SZQPS v Minister for Immigration - [2012] FMCA 108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQPS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 108

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – Tribunal accepting that the applicant is a refugee but finding that Australia owes no protection obligations to him as, at the time of the Tribunal’s decision, the applicant had a right to reside temporarily in South Korea – no jurisdictional error.

PRACTICE AND PROCEDURE – Observation of the practical risks of creating a class of refugees who are denied protection in Australia but who cannot go to a safe third country.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.36

SZMWQ v Minister for Immigration [2010] FCAFC 97
WAGH v Minister for Immigration (2003) 131 FCR 269

Applicant:

SZQPS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2008 of 2011

Judgment of:

Driver FM

Hearing date:

17 February 2012

Delivered at:

Sydney

Delivered on:

17 February 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr D Godwin

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2008 of 2011

SZQPS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 15 August 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is an ethnic Korean and national of China who claimed persecution in China because of his religion. The following statement of background facts is derived from the Minister’s outline of written submissions.
The applicant is a citizen of China. From 2002 he went back and forth between South Korea and China for work. On 25 April 2005 he married. The applicant’s wife was then a citizen of China. On 12 September 2006 the applicant’s child was born. In August 2007 the applicant’s wife and child were granted South Korean citizenship. In October 2007 the applicant was officially employed by a company based in South Korea and the applicant’s wife and child followed in December 2007. The applicant remained in South Korea until 29 August 2009 when he returned to China to visit his parents. He came back to Korea for two weeks in September 2009. On 7 October 2009 he returned to his parents in China. On 30 January 2010 he again returned to Korea. He travelled to Australia on 22 may 2010 on a student visa. At the time of departure he held a re-entry permit which permitted re-entry to Korea until 4 October 2011. He left Australia on 16 September 2010 returning on 23 September 2010. On 11 October 2010 he applied for a protection visa. The delegate refused his application on 20 December 2010 and he applied for review by the Tribunal.
The applicant’s wife was granted a student visa to Australia on 6 August 2009 and arrived on 26 September 2009. She left Australia on
30 December 2009 returning on 2 February 2010, leaving again on
16 January 2011. On 2 March 2011 the applicant’s wife returned to Australia with the applicant’s daughter on a visa valid to 2 June 2011.
The Minister’s delegate, in her decision made on 20 December 2010, rejected the applicant’s claims. In particular the delegate noted[1] at an interview that the applicant claimed that he was arrested by the authorities on 19 September 2010 during a raid on a Shanghai Wanbang Church service which was being held at a parishioner’s home that he was attending. The Shanghai Wanbang Missionary Church was officially banned by the Civil Administration Bureau in the People’s Republic of China on 10 November 2009. The applicant was detained for a period of 14 hours at the local police station. During this time, he claims to have been interrogated on three separate occasions about his church activities and asked to write a statement stating that he would no longer participate in illegal gatherings. The applicant claims that he was beaten during his interrogation in which he had his face slapped, he was hit on the head and was prodded with an electric rod. When asked if he was charged by the police, the applicant stated, no, that he was only asked to pay a fine and given a warning as it was his first offence.
[1] court book (“CB”) 69 and 70
Country information indicates that only pastors and organisers of the Shanghai Wanbang Missionary Church meetings had been detained by the authorities. The delegate referred to country information that one week after the banning of the church, the Shanghai police detained six pastors and organisers of the popular but unregistered Wanbang Church for several hours. There was apparently no independent evidence of anyone being physically harmed by the authorities or of any action being taken by the authorities against members of the church after that incident in 2009.
The delegate noted that the applicant was able to depart China legally and was not stopped at the airport. The delegate noted the applicant’s frequent travel between South Korea and China and concluded that the applicant was not of adverse interest to the Chinese authorities.
The Tribunal reached different conclusions to the delegate at [137]-[138][2]:
The Tribunal has found that the applicant’s religion is a significant part of his life and that if he returns to China he would continue to practice his religion. The Tribunal accepts the evidence of both the applicant and the independent information that although the Wanbang Church has been banned, services continue in an “underground/house” fashion, such activities are regarded as illegal and deeply troubling by the authorities, and that this has led to deacons, pastors and parishioners being detained and interrogated in 2009. The Tribunal did not locate any country evidence showing that the Wanbang church members have specifically been harassed, arrested or detained in 2010/2011. The Tribunal considers however that the general independent country evidence referring to the harassment, arrest, detention and mistreatment by the Chinese authorities of members of unregistered/unlawful churches is readily applicable to members of the banned Wangbang church whom the Tribunal accepts, based on the applicant’s evidence, continue to attend gatherings in private homes.
The Tribunal finds that there is a real chance that the applicant will be discovered by the authorities as an active, involved attendee of the banned Wangbang church house gatherings if he returns to China and that he will be arrested and detained by the authorities because of his religion in the reasonably foreseeable future. The Tribunal therefore finds that there is a real chance that the applicant will face serious harm capable of amounting to persecution in the reasonably foreseeable future if he returns to China; that the essential and significant reason for the persecution is the Convention reason of his religion; and that the persecution involves systematic and discriminatory conduct. The Tribunal finds that the applicant has an objective well-founded fear of persecution if he returns to China now or in the reasonably foreseeable future.
[2] CB 146
The Tribunal accepted that the applicant attended a Sunday service at an unregistered house church in China in September 2010 leading to his arrest, detention and mistreatment at the hands of the authorities[3]. The Tribunal accepted that the applicant was forced to sign a pledge not to practice his Christianity or attend illegal gatherings in the future. The Tribunal accepted that the applicant had been heavily involved in an unregistered church in China. The Tribunal also accepted that the applicant had genuinely been attending Christian churches in Australia and that he was ideologically opposed to attending any authorised church services in China and if he returned to China he would continue to attend services at the unregistered church[4]. The Tribunal accepted that there was a real chance that the authorities would discover his attendance at these services and that he would be arrested and detained[5]. Accordingly the Tribunal found the applicant’s fear of Convention persecution in China was well-founded[6].
[3] CB 145 [128]
[4] CB 146 [135]
[5] CB 146 [138]
[6] DB 146 [139]
The Tribunal then considered the operation of s.36(3) of the Migration Act 1958 (Cth) (“the Migration Act”). It found that the applicant had resided in Korea from October 2007 to August 2009. It found that he had a re-entry permit valid from 5 October 2009 to 4 October 2011. during the currency of that permit he had resided in Korea for approximately four months before travelling to Australia[7]. The Tribunal found that the applicant remained married to his wife and that he was able to request a renewal of his re entry permit on the basis of that marriage. The applicant’s wife would have to sponsor him and he would have to attend an interview[8]. The Tribunal found that the applicant had a current legally enforceable right to reside in South Korea until 4 October 2011[9]. The Tribunal further found, on the applicant’s own evidence and his location in Australia that the applicant had not taken all possible steps to avail himself of his current right[10]. The Tribunal found that s.36(3) of the Migration Act applied to the applicant[11].
[7] CB 148 [143(g)]
[8] CB 148 [143(j)]
[9] CB 148 [145]
[10] CB 149 [146]
[11] CB 149 [147]
The Tribunal then considered the operation of s.36(4) of the Migration Act. The Tribunal observed that the applicant had spent many years in Korea and he had not previously come to harm there, nor did he claim to fear persecution there. His only claimed fear was if a war broke out between North and South Korea. The Tribunal found that this fear was based on speculation and there was no evidence to support this fear of a war. It found that there was not a real chance that the applicant would experience harm amounting to persecution for a Convention reason in South Korea[12].
[12] CB 149 [150]
The Tribunal next considered s.36(5) of the Migration Act. It reasoned as follows[13]:
The Tribunal accepts that there is no guarantee that a further 2 year entry permit will be issued by the South Korean authorities. However, on the basis of the applicant’s ongoing marriage, the three pervious permits issued on the basis of that marriage, the country evidence suggesting that the South Korean authorities would issue a further 2 year entry permit to the applicant (allowing him to remain in South Korea after 4 October 2011) and noting there is no evidence to suggest that he will not receive a further permit from the South Korean Authorities, the Tribunal is not satisfied that there is a real chance that the applicant will be returned to China by South Korea in the reasonably foreseeable future.
[13] CB 150 [151]
These proceedings began with a show cause application filed on

7 September 2011. The sole ground of the application to the Court states:
The Tribunal member said: “The Tribunal has carefully considered all of my evidence and accepted my claims that occurred to me in China to my fear of persecution. “The war between North Korea & South Korea won’t be avoided. The member made jurisdictional error for requesting me to migrate to South Korea.
I have before me as evidence the court book filed on 19 October 2011.
In his oral submissions the applicant stressed that he finds the Tribunal’s reliance on s.36(3) of the Migration unacceptable.

In particular, he considers that it was unfair for the Tribunal to accept his claims of persecution but expect him to return to South Korea where he has no right of permanent residence.
I explained to the applicant that the Court’s jurisdiction is a limited one. His fear of war between North and South Korea was considered by the Tribunal and his reliance upon that fear in these proceedings simply goes to the merits of the Tribunal decision. His concern about the application of s.36(3) of the Migration Act requires a consideration of that provision. The provision states:
Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Regard must also be had to subsections (4) and (5) of s.36:
(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5) Also, if the non-citizen has a well-founded fear that:
(a) a country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first-mentioned country.
The effect of those provisions is that s.36(3) cannot be used to require an applicant to return to a country where he will face persecution or to a country where he is at risk of refoulement to a country where he faces persecution.
The operation of ss.36(3), (4) and (5) of the Migration Act were considered by the Tribunal at [141]-[151] of its reasons[14]. The Minister submits that the Tribunal’s consideration of the requirements of ss.36(3) to (5) of the Migration Act properly applied the legal requirements of those sections to the facts found by the Tribunal.

In particular, s.36(3) itself refers to temporary residence and there is no case law which mandates that temporary residence must be longer than a period of months.
[14] CB 147-149
The Minister’s submissions note that in WAGH v Minister for Immigration (2003) 131 FCR 269, Hill J at [65] referred to the dictionary definition of “reside” as:
to dwell permanently or for a considerable time; have one’s abode for a time.
The Minister submits that the applicant’s past lengthy period of residence in Korea supports the finding that he would be resuming residence if he returned there, even though his entitlement to remain was not for a lengthy period. The Tribunal recognised the potential difficulties in applying s.36(3) to a case of temporary residence at [144]-[145] of its reasons[15]:
In the most recent Full Federal Court case considering section 36(3), SZMWQ v MIAC [2010] FCAFC 97, Flick J’s majority judgment stated [paragraph 91]:
“It may presently be accepted that the correct construction of s36 is not without its difficulties. Despite the apparent simplicity of the statutory phrase in s36(3), namely the “right to enter and reside”, there is continuing uncertainty as to what either the words themselves mean or what the phrase as a whole means”.
The Tribunal has considered the relevant caselaw and the ordinary meaning of the words in s.36(3) as well as the findings referred to above. The Tribunal finds that the applicant has a current legally enforceable right to enter and reside in South Korea, albeit only until 4 October 2011. The Tribunal finds that the applicant’s right is a temporary, not permanent, right and that the right only exists for a period of less than 2 months. However, the wording of s.36(3) clearly states that a temporary right is sufficient to exclude Australia’s protection obligations towards an applicant.
[15] CB 148
The applicant told me today from the bar table that in fact he did not approach the Korean Consulate in Sydney about extending his visa until December last year. He has obtained information on what would be required to obtain a further Korean visa. He has not yet fulfilled those requirements or submitted a fresh visa application.
The present circumstances give rise to reasonable doubt about the applicant’s present entitlement to enter and reside in South Korea. That may or may not present a difficulty should the Australian government wish to compulsorily remove the applicant to South Korea. Given such potential difficulties, in my view, the Tribunal should be cautious in applying s.36(3) to instances of temporary residence which are not of long duration. It would be unfortunate if, through the application of s.36(3), a class of refugees was created, the members of which were not entitled to remain in Australia but had no continuing right of residence in another safe country.
In the present case, however, the Tribunal was entitled to conclude in the material before it that s.36(3) applied to the applicant who, although a Chinese national, is ethnically Korean and is married to a Korean national. At the time of the Tribunal’s decision, the applicant had a continuing right to enter and reside in South Korea and had done so previously for a number of years. In the present case, despite a concern about the potential overuse of s.36(3), I conclude that the Tribunal’s approach was free from jurisdictional error.
I conclude that the decision of the tribunal is a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister’s solicitor and own client costs and disbursements, including anticipated counsel’s fees well exceed $10,000. The Minister seeks an order for costs in accordance with the Court scale. The applicant submitted that costs should be reduced below scale but I see no reason to depart from the scale amount.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 21 February 2012