 2008.  The Tribunal also questioned the applicant to assess the extent of his Christian faith.  It put to him expressly that his failure to have mentioned the continuing visits by the police to the father’s restaurant at his interview with the delegate might lead it to conclude that he had been untruthful. 

8. The Tribunal made a decision on 23 February 2011, in which it affirmed the delegate’s decision.  In its “Findings and Reasons”,  the Tribunal explained its concerns about the applicant’s credibility, and drew particular attention to the applicant’s new evidence that the authorities came to his father’s business as often as once a week to check on the applicant and his mother.  The Tribunal thought that, if this were true, it showed a high degree of interest in the applicant and his mother, and would be evidence of a significant risk.  It also thought that, if it were true, it would have been mentioned earlier.  The Tribunal concluded that it was “a fabrication and reflected poorly on the applicant’s credibility”. 

9. The Tribunal referred to other aspects of the applicant’s evidence which caused it to disbelieve the applicant, including some discrepancies, the vagueness of his evidence about his claimed Christian faith, and his delay in seeking protection.  The Tribunal concluded that “the applicant is an untruthful witness and the account he has put forward on which his refugee claim is based is false”.  It said that it “accepts no more than that the applicant comes from a village in Fujian province and he went to school in that province”.  The Tribunal said it was “satisfied that the applicant is not a Christian and has no commitment to that religion”. 

10. The Tribunal said that the applicant may have been to church in Australia, but considered that this conduct was required to be disregarded under s.91R(3) of the Migration Act 1958 (Cth).

11. The Tribunal said there was no credible evidence that the Chinese authorities had any interest in the applicant, and it concluded: 

    80.On the evidence before the Tribunal which it accepts, namely that the applicant is from a village in Fujian and attended school in that province, there is not a real chance the applicant will suffer persecution for a convention reason if he returns to China.  Accordingly, his fear of persecution for a convention reason is not well founded. 

    CONCLUSIONS 

    81.The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a Protection visa.

12. 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 is affected by jurisdictional error.  I do not myself have power to decide whether the applicant should have been believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia. 

13. The applicant’s grounds for his application are set out in his original application, and he has not added to them, nor explained them by way of amended application or written or oral submissions.  The grounds are: 

    1.The Refugee Review Tribunal (RRT) failed to comply with the duties imposed by section 430(1). 

    2.The RRT discounted my risk of being persecuted by the Chinese authorities by stating that I can practice my Christianity in a registered church.  This is a judicial error because the RRT did not apply the well‑founded fear test as per MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559.

    3.The RRT did not consider my application and claim fairly.  RRT find that I am not a reliable witness because I did not provide relevant and significant evidence to the Department of Immigration and Citizenship, however did you this evidence at the Tribunal hearing.  The RRT did not provide reasoning to this finding.  Hence, it gives grounds to believe that the RRT did not weight my evidence and taking my evidence into consideration.  Therefore, RRT has denied my procedural fairness. 

14. In relation to Ground 1, I am unable to identify any failure by the Tribunal to comply with duties under s.430(1), which concerns the contents of a statement of reasons required to be given by the Tribunal. Moreover, any non‑compliance with that section does not necessarily give rise to jurisdictional error, although it may evidence error (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]‑[35], [68]‑[69], [75]). Unaided by any submissions, I am unable to draw any inference of error in the present case.

15. In relation to Ground 2, I am unable to identify any error by the Tribunal in relation to its application of “the well‑founded fear test”, as discussed in Guo’s case.  It is open to the Tribunal, even necessary, for it to make findings about claimed past events to assist its consideration as to what will happen in the future, since “past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence” (see Guo at 574‑575).

16. The present Tribunal therefore made no error by assessing the applicant’s refugee status by reference to the truth of his claimed history.  Having disbelieved the applicant, it was open to it to conclude at paragraph 80, that there was not a real chance that the applicant would suffer persecution for a Convention reason if he returned to China.  I am unable to detect in that reasoning any error amounting to jurisdictional error. 

17. The contention in Ground 3 is difficult to understand.  It appears to challenge the Tribunal’s adverse conclusion on credibility which was based on the omission of significant claims from the visa application statement and interview with the delegate.  However, in my opinion, that reasoning was open to the Tribunal on the evidence before it, and provided a rational basis upon which to assess the credibility of the applicant’s whole claimed history.  The Tribunal plainly did “provide reasoning to this finding”. 

18. I am unable to detect any jurisdictional error arising from the weight given by the Tribunal to the applicant’s belated presentation of highly significant claims, whether described as error of “procedural fairness” or some other characterisation. 

19. As I have noted, the applicant today had nothing to say to the Court. 

20. Considering all the material before me, I am unpersuaded that the Tribunal’s decision was affected by any jurisdictional error.  It was therefore a privative clause decision, 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

Date:  26 July 2011