SZQSV v Minister for Immigration - [2012] FMCA 442

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQSV v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 442

MIGRATION – RRT decision – Chinese applicant fearing religious persecution – Tribunal accepted history and commitment to Christianity – acceptance of death of brother in police custody – finding of real chance of persecution in one location of China – no jurisdictional error affecting Tribunal’s assessment of risk elsewhere in China – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Applicant:

SZQSV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2304 of 2011

Judgment of:

Smith FM

Hearing date:

18 May 2012

Delivered at:

Sydney

Delivered on:

18 May 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Baggett

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2304 of 2011

SZQSV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is a somewhat exceptional case in the refugee matters which have reached me after a protection visa has been refused by the Refugee Review Tribunal. In most cases on review, Chinese refugee claimants have been disbelieved as to their fears of persecution for their religious commitment and activities. However, the present applicant was accepted as having presented himself honestly, and as having genuine Christian commitments and a recent background explaining a genuinely held fear of persecution in China. The Tribunal’s adverse decision turned only on an objective assessment of the future risks of persecution facing the applicant, about which minds may well differ. However, for the reasons which follow, I have not been able to characterise the Tribunal’s assessment of risk as being so unreasonable as in law to require the decision to be set aside.
The applicant arrived in Australia in December 2007 on a student guardian visa. His visa expired in December 2008, and the applicant remained with his student son in Australia. He sent his son back to China in early 2011, but his own fears arising from recent events kept him in Australia. On 27 January 2011, he applied for a protection visa assisted by a migration agent.
Unfortunately the agent did not present the applicant’s refugee case with as much detail and corroboration as would have been desirable. The visa application explained the applicant’s fear of return only with the statements:
I had suffered from the hard time in China because I was a member of underground Christian Church.
…
If I go back to China, I will encount the threaten by the local police and the local government, such as the local Communist Party service. I may be prosecuted or arrested if I have any resistance.
No details of his history nor corroboration of his fears was submitted to the Department of Immigration.
The applicant was interviewed by a Department officer on 9 March 2011, and an adverse decision was made on 10 March 2011. The delegate said that the applicant had some understanding of Christianity, but said that it was “rudimentary and superficial”. The delegate identified flaws in the applicant’s knowledge of the books of the Old Testament, and thought that the applicant was “unable to state what his own personal religious beliefs were”, and said that the applicant had made a mistake as to the date of the Resurrection.
The delegate also noted that the applicant said that he had attended a church operated by the Three‑Self Patriotic Movement, and thought that the applicant could practice Christianity in China without fear of persecution. The delegate disbelieved that the applicant had been attending Campsie Anglican Church in Australia, and thought that his failure to submit corroboration of this showed that he did not hold a subjective fear of return. The delegate also pointed to the delay in the applicant seeking Australia’s protection.
The applicant appears to have told the delegate something about an older brother being recently arrested and having died in custody, but the delegate was not satisfied that this was the result of persecution.
The applicant appealed to the Tribunal, and continued to be represented by his migration agent. They rebutted much of the delegate’s reasoning, by submitting a letter from the Reverend Tan at the Anglican Church at Campsie, which strongly supported the applicant’s claims. It confirmed that the applicant had been attending their Sunday church service regularly since early 2008. It noted the applicant’s rural background and lack of education, and said:
Mr. Ding is not an eloquent person, yet he is undoubtedly a very honest and truthful person. It is perhaps a result of having received very little education that Mr. Ding had never entertained the thought of seeking asylum or refuge after arriving in the country. Partly also because he did not know how and what he could do so as to convince the relevant authorities of his plight. He only sought to do so when he was confronted with the prospect of being sent home.
I would therefore sincerely explain on his behalf that he did not seek asylum when he arrived in Australia not because of a lack of genuine fear, but it is rather due to a lack of knowledge and the sophistication which educated people usually possess.
Pastorally speaking, with the time and contact that I have had with Mr. Ding, I would strongly consider this brother in Christ is a true and genuine Christian. I would like to boldly add that my confidence for stating so comes from having witnessed the many deeds and services that he did for the church community were all done without any ulterior motive or with hidden intention. They were selfless services and deeds done in Christian charitable spirit.
Therefore, in my view Mr. Ding being a simple and genuine Christian who comes from the rural part of China does not talk Christianity, but lives out Christianity. Furthermore, I must say, in the capacity of a Church Minister who has served in metropolitan Sydney for seven years now, it is very unusual.
The applicant also presented photographs showing him as a member of the congregation of that church, and as a participant in a group baptism in China in July 1999.
The applicant attended a hearing of the Tribunal with his agent on 22 June 2011. The hearing lasted some two and a half hours, and the Tribunal gives a full description in its statement of reasons. It is apparent that the applicant presented himself to the Tribunal as a patently honest witness, and exhibited the attributes identified by the Reverend Tan. The applicant explained his history, in which he came from a Christian family in a rural village at P. He had attended a house church at P until he married and moved his own family to an adjacent location at M in the same province. He there attended a church which was “within the Three Self Patriotic Church”. His elder brother continued to organise church gatherings in P, and the applicant attended these when he visited his own parents.
The applicant described events causing him to flee from his home province and his family in 2005, and to fear return to China in 2011. According to the Tribunal:
42.The Tribunal asked the applicant what happened to his brother in China. The applicant explained that his brother used to organise gatherings. Once, in 2005 police broke into one such gathering and said that the group were underground church members. He said at that time the police wanted to arrest them but they resisted. He said that he and his brother escaped. The following day his brother took him to Guangzhou City. The applicant said they stayed there and did not return to their hometown from that time in 2005. He went on to say that at the beginning of this year his father in P was very sick and his brother went home to visit him. Whilst his brother was in P he was spotted by the police and they came for him. The applicant said his brother arrived home and on the second day he was arrested by police.
43.The Tribunal asked the applicant what he knows of what happened to his brother. He said that the first event took place one night in 2005 when police came as he had said into their home and said this was a group of underground church members. Again he explained that they then relocated to Guangzhou City. He said that his brother had not returned home to P in the intervening period. He returned there in 2011 because their father was so sick. The applicant went on to say that on the same day that his brother was arrested he died. His death was as the result of injuries he sustained when he was bashed whilst he was detained. The Tribunal asked the applicant what the police told the family about this. He said there was no explanation given at all. He said in fact the police alleged that his brother killed himself using his own clothes to hang himself. The Tribunal asked the applicant how he learned about this event. The applicant said that his wife phoned him on the same day.
The applicant explained that after the 2005 incident, he and his brother had fears of persecution arising from that incident, and that he had only visited his own family at M occasionally at night between 2005 and 2007, and had never visited P to see his parents and other family there.
The Tribunal made its decision on 9 September 2011, and affirmed the delegate’s decision but for different reasons. In its statement of reasons, the Tribunal described the applicant’s claimed history and its questioning to assess his attachment to Christianity.
It noted the police interest in his brother after a church gathering was interrupted by police, who had alleged that the members present were “Shouters”. Country information indicates that this sect is the subject of particular persecution by Chinese authorities. The Tribunal accepted that the applicant and his brother, as well as other members of their family, were present at that religious gathering, and that the police had accused the participants of being part of an unregistered church. It accepted that the applicant and his brother had escaped, and sought refuge in Guangzhou. It said: “Nevertheless his family members still living in P still believe in Jesus Christ and have continued to practise their faith as Christians since that time and without further incident”.
The Tribunal accepted the claimed circumstances of the incident in 2005, and the death of the applicant’s brother at P in January 2011. It said:
91.The Tribunal finds that the applicant practised his religion as a Christian within the Three Self Patriotic Church in China; that is in M and in Guangzhou. It accepts that on one occasion in 2005 when he was in P, local police interrupted a gathering at which the applicant was present. It accepts that the police indicated that in their view the gathering was one of underground Christians. The Tribunal accepts that the applicant managed to escape. It accepts that he has not returned to P since that time and it accepts that he is genuinely fearful of doing so particularly in view of what happened to his brother who died in police custody in P in January 2011. The Tribunal accepts that there is a real chance that the applicant will face serious harm amounting to persecution if he returns to P, for the reason that he is imputed to be a member of an underground Christian church and on the basis of his relationship with his brother who was likewise considered to be a member of an underground Christian church.
The Tribunal also accepted that the applicant had practiced as a Christian in China, and had done so in Australia with the Chinese congregation of the Anglican Church at Campsie. It said that he did so “because he genuinely believes in Jesus Christ and his attendance is not conduct in which he has engaged for the purpose of strengthening his claim to be a refugee”. However, the Tribunal thought that he could practise his faith if he returned to live with his family in M “as he has done in the past”.
It then considered the applicant’s subjective fears of persecution, but found that he did not face a real chance of persecution if he returned to China. It explained this conclusion:
94.The applicant says that he [sic: believes that] the police from M, Guangzhou and P are all from the same authority and they will find him in China. There is no evidence that the police from P have sought to pursue or locate the applicant in M or in Guangzhou since the incident of 2005. Furthermore the applicant did not state that he has experienced any problem with the police in M or in Guangzhou since 2005. The Tribunal does not accept that he is or will be sought by police in M or in Guangzhou because he is believed to be a member of an unregistered church or because of an association with his late brother.
95.Later in the hearing the applicant sought to argue that when he returned to M from Guangzhou he did so late at night and in secret. The Tribunal does not accept that this is the case. In the application for the Protection visa he has given the address in M as his residential address in China. The Tribunal finds that the applicant’s household register is in M. He had lived there previously. His wife and family lives there and he owns his home there. The Tribunal finds that in M the applicant can practise his Christian religion as he wishes to do. There is not a real chance that in so doing he will come to the adverse attention of the PSB.
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 was affected by jurisdictional error. I do not have power myself to decide whether the applicant would face a real chance of persecution if he returned to China and avoided the location of P, nor whether he should be given permission to stay in Australia for any other reason.
Unfortunately, the applicant has not obtained any legal assistance in presenting his case to the Court, and the people who have helped him have been unable to formulate any ground of jurisdictional error with meaningful particulars. The grounds of his application are stated as follows:
1.The Second Respondent made legal errors in making of the decision.
2.The Second Respondent failed to consider the applicant had a well founded fear of persecution.
3.The Second Respondent failed to address the full content of the applicant’s claim for a protection visa.
However, these are not accompanied by any meaningful argument. Without particulars of these contentions, I have been unable for myself to identify any arguable legal or other jurisdictional error.
I consider it clear that the Tribunal did consider all the applicant’s evidence and claims to be a refugee and, as I have noticed, it has assessed the applicant and his evidence very favourably in relation to his credibility. Its decision turned upon its assessment of the future risks arising from the history which it accepted. There is no reason to conclude that it misunderstood the ‘real chance’ test which it was obliged to apply to that assessment. I consider that its assessment was open to it, notwithstanding that it differed from the applicant’s own assessment of his risk of persecution and his genuinely held fears of returning to China.
The applicant has also filed an affidavit, the body of which suggests that there is an inconsistency between the Tribunal’s finding of a real chance of persecution if the applicant returned to P and its conclusion that there was not a real chance that he would come to the adverse attention of the PSB if he lived at M. However, in logic, there is no inconsistency between these findings, and the Tribunal’s reasoning explaining why it decided that there was not a real chance of persecution occurring at M was based on evidence which allowed the finding and reasoning which is not illogical. I have, therefore, not been able to find that the tests of unreasonableness amounting to jurisdictional error are satisfied, and accept the contrary submission of the Minister’s representative which cited Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [78], [130], and [135].
The applicant’s affidavit contains a restatement of his refugee claims, and presents his current fears in terms that are far more eloquent than were ever presented to the Tribunal. It concludes with a criticism of the Tribunal’s assessment of his risk of persecution, with which many minds might find sympathy. As the applicant told me, M is in the same province and in relatively close proximity to P. It is not obvious to me how the Tribunal arrived at its confidence that the applicant could live safely in that location undisturbed by the PSB, taking into account the very recent events involving his older brother.
However, as I have explained to the applicant, I am unable to identify in his concerns a basis in law for setting aside the Tribunal’s decision and remitting the matter. I must therefore dismiss the application.
I have informed the applicant that he should take further advice on whether there are applications he can make to the Minister to obtain a further consideration of his refugee status or other decision to enable him to remain in Australia. It is in his interests for him to seek the best professional or other assistance to present such applications to the Minister without delay.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 1 June 2012