SZQOH v Minister for Immigration
[2012] FMCA 345
•30 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQOH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 345 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it reached incorrect conclusions, reached a decision without making further enquiries and applied an arbitrary test when deciding the applicant’s claim to be an observant Christian. |
| Migration Act 1958, ss.91R, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577 |
| Applicant: | SZQOH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1846 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 10 April 2012 |
| Date of Last Submission: | 10 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1846 of 2011
| SZQOH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a member of an underground Christian church. The applicant claims to fear persecution in China by reason of his religious beliefs.
After his arrival in Australia on 17 April 2010 on a subclass 976 electronic travel authority, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 22 March 2011. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-16 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in his protection visa application:
a)his whole family belonged to an underground church. To avoid trouble they had organised meetings in rotating shifts and changed meeting venues regularly;
b)in 2007 his daughter was born in contravention of the government’s birth control policy. He and his wife kept his wife’s pregnancy from the government otherwise she would have been forced to have an abortion;
c)in early 2009, church meetings were held in his home. In February 2009 someone reported his daughter’s birth to the local birth control office. Staff from the birth control office came to his house and demanded RMB22,000. As the applicant and his wife did not have that much money, the officials seized their electronic appliances and most of their furniture;
d)as a result of the incident with the birth control office, they changed their church’s meeting venue from his home to his business;
e)in October 2009 while they were holding a meeting, the police raided his shop. He was upstairs and when he heard the police he broke a window, jumped out of the building and escaped. His wife called him two hours later to tell him that the police were looking for him at their home so he switched off his mobile phone and hid in a relative’s house. His brother would bring him messages at midnight and told him that plain clothes police officers were patrolling his house and at times broke in, searching for him. Of the eighteen members of his church who were arrested, all had been released apart from two who had been organisers;
f)a month later he went to Fuzhou and hid there at various places for four months. He was introduced to a people smuggler by a friend and obtained a visa to travel to Malaysia. He paid money to pass through customs in China. From Malaysia he travelled to Thailand and then to Sydney;
g)he regularly attended church activities in Sydney; and
h)when he contacted his family they told him not to return because the police were still looking for him.
The applicant provided a letter dated 24 October 2010 from the Local Church in Sydney stating that he had attended meetings regularly since June 2010.
The applicant attended a hearing before the Tribunal on 23 June 2011 and made the following additional claims:
a)he completed primary school but only attended middle school for two years, repeating his first year of middle school;
b)he was exposed to Christianity from an early age because of his family. He grew up listening to stories from the Bible, sang hymns and helped to arrange chairs for gatherings. He started to serve in the church in his early twenties;
c)he and the two members of his church who were still under arrest had been organisers. He had organised ceremonies and called the other members of the church to pray. The sixteen members who were arrested but later released had not been in the church long enough to be organisers;
d)he was baptised in China when he was young but had no recollection of this. He was baptised for a second time in Australia in 2010 and after this re-birth he was able to serve better;
e)he went to the airport in China with a brother from his church who bribed a person in customs so he could pass through the channel for airline staff. Because he could not get an Australian electronic travel authority on a Chinese passport, with the help of church friends in Malaysia he obtained a fake Malaysian passport on which to travel to Australia. On board the plane to Thailand he swapped passports with someone else. The church arranged for his fake passport and he did not have to pay any money;
f)he had a passport because all members of his church had them for overseas training. He had previously had a passport but it had expired;
g)his daughter had still not received a household registration. His wife and children had to stay away from Fuqing because of government harassment but he was not sure where they were. They could not stay at their home because the government had sent undercover police to investigate it;
h)he had not applied for a protection visa for seven months after arriving in Australia because he had no money. He initially thought that the church in Australia would help him but it was facing difficulties. It had a huge financial burden as it was trying to buy property for church gatherings. He had not wanted to be an extra burden on the church in Australia;
i)he attended the Local Church in Australia every week at different venues but mainly in Auburn. He attended on Wednesday and Sunday and smaller gatherings on Thursday and Friday. He had been introduced to the Local Church in Auburn by someone he met on the train;
j)at the time of his departmental interview he had not known who the founder of the Local Church was but he subsequently did some research and knew that it was Witness Lee. He was very nervous at the departmental interview and the interpreter could not understand him well; and
k)the Chinese government advocated freedom of speech and religion but did the complete opposite.
The applicant produced to the Tribunal three photographs of himself and other people which he said had been taken on 30 December 2010 at a “National Blending Conference” in Sydney.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal found the applicant was able to understand the interpreter, the proceedings and the questions put to him and concluded that his responses were evasive or expansive and not to the point. The Tribunal found that the applicant repeated himself frequently, gave disjointed answers and avoided detail. The Tribunal was unable to accept much of the applicant’s evidence as reliable and noted that it appeared to be rehearsed. The Tribunal further noted that the applicant seemed to adjust his responses to its questioning and found that, overall, the applicant was not a credible witness.
The Tribunal found that the applicant was evasive about his education in China and gave inconsistent evidence about the level of education he had reached. The Tribunal did not accept it was plausible that the inconsistencies in his evidence about his education resulted from an inability to remember. The Tribunal formed the view that the applicant was not a reliable witness on the subject of his education.
The Tribunal found that the applicant was not a Christian as claimed. In this regard:
a)the Tribunal found that the applicant was unable to explain his beliefs in a convincing way, notwithstanding his claim to have been exposed to Christianity from an early age. Whilst acknowledging that the applicant had some knowledge of Christianity, the Tribunal found that this knowledge was limited and less than expected for a person who claimed to have been praying and reading the Bible from an early age. The Tribunal found the applicant’s evidence about his most important religious belief to be disjointed and vague. Whilst the Tribunal accepted that the applicant might have been nervous at his departmental interview, it did not accept that this was a sufficient explanation for his improved knowledge of Christianity at its hearing compared with that at his departmental interview. The Tribunal took into account the applicant’s evidence that he had researched the history of the Local Church between his departmental interview and Tribunal hearing and for that reason gave that evidence less weight; and
b)the Tribunal was not satisfied that the applicant had provided a credible account of his involvement with, and interest in, Christianity and the local underground church in China. After noting the applicant’s evidence that he had been attending church regularly in Australia, the Tribunal found that such knowledge as he had of Christianity and the Local Church was probably learned in Australia. The Tribunal was not satisfied that the applicant was involved with Christianity in China. It found that he was not a Christian as claimed and that his claims to be a Christian were contrived to enhance his application for refugee status.
Given its findings that the applicant was not a Christian or involved in the Local Church in China, the Tribunal was not satisfied that he had ever been a member of the Local Church, that he had been involved in any of the claimed religious activities or that the incident he claimed took place in October 2009 occurred. The Tribunal did not accept that he or any others with him had suffered any of the claimed harm, or that there was a real chance of any of the claimed harm occurring in the reasonably foreseeable future if he returned to China.
The Tribunal did not accept that the applicant’s false passport was organised for him and paid for by fellow members of his local church as he claimed. In this regard:
a)the Tribunal accepted that the applicant arrived in Australia on a false passport. It accepted that the applicant departed China on his own passport travelling to Malaysia to obtain an electronic visa for Australia and that he gave his photograph to an unnamed contact in Malaysia who helped him. The Tribunal accepted that the applicant boarded a plane for Thailand together with another person with whom he swapped passports and that he dishonestly entered Thailand on a false passport. However, the Tribunal did not accept that the Local Church in China paid a people smuggler and a bribe to get the applicant through customs or that it organised for a false passport to be made for the applicant. As the Tribunal found that the applicant was not a Christian or a member of the Local Church in China, it did not accept that he was escorted by a brother in the Local Church to the airport or that any brother in the Local Church paid a bribe to customs at Xiamen airport for the applicant to leave through any “staff channel”; and
b)the Tribunal accepted that the applicant had an earlier passport which expired but found his explanation that all Local Church members had passports to travel overseas for conferences and training to be implausible and contrary to country information. The Tribunal did not accept that the applicant was telling the truth about his reasons for obtaining a passport.
The Tribunal did not accept that the applicant managed to depart China safely using his own passport because he had bribed customs officials. In light of country information indicating that there was a sophisticated system for monitoring people departing China, with separate inspection barriers at airports designated for Chinese citizens, foreign travellers, diplomatic staff and airline personnel, the Tribunal did not accept that the applicant’s claimed escape was through a staff departure channel.
The Tribunal did not accept the applicant’s explanations for his delay in making a protection visa application. The Tribunal found that the applicant’s delay raised serious concerns about the immediacy, gravity and credibility of his claims to fear persecution in China immediately before his departure in April 2010. The Tribunal found that there was no plausible evidence to indicate any circumstances which would have prevented the applicant from seeking protection immediately or soon after his arrival in Australia if his claimed fears were genuine. The Tribunal found that the applicant’s delay indicated that at the time of his arrival and for a year after, he did not have a strong fear for his personal safety or future well-being in China.
The Tribunal found the applicant’s Local Church activities in Australia had been for the sole purpose of strengthening his claims for protection and, in accordance with s.91R(3) of the Act, disregarded them. In this regard:
a)the Tribunal accepted that the applicant attended church in Australia and was photographed with others from the Local Church. However, the Tribunal did not accept that his attendance at church was evidence of his genuine commitment to Christianity. Whilst accepting that the applicant attended the National Blending Conference and was photographed with others at it, the Tribunal did not accept that the applicant’s attendance was evidence of his genuine commitment to Christianity. This was because the Tribunal found that the applicant’s depth of understanding and knowledge of the conference was general and not of the detail expected of a person who claimed involvement in the Local Church over a lengthy period of time as the applicant did; and
b)the Tribunal found the applicant’s understanding of the purpose of baptism to be quite vague and lacking in the detail that one would expect from a Christian of long standing as the applicant claimed to be. The Tribunal found the applicant’s evidence that he was able to serve better after his second baptism to be unconvincing. It found that whilst the concept of rebirth is part of baptism the applicant was unable to expand on this in a way which demonstrated a true understanding of the meaning and purpose of baptism or why it was at all necessary to undergo baptism twice. The Tribunal was of the view that the applicant’s second baptism in Australia was undertaken for the sole purpose of enhancing his claims for a protection visa.
The Tribunal accepted that if the applicant had not registered the birth of his daughter someone may have reported the matter. The Tribunal noted country information indicating that some local governments enforced family planning laws more vigorously than others and accepted that the applicant may have had goods taken when payment of a fine was not made. However, the Tribunal noted that the family planning laws in China applied throughout China and it did not accept that they were discriminatory in their intent or application. It noted that while there were variations in the implementation of the law in different provinces, there was nothing to suggest that the law had a discriminatory impact on members of a group recognised by the Convention or that it was enforced in a discriminatory way. The Tribunal thus considered that the enforcement of the family planning laws did not bring the applicant within the definition of a refugee because what he feared was punishment for breaking a law of general application, not persecution directed at him for a Convention reason.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The evasive answer cause the application rejected.
2.The misunderstanding of my education level cause doubt by tribunal.
3.The gaining knowledge of history of local church after department interview cause the application rejected.
With his application the applicant filed an affidavit which attached a statement dated 15 August 2011, three letters from three different members of his church in Australia and a petition signed by ten people to the effect that the applicant’s religious beliefs were genuine.
At the hearing of this application the applicant also submitted that:
a)he told the Tribunal that if it had any further questions he would be happy to answer them but it did not contact him again before reaching its decision; and
b)he queried how the Tribunal could test a person’s commitment to Christianity by reference to a certain standard or level of knowledge.
The applicant made oral submissions in connection with these matters.
Consideration
Incorrect conclusions and findings
The matters which the applicant has raised in his application commencing these proceedings and in his affidavit in support seek only to dispute certain factual conclusions reached by the Tribunal and invite the Court to substitute its own conclusions on those matters for those of the Tribunal. The Court is not empowered to do that. The task of finding facts in matters such as this one is reposed in the Tribunal, the Court’s role being limited to ensuring that the Tribunal has applied the law properly in conducting its review and in reaching its decision. The applicant did not point to any legal error committed by the Tribunal in reaching the factual conclusions in question. In particular, it was not suggested that those findings were illogical, irrational or unreasonable in the sense discussed in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. Nor was any other legal error identified. Consequently the matters raised by the applicant in his application and affidavit do not disclose reviewable error on the Tribunal’s part.
Failure to enquire
The decision under review records the conclusion of the applicant’s Tribunal hearing in the following terms:
The Tribunal asked the applicant if there was anything further he wished to add. He said everything he said was true. He said that there may have been a few mistakes and if they were to forgive him. He said he would like his wife and children to come to Australia. He invited the Tribunal to attend a gathering and thanked God. He suggested that the Tribunal feel free to telephone him for anything further.
It should be noted that this passage does not suggest that the Tribunal had said to the applicant that it would not reach a decision without contacting him again and indeed the applicant made no submission to that effect.
The implication in the submission which the applicant did make was that the Tribunal should have kept asking him for more information until it was satisfied that the delegate’s decision should be varied or set aside. However, the Tribunal has no general obligation to make inquiries and the circumstances of this case do not suggest that the Tribunal erred by failing to make an obvious enquiry about a critical fact the existence of which was easily ascertained: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123.
Although before the Tribunal the applicant did not have an onus of proof of the sort borne by a litigant in court proceedings, he nevertheless did have a practical obligation to satisfy the Tribunal that he met the criteria for the grant of a protection visa. Consequently, he had to place before the Tribunal all the information he wished it to have when considering his review application. The consequence of this was that even though the applicant invited the Tribunal to contact him again, in this case it was under no obligation to do so and the fact that it did not does not indicate error on its part.
Standard for religious knowledge
The applicant did not expressly submit that the Tribunal tested his claim to be a Christian by applying an arbitrary standard of knowledge of Christianity and he did not point to anything which happened during the review which suggested such conduct. Nevertheless, he has sufficiently clearly raised an issue of that sort such that the Court should consider whether the Tribunal may have erred in the way it approached the applicant’s claim to be a Christian.
If the Tribunal tested the applicant’s claims of religious belief by reference to some arbitrary standard, as the applicant’s submission suggests may have happened, then it would have erred. The relevant principles were summarised by Jacobson J in Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577 where his Honour said:
There are four essential principles which are relevant to the disposition of the appeal. …
First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].
Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [38] (SZLSP).
Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].
Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority … is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment. (at 579-580 [6]-[10])
In this case the Tribunal concluded, by reference to the applicant’s answers to specific questions about his religious practices and knowledge, that his evidence displayed limited knowledge and was unconvincing, disjointed and vague. These conclusions were open to the Tribunal in the circumstances and not demonstrative of error. Further, the Tribunal concluded that although the applicant did have some knowledge of Christianity, it was more probable that had been learned in Australia than that it was the product of the applicant’s participation in Christian activity in China. Again, this was a conclusion open on the evidence.
The inadequacies in the applicant’s knowledge of matters relevant to his claimed belief, coupled with the fact that he had sought to address certain of those deficiencies between the time of his interview with the delegate and his hearing before the Tribunal, provided an adequate basis for the Tribunal to conclude that he was not the Christian he claimed to be. Although that conclusion might have been factually incorrect as the applicant has implied, it was not arrived at by a process of reasoning which was wrong in law.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 30 April 2012
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