SZQRT v Minister for Immigration - [2012] FMCA 294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRT v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 294

MIGRATION – Review of decision of Refugee Review Tribunal – persecution – grounds of religion – whether Tribunal made finding without evidentiary basis – whether Tribunal prevented applicant from presenting evidence – whether vigorous questioning demonstrates bias – whether Tribunal biased.

NAJO v The Minister [2004] FCA 356
Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 74 ALJR 405

Applicant:

SZQRT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2195 of 2011

Judgment of:

Raphael FM

Hearing date:

2 April 2012

Date of Last Submission:

2 April 2012

Delivered at:

Sydney

Delivered on:

2 April 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2195 of 2011

SZQRT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 24 November 2010. She applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 24 November 2011. On 14 April 2011 the delegate of the Minister refused to grant her a protection visa and on 10 May 2011 she applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal together with her migration agent. On 31 August 2011 the Tribunal determined to affirm the decision of the delegate and published its decision on 1 September 2011.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of religion. The applicant claimed that she was a Christian and that she had played a leading role in establishing and developing secret meeting groups of an underground Christian church in Tianjin, where she lived. She told that she had come to her religious persuasion through meeting Ms Z, who used to work with her before they were both made redundant. Through the assistance of Ms Z, the applicant obtained a position working in a newsstand owned by another man. Ms Z introduced her to Christianity and in about May 2007 she attended her first meeting of an underground church.
She was baptised on 26 June 2007 and she claimed that she became a major activist in her church by which she meant that when the numbers of people for meetings became too large it was decided to split the membership into three and she had responsibility for one third of the membership, which was approximately seven persons, who held meetings at her house. She claimed that through her activities she managed to increase the number of persons attending in her house to approximately 20.
The applicant claimed that on 9 March 2010 there was a meeting at her home with about 16 to 17 participants and during the course of the meeting it was interrupted by officials from the Religious Administration Affairs Bureau. These officials asked her what was going on. She told them that it was a private party. The officials asked for persons’ IDs and they were given. The officials then left. The applicant then managed to secure the escape of the priest and a few other persons, but shortly afterwards the police arrived and she and a number of other people were arrested and taken to a detention centre. She claimed that during this time she was physically tortured by the police and forced to work at a farm. She remained in detention for approximately two months before she was released as a result of the payment of what she described as a bribe and a fine.
The applicant claimed that at no time did she admit to being an organiser of the underground church and so she was concerned that if she continued with her activities this might be discovered. She managed to obtain a passport and, with the assistance of a friend, a visa to visit Australia where her daughter and son-in-law were resident. She then left the country through the Beijing Airport saying that she had no difficulty in doing this because she was guided through the airport by a friend.
The Tribunal questioned the applicant upon her story and came to the conclusion that whilst it could accept that the applicant was a Christian and was baptised it had serious credibility concerns about her claims that she became a major activist in the underground church or played a leading role in the establishment and development of secret meeting groups. The Tribunal doubted that the applicant was arrested or spent two months in a labour camp. The Tribunal did not accept that she had the contact with the authorities on account of her religious beliefs that she claimed and concluded that she was not a truthful, reliable or credible witness in relation to those claims.
The Tribunal did not come to these conclusions on the basis of inconsistent evidence or because of the implausibility of the claimed matters occurring. It found the applicant’s history of the events and sequence unconvincing. It found that her responses to questions were deliberately evasive and vague.
Having found that the applicant was not a leader of the group and did not experience the arrest and detention she claimed the Tribunal did not believe that she had a well-founded fear of persecution should she return to China now or in the reasonably foreseeable future. The Tribunal also noted that the applicant had left China on her own passport. It discussed with the applicant the independent country information concerning the procedures at Chinese airports. It concluded that she was unlikely to have been able to leave the country if she was a person of interest to the authorities and did not accept her story about being guided through the customs and immigration control by a friend.
On 29 September 2011 the applicant lodged an application for review of the Tribunal’s decision with this Court. The first ground of application was:
“The Tribunal made findings of fact, critical to its conclusion, in the absence of evidence or contrary to the evidence before it such as to constitute jurisdictional error.”
This claim is not really particularised. The important conclusion that the Tribunal came to, namely that it could not accept the applicant’s story about her being a leader of the underground community, was reached on the basis of the Tribunal’s consideration of the manner in which she gave her evidence and the evidence itself. It was a negative conclusion. A decision by a Tribunal as to whether evidence is vague or unconvincing has to be one for the Tribunal itself. Certainly, this court is unable on a judicial review application to rehear the evidence so as to come to some different conclusion than that arrived at by the Tribunal. The decision made by the Tribunal as to the applicant’s ability to leave China was based upon available independent country information and so there was sufficient evidence.
The second ground of application was:
“The conduct of the proceedings demonstrated that the Member failed to conduct a real review of the appellant’s case or afford the appellant natural justice. the Tribunal’s failings included:
· Cutting off the applicant’s evidence when the applicant did not finish her response to the Tribunal’s questions. This gave the applicant an impression that the Tribunal did not want her answers to be too long and in the following questions, she tried not to elaborate too much detail. However, in the Tribunal’s decision, the Tribunal rejected her claims on the basis that her evidence was” vague and lacked detail”.
· The Tribunal Member questioned whether the applicant was reading a rehearsed answer when the applicant was answering the Member’s question.”
The applicant has helpfully produced a transcript of the hearing. I am afraid to say that my reading of it does not bear out the complaints that have been made. Certainly the Tribunal was anxious to ensure that the answers were short enough so that the interpreter could interpret them properly. For example, at [T12] there is a response to a question about the applicant’s role in establishing groups of the underground church. The applicant responds for five lines. The member asks her to continue. She continues to speak in Chinese and then the member says, “Please pause.” This allows the interpreter to interpret what she has said. After that interpretation the member says, “Continue. Please continue.” And the applicant does continue with a much shorter statement. This happens again at [T15] and [T16], but at [T16] there are two very lengthy answers given between which the member says, “Ask her to pause.” I do not believe that there is sufficient evidence that the Tribunal has effectively prevented the applicant from giving evidence and presenting arguments, which is the criteria that one has to look at in order to find a failure to comply with s.425 of the Act.
I have not found anywhere in the transcript where the Tribunal asked the applicant if she was giving a rehearsed answer. At [T7] the Tribunal member says: “Excuse me, are you reading something?” The applicant replies, “No,” and the Tribunal says: “No, okay, please continue.” In any event, the Federal Court has held in cases such as NAJO v The Minister [2004] FCA 356 at [24] that a vigorous approach to testing an appellant’s claims is permissible and has to be judged upon a criteria of whether or not it established that the Tribunal approached its consideration with a closed mind.
Before me today the applicant spoke at some length. She said she did not understand why the Tribunal thought her explanations were too general because she provided dates, times and what happened in respect of each event. She gave the names of the people involved and wondered what more details she could have given. She said that she tried to repeat what had happened but the Tribunal said that she was repeating the information she had already put in writing and it did not let her elaborate. I do not think that the transcript bears that out. The applicant complained that after she had broken down into tears at [T21] the Tribunal resumed but only continued the hearing for a few minutes.
That latter statement is correct, but reading [T22] and [T23] one can see how the Tribunal is bringing the matter to a conclusion and how the Tribunal is making sure that there are no further matters that either the applicant or her migration agent wish to draw to the Tribunal’s attention. For example, the member asked the agent whether there was anything in particular that he wanted to draw to her attention, and the applicant responded, “No.” The Tribunal again asked the agent and the applicant again responds. The member then said:
“Member: I’ve asked that question twice to the representative, but I think both times the applicant has answered. Is …
Representative: Yeah, no, no, no entry.
Member: I’m just double-checking that there was nothing further you wanted to add.
Agent: No, no.”
The applicant said to me that the Tribunal did not believe her and she did not understand what the basis of that was. It was pointed out to her by Mr Baird that she was believed as to her religious persuasion, but she was not believed as to her being a person of interest to the authorities. That is explained by the Tribunal in its findings and reasons.
It may well be that another Tribunal would take a different view as to the vagueness and inaccuracy of the applicant’s story. It may be that another Tribunal might have thought that the consistency between what the applicant said in her PVA and what she said before the Tribunal was evidence of quite the opposite as to vagueness or inaccuracy, but a decision as to these matters is that for the Tribunal alone: Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 74 ALJR 405 per McHugh J.
The applicant claimed before the court that the Tribunal was biased. She quoted the Tribunal’s questioning of her about reading from her document. The relevant passage is found at [T7]. The applicant is explaining what being a Christian is all about and the Tribunal says:
“Continue. Excuse me, are you reading something?
Applicant: No.
Tribunal: No. Okay, please continue.”
That seems to me hardly able to justify a finding of bias on the part of the Tribunal.
The applicant also complained about the Tribunal’s voice and body language. Clearly, as there is no video recording of the Tribunal hearing, it is impossible for this Court to make any commentary upon the Tribunal’s body language. However, there is a tape which the applicant produced. The court listened to extracts from the tape, including extracts of particular parts of the tape about which the applicant had complained. In my opinion the Tribunal is doing no more in those extracts than ensuring that her voice is clearly understood by the interpreter. It may have appeared to a non-English speaker that the Tribunal’s voice was raised, or was otherwise unsympathetic, but the tape recording itself does not bear this out.
The applicant told me that she was a Christian and that the events which she described had occurred. As I make clear in these reasons the Tribunal did not disagree with the applicant’s claim to have been a Christian. It disagreed with the claim she made that she was in danger of persecution should she return to China because of her leadership role in the underground church. In those circumstances I am unable to conclude that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions, and I must dismiss this application. The applicant must pay the respondent’s costs which I assess in the sum of $4000.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Rapheal FM

Date: 11 April 2012