SZQYB v Minister for Immigration - [2012] FMCA 647

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQYB v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 647

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – Tribunal accepted that the applicant attended church in Australia and did not disregard that conduct – whether the Tribunal overlooked a sur place claim in relation to that conduct considered.

Migration Act 1958 (Cth), s.91R

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088
Htunv Minister for Immigration (2001) 194 ALR 244
NABE v Minister for Immigration (No.2) (2004) 144 FCR 1
SZOYH v Minister for Immigration [2012] FCA 713

Applicant:

SZQYB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2828 of 2011

Judgment of:

Driver FM

Hearing date:

27 July 2012

Delivered at:

Sydney

Delivered on:

10 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin, pro bono publico

Counsel for the Respondents:

Mr H P T Bevan

Solicitors for the Respondents:

DLA Piper

ORDERS

The second further amended application filed on 27 July 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2828 of 2011

SZQYB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal decision was made on 15 November 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China (Liaoning province) and had made claims of religious and particular social group persecution. The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of China, arrived in Australia on 24 October 2010. On 15 November 2010 he lodged an application for a protection (Class XA) visa with the Minister’s Department. On 22 March 2011 a delegate of the Minister refused to grant a protection visa and on 18 April 2011 the applicant applied for review of that decision.

Claims

The applicant claimed to have been a Christian in China since 2004. He claimed that he set up a house church and that this was labelled by the government as “the Shouters” and “evil cult”.[1] He claimed that he was detained and tortured in 2007 and again in 2009 because of these activities.
[1] Court Book (CB) 34
After arriving in Australia he attended the Local Church in Sydney at Telopea.[2]
[2] CB 50

Delegate’s consideration

The delegate referred to country information which stated in part that[3]:
The central government banned certain religious and spiritual groups. Some individuals belonging to or supporting banned groups have been imprisoned. The criminal law defines banned groups as “evil cults”....
The government also considered several Protestant Christian groups to be “evil cults,” including the “Shouters,” Eastern Lightning, the Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades of Servants (or San Ban Pu Ren), Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love and the South China Church…
[3] CB 98-99
It is also clear from the delegate’s decision that “Shouters” is a term used in relation to members of the Local Church.[4]
[4] CB 106
The delegate found that the applicant was not a member of the Local Church/Shouters. The delegate did not make any finding as to whether the applicant was a Christian although he said that he accepted that he might be.[5]
[5] CB 103

Decision of the Tribunal

The Tribunal made adverse credit findings based upon various perceived inconsistencies in the applicant’s account. The Tribunal catechised the applicant and claimed that his Christian knowledge and beliefs were unconvincing.[6]
[6] CB 360 [231]
The Tribunal found that the applicant was not a reliable witness in terms of his claims to Christian faith and rejected his history of religious activities in China.[7] It found that he was not a Christian in China.[8] The Tribunal did, however, accept that the applicant attended Church in Australia since December 2010. It then reasoned that:^[9]
However, on the evidence before it the Tribunal does not accept the applicant’s attendance at church in Australia as evidence that he is a committed Christian and finds the chances that the applicant would be persecuted on the basis of his being a Christian should he return to the PRC in the reasonably foreseeable future to be remote and his fear of this happening not well-founded.
[7] CB 360
[8] CB 362 [244]
[9] CB 361 [242]

The judicial review application

These proceedings began with a show cause application filed on 12 December 2011. The application has passed through several iterations since then, following the applicant’s receipt of legal advice and pro bono representation. The Court is grateful for the willingness of counsel to represent the applicant on a pro bono basis.
The applicant ultimately relied upon a second further amended application filed in court by leave on 27 July 2012. There are two particularised grounds in that application:
1. The RRT failed to complete the exercise of its jurisdiction
Particulars
The Tribunal accepted that the applicant had attended Church in Australia since December 2010. Although not accepting this attendance as evidence that the applicant was a committed Christian, the Tribunal did not disregard the evidence, so it must have accepted that the applicant’s church attendance was for a purpose otherwise than for strengthening his refugee claims (s.91R(3) of the Act). The Tribunal should have made findings as to whether a sur place claim arose from his church attendance in Australia. Further, the acceptance of the applicant’s attendance at the Local Church in Sydney meant that the RRT was obliged to make findings about whether the applicant was a member of the social group of attendees of the Local Church, but it failed to do so.
2. The RRT failed to comply with s.425 of the Act
Particulars
If the Tribunal disregarded the applicant’s conduct in Australia pursuant to s.91R(3) of the Act then it failed to provide him with the opportunity to present evidence and arguments on that issue.
Ground 2 was not pressed on the basis that the Minister conceded that the Tribunal did not disregard the applicant’s conduct in Australia pursuant to s.91R(3) of the Migration Act 1958 (Cth).
I received as evidence the court book filed on 24 January 2012.
The applicant contends that the Tribunal, having found that the applicant had attended church in Australia, should either have disregarded that conduct pursuant to s.91R(3) or should have considered the risk posed by the applicant’s church attendance in Australia should that become known to the Chinese authorities. In particular, whether or not the applicant was accepted by the Tribunal as a committed Christian and house church member, the applicant contends that the Tribunal needed to consider his membership of the particular social group of Local Church attendees.
The Minister submits, primarily, that no sur place claim arose on the material before the Tribunal.[10] It is trite law that it is for an applicant to advance claims and evidence in support of their application for a protection visa. The applicant provided no evidence to the Tribunal that his attendance at the Local Church in Australia had come (or would come) to the attention of the Chinese authorities. In these circumstances, the Minister submits that it cannot be said that a sur place claim arose.
[10] NABE v Minister for Immigration (No 2) (2005) 144 FCR 1 at [61]-[62]

Consideration

I accept from the material in the court book that the applicant had provided to the Tribunal evidence of his membership of house churches, or Local Churches, both in China and in Australia in support of his claims of religious persecution, or alternatively, persecution as a member of the particular social group of house church or Local Church members or attendees.
The Tribunal rejected comprehensively the applicant’s claims in relation to China. It remained necessary for the Tribunal to consider the applicant’s claims based upon his church attendance in Australia, unless the applicant’s conduct in Australia was to be disregarded, pursuant to s.91R(3). That section provides that:
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal dealt with the applicant conduct in Australia in the following way at [241]-[242] of its reasons[11]:
However, on the evidence before it the Tribunal does not accept the applicant’s attendance at church in Australia as evidence that he is a committed Christian and finds the chances that the applicant would be persecuted on the basis of his being a Christian should he return to the PRC in the reasonably foreseeable future to be remote and his fear of this happening not well-founded.
As set out above, on the basis of supporting documentation, (including photographs at Christmas 2010) and the applicant’s oral evidence given at the hearing, the Tribunal does accept the applicant has attended Church in Australian since December 2010. The Tribunal notes the applicant’s evidence that he commenced attending church within eight weeks of arriving. However, on the evidence before it the Tribunal does not accept the applicant’s attendance at church in Australia as evidence that he is a committed Christian and finds the chances that the applicant would be persecuted on the basis of his being a Christian should he return to the PRC in the reasonably foreseeable future to be remote and his fear of this happening not well-founded.
[11] CB 361
The parties agree that it can be inferred from the Tribunal’s reasoning above that the Tribunal was satisfied that the applicant had a reason for attending church in Australia other than to enhance his protection visa claims. A difficulty here is that the Tribunal does not make any finding on the reason or reasons for the applicant’s church attendance in Australia, apart from enhancing his protection visa claims. It may be inferred that the Tribunal considered that one of the reasons for the applicant’s church attendance in Australia was to enhance his claims as the Tribunal did not accept the applicant’s church attendance in Australia as evidence that he is a committed Christian. In the absence of any further reasoning by the Tribunal, it is a matter of pure speculation what other reason or reasons the applicant may have had for that attendance. The important point, however, is that, having implicitly accepted that there was a reason for the applicant’s church attendance in Australia, apart from the enhancement of his protection visa claims, the Tribunal needed to consider that conduct in dealing with the applicant’s claims of having a well-founded fear of persecution in China.
The Tribunal restricted that consideration to the question of whether the applicant faced a real risk of harm in China as a committed Christian. The Tribunal found, in effect, that the applicant is not a committed Christian, notwithstanding his church attendance in Australia and hence would not face a risk of harm for that reason. The question is whether the Tribunal needed also to consider whether the applicant faced a real risk of harm by reason of his church attendance in Australia, whether or not he is a committed Christian. The applicant contends that that consideration is called for. The Minister contends that no such consideration was required because no such claim was made.
The resolution of this issue requires consideration of the distinction between an element or integer of a claim and an item of evidence. The issue was recently addressed by Reeves J in SZOYH v Minister for Immigration[12] at [34]-[38] where his Honour said:
[12] [2012] FCA 713
The expression “component integers” appears to have been first used in connection with an appeal under the Migration Act 1958 (Cth) in Htun. The critical part of the reasons of Allsop J in Htun (see [25] above) was: “To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend.” (emphasis added)
In Htun, the Tribunal rejected the applicant’s claim he would face a real chance of persecution if he were to return to Burma because of his welfare, social and political activities in Australia “with the TRW [Tribal Refugee Welfare] in particular”. In doing so, the Tribunal relied upon information it obtained from the Department of Foreign Affairs and Trade that such activities “were sufficiently innocent not to be of a level as to make him of any concern to the Burmese authorities”: see Htun at [40]. However, the Tribunal failed to consider the applicant’s claims that he had a number of friends in Australia, some of whom were members of the Karen National Liberation Army. The Full Court held that the Tribunal made a jurisdictional error in not considering this component of the applicant’s claim because it involved “political activity and also ... friendships made with other Karen people of arguably seriously subversive background”. The Full Court obviously regarded this component of the applicant’s claim as an essential component of his claims for a protection visa such that it required consideration by the Tribunal: see Htun at [42] (at [25] above).
Aside from such an essential component or integer of an applicant’s claim, the Tribunal has no obligation “to refer to, or adequately to consider, evidence, whether or not it might be thought probative”: see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24] per Kenny J and the cases referred to there. Accordingly, its failure to do so does not give rise to jurisdictional error.
In SXRB, Lander J described the difference between an integer and evidence in these terms (at [32]–[33]) as follows:
The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa. Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.
Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial. The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself. It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived...
(Emphasis added)
It follows that whether a piece of evidence is of the kind that has to be considered by the Tribunal, depends on the nature of the evidence concerned, either considered alone, or in combination with other evidence, and its significance in terms of the possible effect it may have on the result of the Tribunal’s deliberations.
While the applicant asserts that a particular social group claim was expressly articulated, he concedes that he did not expressly articulate a sur place claim based solely on the fact of his attendance at church in Australia (separate from his claim that he is a genuine and committed house church Christian).
The Full Federal Court’s decision in NABE v Minister for Immigration (No 2)[13] at [55] is relevant here. In its decision in NABE, the Full Federal Court at [55] was referring to the decision of the High Court in Dranichnikov v Minister for Immigration[14] at [24] where the High Court had held that a failure to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction[15]. But in Dranichnikov, as the Full Federal Court goes on to point out (also in [55]), the claim to which the Tribunal failed to respond was clearly articulated:
In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the Applicant’s submissions —namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the Applicant’s membership of the group of “businessmen in Russia” was a reason for his persecution. (emphasis added)
[13] (2004) 144 FCR 1
[14] (2003) 77 ALJR 1088
[15] and see also Htunv Minister for Immigration (2001) 194 ALR 244, also referred to by the applicant in its submissions at [27]
In this case, on the other hand, the applicant had made a number of factual claims of church activities in China and in Australia which were all intended to support the proposition that he was a genuine and committed Christian. The particular social group claim was advanced in support of that claim and not as a separate claim based simply on attendance at a house church or Local Church (irrespective of any genuine belief or adherence). The evidence advanced of the applicant’s church attendance in Australia did not give rise to a separate and distinct claim that the applicant feared persecution in China as a member of a particular social group comprising non genuine house church or Local Church attendees in Australia. Further, there was no evidence before the Tribunal that the fact of the applicant’s church attendance in Australia (whether genuine or not) had become known to the Chinese authorities or would be likely to become known.
In those circumstances, there was no obligation on the Tribunal to consider a claim which was not articulated and which did not arise on the material. The applicant’s particular social group claim was inextricably linked to his claim of being a genuine and committed Christian, both in China and Australia, which was comprehensively rejected by the Tribunal. The consideration of that claim was therefore subsumed within the finding of greater generality that the applicant was not and never had been a committed and genuine house church or Local Church Christian (or indeed any manner of Christian at all).[16]
[16] See Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
I find that the applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 10 August 2012