SZQGK v Minister for Immigration
[2011] FMCA 938
•9 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGK v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 938 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 422B, 424, 424A, 424AA, 430 |
| Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 |
| Applicant: | SZQGK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1054 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 9 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,370.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1054 of 2011
| SZQGK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 28 April 2011. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia and applied for a protection visa in October 2010. Her application was refused and she sought review by the Tribunal.
The Tribunal invited her to a hearing on 3 March 2011 which she attended. The applicant also attended two subsequent continuations of the hearing on 1 March 2011 and 1 April 2011. In the course of the hearing, in particular on the second hearing day, the Tribunal recorded that it put to the applicant matters for comment in accordance with s.424AA of the Migration Act 1958 (Cth).
In its reasons for decision the Tribunal set out in detail the claims made by the applicant in connection with her protection visa application, in her interview with the delegate and in the course of the hearings which it conducted. It referred to issues that it raised with the applicant and the applicant’s response.
In essence, the applicant claimed to fear persecution as a practising Christian in China. She claimed that she had attended a church in China and that she had been baptised. She provided the Department with a certificate recording her baptism and a photograph. She claimed that she recruited people to attend the church including members of her family, but that on one occasion the police entered the church and informed the congregation that it was an illegal gathering and arrested the pastor. The applicant claimed that subsequently she was also arrested by the police and that after her release she learned that the police were looking for her. She claimed that when she came to Australia she applied for protection and that she attended a church in Australia.
In its findings and reasons the Tribunal rejected the applicant’s claim to have a well-founded fear of persecution. It first found that the applicant’s account of her religious beliefs and practice, which it set out in considerable detail in its account of the Tribunal hearings, was “unconvincing and vague”. It stated that it made allowance for the fact that the applicant’s claim was that she attended church from February 2010 and on her own account “what she liked most about it was being with the other followers and singing songs or hymns”. On that basis the Tribunal stated that it did not expect the applicant to have a detailed knowledge of her religion or of the Bible. However the Tribunal found that the applicant had not been able to “give the words to any songs or hymns she sang at the church service even though that was a focal part of the service she liked”. It had regard to her explanation that the words were shown on a large screen. The Tribunal found however that the applicant could “reasonably be expected to recall at least some of the words to one of these songs”, but that she was unable to do so.
The Tribunal also had regard to the fact that when asked about her religious beliefs, the applicant’s responses at hearing were “very limited”. She had made “vague references to the book of Genesis and to Jesus curing diseases but very little else”. The Tribunal stated that it made allowance for the applicant’s claim that she “may hold Christian teachings or ideas in her heart rather than as knowledge she can readily articulate”, but was of the view that she could still reasonably be expected to “go beyond her limited responses when asked about her understanding of Christianity”.
The Tribunal also had regard to the fact that while the applicant said that “sermons or talks at the Sunday service she attended in China were in part based on passages from the Bible she had struggled to give examples”. It also found that she had been vague in her evidence about her church in China in that “she did not know how long it had been in existence by the time she joined”, that her account of her baptism was “vague”, that she knew “very little about the significance of her baptism” and that she was “unable to recall what the pastor said to each person being baptised, even though the same thing was said to each person and it was part of the baptism ceremony”. The Tribunal also had regard to inconsistencies in the applicant’s evidence about how many pastors there were at the church and who conducted the services. The Tribunal put such inconsistencies to the applicant pursuant to s.424AA of the Migration Act. It found her explanations for the discrepancy were unsatisfactory. The Tribunal was of the view that her accounts were all inconsistent for reasons which it gave.
The Tribunal found it implausible that the applicant had continued to “publicly proclaim her membership of the church” in China after the arrest of the pastor, as she claimed. It did not believe she would do so in circumstances where she claimed she had witnessed the police come to the church and arrest certain people (at which time she said she discovered the church was operating without the consent of the authorities) particularly as she had initially claimed that after the arrest of the pastor there were no Bible study classes for that reason. The Tribunal also had regard to the fact that the applicant’s evidence about Bible studies was conflicting. It set out the inconsistency in her evidence. It found that her explanation that she continued handing out leaflets to persons that led them to the church and that that should be counted as Bible study, to be a “convenient concoction to account for the clear inconsistency” between her statement that Bible studies were held after the arrest of the pastor and her initial evidence to the Tribunal that there were none.
It also found that the applicant’s evidence about her being in her former matrimonial home when the police came and arrested her to have been “inconsistent, confused and unconvincing” in a number of respects.
It set out the conflicting accounts given by the applicant of her arrest and her contradictory accounts of this event. It had regard to the fact that her statement in evidence to the delegate gave a “clear impression” that at the time she was arrested she was still living in the marital home with her husband, and that this was inconsistent with her evidence to the Tribunal that they had separated in 2005 and she lived elsewhere. It also had regard to the absence of a satisfactory explanation for this discrepancy.
In addition the Tribunal also had regard to its concerns about the applicant’s evidence that the police had confiscated church leaflets she was carrying in her handbag when reminded of her statement about confiscation of promotional materials, having regard to her failure to mention this aspect of her claim initially.
Finally the Tribunal had regard to the applicant’s evidence that she gave the police her husband’s address when she was questioned at the church in early July 2010, and her changed reason for why she gave that address to the police. It found her changing evidence and her account on this matter was “not credible”.
In light of these credibility issues the Tribunal formed the view that the applicant was not a credible witness. It found her account of attending a church in China, the church being raided by the police and her arrest to be false. It found that she did not have genuine commitment to Christianity and that there was no credible evidence as to the basis on which she attended a church in China.
The Tribunal acknowledged that the applicant had produced a photograph of a baptism ceremony and a baptism certificate but found that this did not show that she was committed to Christianity. In that respect the Tribunal noted the applicant’s claim that her son and sister were also baptised at the same time as her, when they hardly attended church. The Tribunal concluded from that the applicant’s own vagueness in relation to the baptism ceremony and the church’s claimed willingness to baptise her son and sister when they “rarely attended” was demonstrative of the fact that if it did occur it was not a ceremony of any “genuine significance”. It did not persuade the Tribunal that the applicant had attended a church on the basis she had put forward or that she was a committed Christian.
The Tribunal considered the applicant’s claims to have attended church in Australia in the absence of any credible evidence as to “how often or on what basis”. It referred to the fact that it had put its concerns in that respect to her at the hearing having regard to s.91R(3) of the Migration Act. In light of the applicant’s overall lack of credibility it found that her “church attendance in Australia, to whatever degree that has occurred, has not been engaged in otherwise than for the purpose of strengthening her refugee claim, and must be disregarded”.
The Tribunal accepted the applicant’s claim that she was from a named city and province and was married with one child and that her husband had been convicted of a drug-related offence. It also accepted that the applicant had undergone a baptism ceremony at a church in China. However it found that she had no commitment to Christianity and that there was no credible evidence that the applicant had attended the church in China regularly or on any basis. Accordingly the Tribunal found the applicant would not attend church on her return to China and hence any fear of persecution based on religion was not well-founded. It found no credible evidence that the applicant had a well-founded fear of persecution based on any Convention ground.
The Tribunal considered the fact that the applicant had referred to suffering violence from her husband in the past and claimed to have a scar from beatings she had received. The Tribunal expressed scepticism about these claims, given the applicant’s lack of credibility about what she claimed were the reasons she left China. However it proceeded on the basis that her claims about violence were true, but had regard to the fact that she said she had not encountered any violence from her husband since they separated in 2005. While the applicant had mentioned that her husband continued to try to make contact with her after that date, she did not claim to have suffered persecution on that ground and there was no evidence that she had suffered serious harm from her husband after they separated. The Tribunal found the husband’s continued attempts to make contact with the applicant did not amount to serious harm and that she was “able to conduct her own life after they separated in maintaining employment, travelling out of China briefly and caring for her son”.
The Tribunal was not satisfied the applicant was a person to whom Australia had protection obligations. It affirmed the delegate’s decision.
The applicant sought review of the Tribunal’s decision by application filed in this court on 24 May 2011. There are two grounds in the application which are repeated in the accompanying affidavit. The applicant did not file written submissions, but was given an opportunity to make oral submissions at the hearing.
The first ground is as follows:
When the decision was made on my review application Tribunal did not act in a way that is fair and just – s.422B(3) Migration Act. When I first lodged my application for protection I included my certificate of baptism which was issued by my church in China and which is also my identity of Christianity. However the Tribunal decided that it’s false. This document is very important not only to my life but also to the review application. The Tribunal should have taken the responsibility to further investigate about its credibility. Further in the paragraph 89 of the decision the Tribunal argued that I could not remember any words of the songs or hymns sung in my church in China and therefore I don’t have commitment to Christianity. I am sure there are not many people in reality who go to the church once a week and can clearly recall the words of the songs they sing in the church.
There are a number of issues raised by this ground. In oral submissions the applicant asserted that her baptism certificate was genuine, that she was told that she was not able to sing hymns or Bible songs by the Tribunal but that she had been very nervous at the Tribunal hearing and it was not the right atmosphere in which to sing a hymn, and that it was a matter of fact that she was baptised in the named church in China.
Dealing first with the reference to s.422B(3) of the Act, this is not a general requirement of fairness but rather requires that in applying Division 4 of Part 7 of the Act the Tribunal must act in a way that is fair and just. No specific failure to comply with any of the provisions of Division 4 of Part 7 is asserted and nor is any apparent on the material before the court.
As the Tribunal recorded in its reasons for decision, it observed s.424AA of the Act, in particular in relation to the oral evidence given the applicant to the delegate. In such circumstances by virtue of s.424A(2A) it was not obliged to give particulars of such information to the applicant in the manner provided for in s.424A(1) of the Act.
The Tribunal properly invited the applicant to attend a Tribunal hearing to give evidence and make submissions and present arguments relating to the issues arising in relation to the decision under review. There is nothing in the evidence before the court to suggest that the Tribunal failed to raise dispositive issues with the applicant. Indeed, as it recorded, the Tribunal conducted a number of hearings and raised issues of concern with the applicant about her claims, in particular about inconsistencies and lack of clarity. It gave her the opportunity to elaborate on her claims and her explanations.
There is nothing in the Tribunal reasons for decision to establish jurisdictional error based on any argument of illogicality or irrationality insofar as that is intended to be contended (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16). In particular, it has not been established that the Tribunal’s determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. Nor is any unreasonableness in the Wednesbury unreasonableness sense apparent on the Tribunal decision.
Insofar as this ground takes issue with the Tribunal’s conclusion that the applicant was not credible, credibility findings are a matter for the Tribunal as the primary decision maker par excellence – see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 and insofar as the applicant seeks merits review, merits review is not available in this court.
The applicant took issue with two particular aspects of the Tribunal findings. First she complained about the Tribunal’s treatment of her certificate of baptism. She claimed that the Tribunal decided that it was false. However that is not the case. The Tribunal accepted that the applicant had undergone a baptism ceremony at a church in China, but it found that she had no commitment to Christianity. This is not a case in which the Tribunal found that the documentation provided by the applicant was false. Rather, it did not accept the applicant’s account of attending a church in China in the manner in which she claimed she had done so, or that she participated in church activities, or her claims about events in China, including a raid by police and her being arrested. The Tribunal gave reasons for its findings that it was not satisfied that the baptism ceremony was a ceremony of any genuine significance. It was not persuaded that the applicant had attended the church in China on the basis she had put forward or that she was a committed Christian.
The Tribunal reached those findings having regard to a number of factors, including the applicant’s unconvincing and vague evidence in relation to religion, as well as other matters of concern in relation to her evidence in various respects which the Tribunal found inconsistent, confused and unconvincing, as set out above.
The Tribunal’s treatment of the baptism certificate does not demonstrate any jurisdictional error. In particular there was no obligation on the Tribunal to investigate further the credibility of the baptism certificate. The Tribunal accepted that the applicant was baptised, but not that she had a commitment to Christianity.
The applicant also took issue with the Tribunal’s approach to her knowledge of religion, insofar as it had regard to the fact that she could not recall any of the words to the songs that she liked as part of the church service in China.
I note first that, contrary to the applicant’s contention, the Tribunal did not make adverse findings in relation to the applicant’s commitment to Christianity based only this factor. Further, according to its account of the Tribunal hearing it did not ask her to sing but rather if she knew the words to any songs. In any event, the Tribunal also asked the applicant about her religious beliefs. In its findings and reasons the Tribunal made allowance for the applicant’s claims that she held Christian teaching or ideas in her heart, rather than as knowledge she could readily articulate, as well as for the limited time she claimed she had been attending church and what she claimed she liked about it. It was open to the Tribunal to find that the applicant could reasonably be expected to go beyond her limited responses when asked about her understanding of Christianity, her knowledge of the church, her knowledge of services and her evidence about her activities for the church.
This is not a case in which it can be said that the Tribunal imposed an arbitrary standard of knowledge of religion in the sense considered by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108. There was a basis in the applicant’s evidence for the Tribunal to conclude that there were certain matters that the applicant might reasonably be expected to know. The Tribunal found not that the applicant had particular deficiencies in her knowledge but rather that she had very limited knowledge overall in relation to Christian teaching or ideas. This is not a case in which the Tribunal’s approach to the applicant’s lack of knowledge of religion (or indeed to her credibility overall) is illogical or irrational in the sense considered in SZMDS and see SZMIA v Minister for Immigration and Citizenship (2010) 116 ALD 586; [2010] FCA 815. It was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it made on the material before it (see SZMDS at (648) and SZMIA).
Ground one in the application and the concerns raised by the applicant at the hearing do not establish jurisdictional error.
The second ground in the application is as follows:
I understand that the Tribunal may consider any information relevant to the review application but must regard any used information when making the decision – s.424(1). In paragraph 19 of the decision, the Tribunal did state that…“the Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources”. What exactly were the “other material” and a “range of sources”? Were they reliable? How relevant was this information to the review application? Unfortunately without any details about this information these questions cannot be answered. Therefore it’s not fair to make a decision based on this information.
The precise basis for this ground is not entirely clear. Insofar as it refers generally to s.424 of the Migration Act there is nothing in the material before the court to establish any failure by the Tribunal to comply with s.424 of the Act. The applicant appears to suggest that information was not put to her and that the Tribunal made its decision based on material which was not disclosed to her.
As to the first of those possibilities it has not been established that the Tribunal failed to comply with s.424A of the Act. It has not been established that there is any information that would at the relevant time have been the reason or part of the reason for affirming the delegate’s decision that was not put to the applicant pursuant to s.424AA of the Act (such as the oral evidence the applicant gave to the delegate). Insofar as this ground may be seen as taking issue with the possibility that the Tribunal relied on independent country information, such information is excluded from the s.424A obligation by virtue of s.424A(3) of the Act. In fact the Tribunal made its decision based not on independent country information, but rather on deficiencies in the applicant’s own evidence consisting of the limits of her knowledge of religion and inconsistencies, confusion and unconvincing aspects of her claims.
No jurisdictional error is established based on the Tribunal’s general statement that it had regard to material available to it from a range of sources. As mentioned in relation to ground one, this is not a case in which the Tribunal imposed an arbitrary standard of knowledge as the basis for making adverse findings about the applicant’s adherence to her religion and did not disclose the source of such a standard of knowledge. Rather, the Tribunal had regard to the very limited knowledge of the applicant about the religion she claimed to practice (in a number of respects).
The claim that the applicant makes is not such as to establish a jurisdictional error either in the manner considered in SZLSP or otherwise. It is notable that, as stated in that case, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. Indeed it is not prohibited from evaluating an applicant’s answers against probative material evincing doctrines of the religion in question (at [38]). In this case what the applicant showed was a lack of knowledge rather than a misunderstanding of doctrines. The Tribunal proceeded on that basis.
The complaints that the applicant makes in ground two are not indicative of jurisdictional error, either on the basis of any allegation that the Tribunal failed to put material to her or on any other basis.
Insofar as the applicant may be seen as asserting a failure to comply with s.430 of the Act, it is well-established that a mere failure to comply with s.430 does not of itself constitute jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 and SZMDS). The reasons of the Tribunal do not otherwise reveal jurisdictional error whether based on irrationality, illogicality or otherwise.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Barnes FM.
Date: 28 November 2011
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