SZQWV v Minister for Immigration
[2012] FMCA 347
•21 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 347 |
| 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 failed to consider the applicants’ evidence fairly, objectively and independently; failed to consider all relevant evidence; denied the applicants procedural fairness; reached incorrect conclusions and had not disproved the applicants’ allegations. |
| Migration Act 1958, ss.91R, 422B, 424A, 425, 474, 477 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | SZQWV |
| Second Applicant: | SZQZW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2720 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 March 2012 |
| Date of Last Submission: | 21 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2012 |
REPRESENTATION
| The Applicants appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2720 of 2011
| SZQWV |
First Applicant
| SZQZW |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are de facto partners, are citizens of China and claim to be Christians. They claim to fear that they will be persecuted on their return to China on the ground of their religion.
The first applicant arrived in Australia in June 2007 as the holder of a student visa. Her de facto partner, the second applicant, arrived in May 2008 also as the holder of a student visa. On 3 August 2011 the applicants applied for protection visas, the second applicant being included in the application as a member of the first applicant’s family unit. These applications were refused by a delegate of the first respondent (“Minister”) on 23 August 2011. The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal. On 28 November 2011 the first applicant applied to this Court for judicial review of the Tribunal’s decision. In an amended application filed on 23 December 2011 the second applicant was joined in the proceedings, although leave to make that addition was only granted at the hearing of this application. At the same time, the second applicant was granted an extension of time pursuant to s.477 of the Migration Act1958 (“Act”) within which to bring his part of these proceedings.
In these judicial review proceedings the Court cannot rehear the applicants’ applications for visas. 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 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The applicants’ student visas both expired on 15 March 2011. On 21 July 2011 the applicants were located by the department’s compliance officers and identified as unlawful non-citizens. They were detained and continue to be held in detention. The first applicant was interviewed on 21 July 2011. During that interview she said that she had debts in China because her family owed money and had been “arrested in a farm and lost money”. She said that she did not wish to return to China because she wished to make a “bit more money to help my parents”. She also said that she wished to stay in Australia for a longer period so that she could work, save money and send it back to her mother and hoped that her parents would come to Australia for a holiday.
Protection visa application
The first applicant made the following claims in her protection visa application:
a)her parents are “faithful Christians” and she had believed in Jesus and followed her parents before she entered primary school. In primary school she received no religious education and was taught “atheism”, which made her confused. She worshipped with her family in secret and feared being discovered by the government;
b)she returned to China in early 2009 and stayed for a month because her grandmother was unwell. She was unable to concentrate on her studies when she returned to Australia because she was worried about her grandmother. Her grandmother passed away in November 2009 but she did not return to China because her parents encouraged her to remain in Australia and concentrate on her studies;
c)she began working in a packing factory in 2009 where she met the second applicant and their relationship commenced in August 2009. In November 2010 she discovered she was pregnant but decided to have an abortion;
d)between July 2007 and June 2008 she went to the Wesley Mission in the city almost every Sunday and between June 2008 and July 2009 she went to the Anglican church in Lidcombe for Sunday services. Between August 2009 and November 2010 she and the second applicant sometimes went to the Baptist Church in Haymarket for Sunday services;
e)a priest and a number of brothers and sisters visited her in detention and she and the second applicant participated in church activities and prayed to God with them;
f)on 8 May 2011 she telephoned her mother who told her that on 1 May 2011 four policemen had raided their house where sixteen Christians were gathered. All the people present were taken to the police station and interviewed. He father was detained for fifteen days because he had organised the gathering; and
g)she would participate in underground activities if she returned to China and feared persecution by the government.
Department
The first applicant attended a departmental interview on 17 August 2011 and made the following claims:
a)she attended a registered church once or twice in China but stopped because “they cannot say whatever they want”;
b)the church did not teach about unmarried people living together because it was a personal decision. Also, from the church’s point of view, she had committed a crime by having a de facto relationship and an abortion;
c)when she returned to China in 2009 she attended church services on Saturday nights at her neighbour’s house and underneath her own house;
d)if she returned to China she would attend an underground church and her mother worried that she would be arrested and have a record which would not be beneficial to her future;
e)all the church services she attended in Australia were held between 10am and 2pm;
f)in 2010 her parents were questioned and warned but not detained. There may have been other incidents which her parents did not tell her about; and
g)her friend had referred her to solicitors to find out more information about seeking asylum but she was told she would need a certain amount of money. She had thought that she would visit a lawyer but had not had the time to do so.
Tribunal
The applicants attended a hearing before the Tribunal on 11 October 2011. The first applicant made the following additional claims:
a)she ceased studying in January 2010 because her grandmother was unwell and she could not concentrate on her studies. She did not return to China because her parents were strict and she wanted to stay in Australia and lead an independent life;
b)she had not mentioned her father’s arrest when she was detained because at the time of her interview she was nervous, she was thinking of going to a lawyer and the department did not ask her about her fears in China. She had not wished to raise personal matters with strangers and had not known how to defend herself;
c)she was not baptised because she was waiting for God to give her a sign. The first applicant then said that she had planned to be baptised in China in the style of her family gatherings;
d)she was educated to believe in science and although she went to family gatherings with her family it was not until later that she began to believe in the existence of God. It was only before she came to Australia that her cousin told her about God;
e)her parents would not let her return to China and told her that it was best she not return. She lodged an application because her parents told her she would be harmed if she returned to China;
f)she believed the authorities would monitor her family more closely in the future after her father’s arrest; and
g)the second applicant was also a Christian but she did not know if anything had happened to him or his family. It was not the sort of thing they discussed and she only thought about her own issues and did not ask him about his. She was not interested when his family telephoned him.
The second applicant also gave evidence at the Tribunal hearing, saying that he feared that he might be harmed. He said that when he was very young several police came and “created problems” but he had only a vague memory of this.
On 12 October 2011 the Tribunal wrote to the applicants pursuant to s.424A of the Act inviting them to comment on certain information. On 28 October 2011 the applicants responded to the Tribunal’s s.424A letter and gave the following information in relation to the first applicant:
a)she had not told the department at her compliance interview about her father’s arrest because there were other people around at the police station and she did not want to lose face. She was worried that if other people heard what she said it would be passed on. She also said that she wanted to make money for her mother but meant she wanted to make money so that she could be independent of her parents;
b)she did not know the name of the church in Lidcombe because she went with friends and never asked the name of the church. She had found out that it was called the Christian Assembly of Sydney and the service started at 10am. In relation to the Wesley Mission, she may have remembered the service times incorrectly or the duration of the service had changed since she had attended in 2007;
c)the country information which the Tribunal had did not reflect the real situation in China; and
d)she could not express herself very well.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that they were persons 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.
The Tribunal accepted that the first applicant had encountered difficulties since her arrival in Australia, that she may have been distressed about the termination of her pregnancy and her grandmother’s death and that this may have affected her studies. However, the Tribunal did not accept any of her other claims. It considered that the applicants had manufactured their claims to fear harm in China following their detention. It did not accept that the applicants genuinely feared harm in China or that they would face any harm upon their return to China.
The Tribunal considered that the circumstances surrounding the lodgment of the applicants’ protection visa applications raised serious doubts about the credibility of the first applicant’s claims. The Tribunal noted that at her compliance interview the first applicant did not claim to fear harm in China because of her religion or claim that her father had been arrested due to his involvement in religious activities in China. The Tribunal did not accept the first applicant’s explanation for her failure to raise her father’s claimed arrest. In the Tribunal’s view, the first applicant did not raise this claim at her compliance interview because it had not occurred and it considered that her failure to do so indicated that she had manufactured this claim subsequently for her protection visa application. The Tribunal had doubts that the first applicant had told the department’s compliance officers that she was a Christian and found that even if she had, it did not accept that this explained her failure to mention her father’s arrest or that it established that she was a Christian in China.
The Tribunal found that if the first applicant had intended to leave Australia after she ceased her studies, she would have done so rather than remaining in Australia working. The Tribunal did not accept that the first applicant had any intention of leaving Australia and found that her comments to the department at her interview after her detention were indicative of the fact that her intention was to remain in Australia to earn money. The Tribunal found that the applicant’s comments in relation to her making money so that she could be independent of her parents were nonsense and did not overcome its concerns in relation to this issue. The Tribunal also found that the first applicant’s comments were an attempt to overcome the evidence indicating that she had remained in Australia working following the cessation of her studies and that there was no evidence indicating that she had made any plans to leave Australia.
The Tribunal did not accept the first applicant’s explanation for the delay in the lodgment of her protection visa application. The Tribunal did not accept that the first applicant had not known that she could make an application for protection or that she was making plans to see lawyers and considering her options. The Tribunal did not accept that the first applicant was considering lodging an application on the basis of her father’s arrest and considered that if her father had been arrested in May 2011 she would have lodged an application at the earliest opportunity rather than waiting until she was detained as an unlawful non-citizen. The Tribunal also found the first applicant’s claim that her father was arrested some weeks before she was detained to be highly coincidental given her claim that her father had been a “faithful Christian” all her life. The Tribunal did not accept her explanation that there might have been other arrests that her parents had kept from her. It found that the timing of the claimed arrest, shortly before the first applicant’s detention, indicated that it was manufactured in an attempt to overcome concerns regarding the lengthy delay between her arrival and the lodgment of her protection visa application which only occurred after she was detained.
The Tribunal found the applicant’s claim that she had not been baptised despite belonging to a Christian family all her life and being in Australia for over four years to not be credible. The Tribunal also considered that the first applicant had attempted to alter her evidence during its hearing and that her claim that her cousin had told her about God prior to her departure from China was confused given she had given evidence elsewhere that she belonged to a religious family and had regularly attended underground Christian activities in China.
The Tribunal did not accept that the first applicant, who claimed that her father was arrested for his religious involvement and had made an application for protection, would not have had discussions with her de facto spouse as to whether his family had had any difficulties as a result of their own religious practices. The Tribunal considered that the first applicant’s evidence indicated strongly that she had not had any such discussions with the second applicant because her father had not been arrested and because neither her family nor the second applicant’s family had had any difficulties due to their involvement in Christian activities.
The Tribunal was not satisfied that the first applicant had attended any of the churches that she claimed or that there was evidence of any involvement in religious activities in Australia prior to her detention. In this regard, the Tribunal did not accept the first applicant’s explanation for her failure to recall the name of the church in Lidcombe, the name of the minister of that church and whether or not it was an Anglican church. The Tribunal considered it reasonable to expect that the first applicant would recall the name of the church in Lidcombe and the name of the minister given her claims that she had attended that church for a significant period. The Tribunal did not accept that she would not have asked her friends the name of the church and considered the claim that she did not know that it was not an Anglican church to be indicative of the fact that she had not at any time attended that church.
Whilst accepting that the applicants were involved in Christian groups whilst in detention, the Tribunal was not satisfied that this was due to any genuine interest in Christianity. The Tribunal accepted that the first applicant exhibited a good knowledge of Christian concepts when she was interviewed by the department but considered that she had learned some aspects of Christianity in an attempt to establish a basis for refugee status in Australia and solely to strengthen her claims for protection. The Tribunal concluded that even if the applicants had been engaged in some Christian activities in Australia, pursuant to s.91R(3) of the Act it disregarded that conduct.
The Tribunal noted that country information indicated that there was generally a relatively liberal attitude towards Christianity in Fujian. The Tribunal was not satisfied that any involvement by the applicants in religious activities while in detention would be known to the authorities in China or that, having regard to country information, it would result in a real chance that they would be harmed for that reason upon their return to China.
The Tribunal did not accept that the first applicant had any difficulties expressing herself and considered that the problematic nature of her evidence and claims was not due to any such difficulty but was due instead to the fact that her claims had been manufactured in an attempt to provide a basis for refugee status in Australia.
Having considered all the evidence, the Tribunal did not accept that the applicants were Christians in China, that they had become Christians subsequently or that they would seek to have any involvement in Christianity upon their return to China. The Tribunal did not accept that the applicants’ families were Christian or that they had had any difficulties in China for that reason. The Tribunal also did not accept that the first applicant’s father was arrested and detained in China. The Tribunal did not accept that the applicants genuinely feared harm in China and found that the entirety of their claims to fear harm in China were manufactured following their detection as unlawful non-citizens and their subsequent detention.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The Tribunal made a jurisdictional error by failing to fairly consider my evidence objectively and independently.
2.Failing to take into account every relevant facts of the manner.
3.Error of law in the decision itself and in the manner in which the Refugee Review Tribunal conducted the hearing and matter.
At the hearing of this application the applicants also referred to certain factual findings reached by the Tribunal and additionally submitted that the Tribunal had no evidence which contradicted their claims.
Ground 1
The adverb “fairly” in the first allegation of the amended application does not, in my view, add anything to what I appreciate to be the allegations made in this ground, that the Tribunal was not objective and failed to conduct an independent review.
Both those allegations can be dealt with at the same time and fairly shortly, in large part because the applicants have not indicated, by way of particulars or argument, in what way they say the Tribunal was not objective or independent. Considering the decision as a whole, I find it to be a thorough examination of the claims made by the applicants as well as a thoughtful analysis of those claims and the evidence which was before the Tribunal. The Tribunal’s description and analysis of the evidence represents a logical and rational approach to its statutory task. Further, it was a review apparently uninfluenced by the conclusions reached by the delegate and thus was the Tribunal’s own review.
Should “fairly” in fact add anything to this allegation and imply a lack of fairness, it amounts to an allegation that the Tribunal did not undertake a bona fide review. To my mind, there is nothing in the decision record which would support such a conclusion. That record indicates a thorough and conscientious approach to the Tribunal’s duties.
Ground 2
The allegation that the Tribunal failed to take all relevant facts into account is similarly limited by the absence of particulars or submissions which might flesh it out. While failure to consider material may amount to jurisdictional error if an applicant is thereby denied the possibility of a different outcome, there is no basis that I have been taken to, or can see, which would support a conclusion that any relevant facts were overlooked by the Tribunal on this occasion. Rather, the decision of the Tribunal was very thorough and detailed.
Ground 3
The third ground of the application appears to contain two elements. The first is that there was an error of law in the Tribunal’s decision. Subject to the allegation which will be considered at the end of these reasons, no error of that sort has been identified during the course of submissions at the hearing of this application. It was not suggested that the Tribunal applied the wrong test, took into account irrelevant considerations, failed to take into account relevant considerations or committed other errors of that sort. Nor is such a failure apparent from the Tribunal’s decision.
The second element of the third ground of the application appears to be an allegation that the applicants were denied procedural fairness. The Tribunal’s obligations to provide applicants procedural fairness are codified by s.422B of the Act in div.4 of pt.7 of the Act. The most important provisions of that division are ss.424A and 425. As noted earlier in these reasons, the Tribunal served a s.424A notice on the applicants and thereby discharged its obligations under that section. The applicants were invited to a hearing before the Tribunal, which they attended, and the Tribunal thereby discharged part of its obligations under s.425 of the Act. The Tribunal discharged the remaining elements of its s.425 obligations by making it clear throughout its hearing with the applicants that various matters were issues arising out of the decision under review. It squarely put to the applicants a number of matters which were ultimately determinative of its review.
The Court was not taken to any other provisions of div.4 of pt.7 of the Act as potentially having not been observed by the Tribunal and it is not apparent to me that the Tribunal did fail to observe any of those other provisions.
Tribunal’s factual findings
At the hearing of this application the first applicant submitted on behalf of both applicants that the Tribunal had reached conclusions which she could not understand and which impliedly were incorrect. These submissions were addressed to the merits of the applicants’ claims and to the factual findings which the Tribunal made as steps on the way to its ultimate conclusion that it was not satisfied that the applicants were persons who met the criteria for the grant of protection visas. As explained to the applicants at the hearing of this application, the role of the Court is to determine whether the Tribunal has properly applied the law in conducting its hearing and in reaching its decision. It does not have power, even if it had a different view of the facts to that of the Tribunal, to substitute its view for the Tribunal’s.
For these reasons, most of the matters which were raised in oral submissions at the hearing of this application disclosed no basis on which the Tribunal’s decision could be set aside.
No evidence to contradict
The other submission made by the applicants at the hearing of this application was that the Tribunal had not identified a negative case or had not been able to contradict the evidence which had been placed before it, presumably particularly in relation to the first applicant’s alleged adherence to Christianity and the alleged persecution of her father. However, the Tribunal is not required to make out a negative case or to demonstrate that an applicant’s allegations are untrue or unreliable before it can affirm a delegate’s decision. Its task under the Act is to determine whether it is satisfied that an applicant has met the criteria for the grant of a protection visa. Consequently, although in Tribunal reviews applicants do not bear a formal onus of proof of the sort applicable to a court proceeding, nevertheless it is their practical obligation to convince the Tribunal that they meet the criteria for the grant of the visa they seek. If their case before the Tribunal is insufficiently persuasive then they will fail to satisfy the Tribunal and thus will be unsuccessful. For this reason, the fact that the Tribunal did not identify a case disproving the applicants’ case is not indicative of error. The Tribunal was not satisfied that the applicants had made out their case and that conclusion reflected the test which it had to apply.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 30 April 2012
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