SZQTI v Minister for Immigration

[2012] FMCA 750

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQTI v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 750

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.91R

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6

Applicant: SZQTI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2361 of 2011

Judgment of: Barnes FM

Hearing date: 8 August 2012

Delivered at: Sydney

Delivered on: 8 August 2012

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2361 of 2011

SZQTI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 16 September 2011, affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant is a citizen of the People’s Republic of China.  He arrived in Australia in July 2004 and applied for a protection visa on 28 July 2004.  On 30 July 2004 his application was refused by a delegate of the first respondent.

2. As appears from the material in the court book and as explained by the solicitor for the first respondent, a letter enclosing the delegate’s decision was sent to the applicant by registered post on 30 July 2004.  That letter was returned to the Department unclaimed.  Nonetheless, the applicant made an application to the Tribunal for review on 14 October 2004.  On 7 February 2005 the Tribunal (referred to in the first respondent’s submissions as T1) found that the application for review was made out of time and that it did not have jurisdiction. 

3. Some considerable time later, on 4 July 2011, the Department sent a second letter to the applicant enclosing the delegate’s decision of 30 July 2004.  The applicant sought review on 27 July 2011.  It is that review (referred to in the first respondent’s submissions as T2) that is the subject of these proceedings.  The applicant attended a Tribunal hearing on 14 September 2011.  The Tribunal affirmed the delegate’s decision.  Future references to the Tribunal decision are to that Tribunal decision.

4. The applicant claimed to fear harm in China as a Christian.  Initially he also claimed to fear harm in China for having participated in what he described in his protection visa application as “activities to strive for freedom and democracy, to memorise the ‘89 Democratic movement’”. 

5. The Tribunal recorded that in connection with his review application the applicant claimed that the Chinese authorities accepted Christianity in public but targeted Christians privately.  It set out the applicant’s claims to have participated in activities to commemorate the 1989 Democratic movement and his claim that he was a pious Christian who feared he would be persecuted by the Chinese authorities for his religion and political opinion. 

6. The Tribunal summarised what occurred at the Tribunal hearing.  This is the only evidence before the court of the hearing.  Relevantly, the applicant claimed that he became a Christian in China in 2000 and attended a “house church”.  He claimed that in 2001 he was arrested and detained for 15 days because he did so.  He anticipated that he would be arrested again.  He claimed that before he left China the authorities were looking for him, so he went into hiding and lived in various places from 2001 until 2004.  He had not maintained contact with any of the persons involved in the house church and did not know if his wife was still a Christian.

7. The applicant submitted a letter from a Minister in Australia dated 11 September 2011 stating that the applicant had been attending a particular named church since 2011 and also a photograph of the Minister. 

8. At the hearing the Tribunal asked the applicant about various issues including his claims about past events in China and his religious activities after his arrival in Australia from July 2004 until July 2011.  While he stated he went to “many churches” in the various cities in Australia in which he had lived, the Tribunal described his evidence as “vague”.  It found that he appeared not to remember details and was unable to recall the names of the churches, the clergy, the location of the churches or any other significant details.

9. When asked why he found it necessary to go to many churches, the applicant claimed that having been detained in China, he had moved to avoid detection.  The Tribunal commented that it would have been apparent to him, after living in Australia for a while, that he could safely attend a church here without any interest from the police and he stated that he did not know that. 

10. The Tribunal raised with the applicant the fact that he had not mentioned at the hearing his written claims in relation to political opinion.  The applicant advised that he did not wish to pursue those claims as he did not now think he would be harmed by the Chinese authorities for that reason.  He told the Tribunal that he had not participated in any activities of a political nature in Australia and was not at risk of harm in China for political reasons. 

11. The Tribunal discussed with the applicant his religious beliefs and activities and recorded his responses when asked questions about his knowledge of the Bible and Christianity.  The Tribunal put to the applicant that for a person claiming to have an interest in Christianity and over 10 years of reading the Bible he appeared to have limited knowledge about the religion and the Bible and that it had doubts about whether he was providing a truthful account of his circumstances.

12. In its findings and reasons the Tribunal summarised the applicant’s claims that he was a Christian and a person with political views against the Chinese government.  It recorded that he claimed that he was arrested in 2001 and mistreated over a 15 day period because he attended a house church and subsequently went into hiding and that he anticipated that he would be detained as a known Christian and person involved in the underground church movement and a person who had views against the government and had expressed those views.

13. The Tribunal was not satisfied that the applicant had provided a credible account of his circumstances.  It formed the view that the claims he presented had been “contrived” to enhance his protection visa application.  In relation to the applicant’s claims about religion the Tribunal found, after considering his evidence at the hearing about his religious beliefs and activities and knowledge of the Bible, that he was not a Christian.  It was not satisfied that he had a “genuine interest” in religion.  The Tribunal had regard to the fact that at the hearing the applicant had been unable to demonstrate sound knowledge regarding his religion and had found it difficult to describe his beliefs.  It considered his claim that he had suffered difficulties with the authorities in China relating to his religion and that this influenced the way he practiced it in Australia, but was of the view that if the applicant had a real interest in religion and had participated in religious activities since 2000, he would have had more detail and information to provide regarding his religion and beliefs.

14. The Tribunal saw it as significant that although the applicant claimed that he had been in Australia since 2004, there was no “compelling evidence” that he had attended any religious activities in Australia before 2011.  The Tribunal was of the view that the applicant had limited information to provide about his religion because he was not and never had been “a committed or active Christian”.  It was not satisfied that he had a “genuine interest” in religion and concluded that his claims had been “fabricated to enhance his application”.

15. The Tribunal did not accept as credible the applicant’s claim that he would be involved in religious activities in the reasonably foreseeable future that would attract the adverse interest of the Chinese authorities or that there was a real chance that he would face persecution in China by the authorities for reasons of religion. 

16. The Tribunal disregarded the applicant’s involvement in religious activities in Sydney since July 2011 under s.91R(3) of the Migration Act 1958 (Cth).

17. The Tribunal considered the applicant’s claim that he was detained in China in 2001 and mistreated by the authorities because of involvement with an underground church, but because of its credibility findings.  It did not accept as credible this associated claim.  It found that these claims were fabricated to enhance the application. 

18. The Tribunal accepted the applicant’s evidence at the hearing insofar as it found that his political opinion would not place him at risk of harm by the authorities in China in the reasonably foreseeable future.

19. Hence, the Tribunal was not satisfied there was a real chance the applicant would be subjected to persecution in China for reasons of religion, political opinion or any other Convention reason. 

20. The applicant sought review by application filed in this Court on 18 October 2011.  There is one ground in the application.  It is as follows:

    I participated in activities relating to the 1989 “Democratic Movement” in China and I was arrested in 2011 (sic) and mistreated by the authorities over a fifteen day period because I was caught attending a house church in China.  I have been a pious Christian in China.  And I have joined the activities of my Church in Australia.  The Tribunal member thought that my claims are only for the purpose of enhancing my protection visa application.  The Tribunal member’s decision isn’t fair and made jurisdictional error.

21. Insofar as this ground seeks merits review, merits review is not available in this court.  It appears that the applicant wishes to revive a claim to fear harm for reasons of political opinion.  However the evidence before the court is that that claim was expressly abandoned by the applicant at the Tribunal hearing.  The applicant’s present attempts to raise such a claim again do not establish jurisdictional error on the part of the Tribunal, which considered that claim but accepted the applicant’s disavowal of any fear of harm on that basis. 

22. It is well-established that the court cannot review the merits of the Tribunal’s decision.  Insofar as the applicant takes issue with the Tribunal’s factual findings, both in this ground and in oral submissions today merits review is not available in this court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272; [1996] HCA 6). The Tribunal’s credibility findings were open to it for the reasons which it gave on the material before it. This is not a case in which it has been established that the Tribunal made its decision on a basis that demonstrated that it inappropriately set itself up as an arbiter of religious knowledge, let alone that its approach revealed jurisdictional error. There were a number of reasons for the Tribunal’s credibility findings which were open to it for the reasons which it gave, having regard to the evidence of the applicant at the Tribunal hearing.

23. Insofar as the applicant contends that the Tribunal’s decision was not fair, no lack of procedural fairness whether by way of failure to comply with the Tribunal’s obligations under the Migration Act or otherwise is apparent on the material before the court.

24. Insofar as this very generally expressed and unparticularised ground might be seen as raising a contention of actual or apprehended bias, there is nothing in the material before the court to establish such a claim.  As no jurisdictional error has been established the application must be dismissed.

    RECORDED  :  NOT TRANSCRIBED

25. The unsuccessful applicant should meet the costs of the first respondent.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  27 August 2012