SZRDN v Minister for Immigration - [2012] FMCA 725

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRDN v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 725

MIGRATION – RRT decision – Chinese applicant claiming persecution for Christian evangelism – claims of persecution disbelieved – no jurisdictional error shown in Tribunal’s reasoning – application dismissed.

Migration Act 1958 (Cth), s.91R(3)

Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [2001] HCA 28

Applicant:

SZRDN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 309 of 2012

Judgment of:

Smith FM

Hearing date:

13 August 2012

Delivered at:

Sydney

Delivered on:

13 August 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms V Bulut

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 309 of 2012

SZRDN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in February 2011, travelling on a fraudulently altered Chinese passport showing the name and identity of a person born in 1960 and with the applicant’s photograph inserted. On 12 May 2011 she lodged an application for a protection visa in a different name, claiming the identity of a person born in 1973 in Fujian Province. She presented some identity documents concerning that person. The Department had records, which were later put to the applicant by the Tribunal, concerning a student guardianship visa made by that person and refused. In the application for a protection visa and in all the subsequent proceedings in the Department and Tribunal, the applicant was assisted by a migration agent, Harry Huang of Pricilla International Co Pty Ltd.
The protection visa application set out a history upon which the applicant claimed to fear persecution if she returned to The People’s Republic of China. The applicant claimed that in 2008, and as a result of the lack of success in her student guardianship visa which she blamed on a “distant relative” who had failed to return the money which she paid him in advance, she was “in a bad mood”. She therefore accepted the approaches of Ms Yu, who “approached me, evangelised to me and arranged me to attend Christian meeting for the first time in September 2008”. The applicant attended meetings of Christians at Ms Yu’s home, and continually attended Christian meetings at the homes of different church brothers or sisters. On Christmas Day 2008 she was baptised and “since then, I have become a genuine Christian”. She said that the church was an “unregistered family Christian church”, whose members refused to participate in the official registered church.
The applicant said that she had a good friend who managed a petrol station in a distant province, Henan Province. In the middle of 2009 the applicant went there at her friend’s request, to assist her friend. The friend “became the first person to whom I evangelised after I arrived in Henan Province”. With the help of her friend she then “evangelised to other employees at the petrol station”. She set up a secret bible study group at the petrol station, and invited Ms Yu to join her and her friend to assist the study group. Ms Yu arranged for a priest to baptise new believers, and by July 2010 most of the people who worked at the petrol station had become Christians and members of the underground church. Ms Yu and the applicant also set up two secret bible study groups in two neighbouring villages.
On Christmas Day 2010 the applicant and Ms Yu organised a Christmas party in one of the villages, and the participants were suddenly surrounded by many police and taken to the police station. The applicant and Ms Yu were regarded as the leaders, and were transferred to the Public Security Bureau (“the PSB”), where they were interrogated and physically mistreated and tortured. The police were not aware of the bible study group at the petrol station, and the applicant’s friend was able to help the applicant to escape, when she was transferred to a hospital in January 2011. She said:
Originally, I was not allowed to leave the hospital without permission. But, it was the only chance for me to escape from persecution: and thus [my friend] had to use the money to bribe the doctor and nurse there. On 25 January 2011, I fled away from the hospital in the end.
The applicant said she returned briefly to Fujian, and then obtained her false passport, after being told that she was on the black list of the PSB. The applicant claimed:
Right now, the police is looking for me. My parents, siblings as well as other relatives have been questioned by the police. I have also been informed that Ms Yu has been transferred to a labour camp in Henan province.
The applicant did not present any corroboration of these claims, other than a Chinese identity card. She attended an interview by a delegate for the Minister on 27 June 2011, and the delegate made a decision on 18 July 2011 refusing the visa application.
In his statement of reasons, the delegate noted the absence of corroborative evidence about what had happened in China and of the applicant’s Christian activities since arriving in Australia. The delegate said that the applicant’s claims of her role in establishing three secret bible study groups, of her arrest and release, were “implausible”, and that her claims were “very symmetrical or manufactured, and compartmentalised”. The delegate then explained what he meant by these observations. Since the delegate disbelieved the applicant’s claims to have been persecuted and to be of interest to the Chinese authorities, he did not believe that there was a real chance of her suffering any Convention‑related persecution in the future should she return to China. The delegate referred to country information concerning participation in unregistered Christian groups, noting in particular that there appeared to be a “high degree of religious tolerance” in Fujian in relation to “autonomous Protestant communities and clandestine Catholics”.
The applicant appealed to the Tribunal. She presented a number of documents, mostly untranslated, corroborating her attendance and involvement as a regular worshipper at the Padstow Chinese Congregational Church in Sydney. She presented no corroboration of the claimed events in China. She attended two hearings held by the Tribunal. The first appears to have lasted for nearly three hours and was held on 7 November 2011, and the second hearing lasted for about two hours on 16 December 2011. The applicant’s agent, Mr Huang, attended both hearings, and there were some adjournments in the course of the hearings which allowed him to advise the applicant.
The applicant and her agent received the recordings of both hearings, and she has tendered a transcript of the second hearing, but not the first hearing. The transcript is not properly verified, but the Minister has not objected to it. I have read it, and it appears in my opinion to confirm the Tribunal’s summary of the hearings in its statement of reasons. The applicant did not submit otherwise, and did not take me to any particular passage in the transcript in support of her grounds of bias nor otherwise. I can therefore only observe generally, that on my reading of the transcript, it displays no evidence suggesting bias, whether actual or reasonably apprehended. I would also observe that it appears to support, rather than otherwise, the Tribunal’s findings that at some points the applicant contradicted herself, and it contains some other possible support for the Tribunal’s ultimate conclusions adverse to her credibility as a witness. Necessarily, it does not reveal what was the applicant’s demeanour in the course of giving her evidence.
Subsequent to the hearing, the Tribunal invited comments on some documents tendered in support of a bridging visa application, and these were responded to in a manner which ultimately the Tribunal accepted. It is therefore not necessary to explore this aspect of the case.
The Tribunal made a decision on 20 January 2012 which affirmed the delegate’s decision. The Tribunal recounted how the applicant had presented her claims in writing and at interviews and hearings. I shall refer to some relevant passages further below.
The Tribunal also referred to country information concerning recent reports concerning the treatment in China of participants in unregistered Christian house churches. In particular, the Tribunal considered information about house churches in Fujian. It concluded:
117.In summary, there has been a consistent lack of reporting about Fujian as a site of arrests, detention and church closures associated with unregistered Christian churches, which appears to indicate that Fujian may be a location in which authorities adopt a more tolerant approach.
The Tribunal referred to other evidence of an older nature, which referred to “the permissive environment assessed to exist in Fujian”, and it said in relation to Henan Province:
121.In relation to Henan Province, the China Aid Association reported 9 cases of persecution in 2010 and 12 cases in 2009.
(citations omitted)
In the Tribunal’s “Findings and Reasons”, the Tribunal noted the applicant’s travel on a passport in a different identity, but said that it was prepared to accept that the applicant has the identity that she now claimed.
The Tribunal also said:
124.The Tribunal accepts the applicant is a Christian because she has demonstrated an extensive knowledge of the tenets of Christianity throughout the visa process. However it does not accept as credible her claims to have converted to Christianity because her mood was low and she felt everybody around her was a liar because she had been cheated by her distant relative for an amount of RMB100,000 in relation to her previous unsuccessful visa application. The Tribunal does not accept that the applicant converted to Christianity for this reason and finds her evidence and explanations in this regard not credible as set out below.
The Tribunal noted that the applicant had claimed not to have had any knowledge of being notified of the refusal of the previous student guardianship visa application, which was a matter upon which she had been questioned at the second hearing. However, the Tribunal did not accept that she did not have knowledge that the application had been refused in 2006, and that she was not aware of the visa refusal letter sent to the address which was on her Chinese identity card. The applicant had claimed that this was the address of her husband and his family, and that she had moved to live with her mother and other members of her own family. However, the Tribunal accepted other evidence of the applicant, confirming that letters had been forwarded. The Tribunal said that it did not accept that the applicant “felt cheated by her distant relative in relation to the application and that this was the reason why she became a Christian”.
The Tribunal also explained why her claims as to what had occurred in Henan Province were not credible. The Tribunal noted evidence which the applicant had given when her claims about this were tested by the Tribunal in relation to the correct name of a village, where she claimed to have conducted a Bible study group. The Tribunal said:
129.The Tribunal is of the view that the applicant’s knowledge of the surrounding area of [her friend’s town] appeared to have been learnt for the purposes of the application. Whilst the applicant correctly named some of the nearby villages at the hearing, she was initially unable to give the proper name of the village in which she claimed she and her friend, Ms Yu, had set up a secret Bible study group and which she claimed to have also regularly visited. The applicant claimed that the full name of Mazhuang village was “Hanmazhuang”. In order to clarify the applicant’s pronunciation of the village name, the Tribunal requested that the applicant also write the Chinese characters for the village. The written name in Chinese characters and pinyin were not consistent with the village name of “Yanmazhuang” which appears on a Google map of that area in China (‘Map of China 2011’, Google Maps, and - accessed 9 November 2011). When it was put to the applicant that the name was not the same as the Google map, she claimed that it was correct and that she had seen the name of the village on the number plates of the houses of that village. It was only after an adjournment that she referred to the correct name “Yanmazhuang”, and explained that local villagers referred to the village as either “Yanmazhuang” or “Hanmazhuang”. The Tribunal does not accept her claim that the village is referred to as either of those names by local villagers and notes that the pinyin for the Chinese character that the applicant wrote at hearing is “han” and not “yan”. Given this change in response, the Tribunal is of the view that the applicant obtained assistance during an adjournment of the hearing as to the proper name of the village and changed her response after the adjournment. The Tribunal has also considered the applicant’s claim that she was only there for a short time however given that she claims to have seen the name written on the number plates of the houses of that village, the Tribunal does not accept that this explains why she was not able to give the correct name of the village. The Tribunal is of the view that the applicant was not able to recall the proper name of the village, which she claimed she visited at least once a week whilst living in Henan Province, because she did not live and work in [her friend’s town] as claimed.
The Tribunal said that it also found the applicant’s claims to have escaped from hospital lacking in credibility. The Tribunal thought it was inconsistent with her claims that “she and Ms Yu were of particular interest to the authorities”.
The Tribunal said: “furthermore, the Tribunal is of the view that the applicant had a tendency to respond to questions regarding her time in Henan Province with rehearsed answers and also changed her responses during the hearing in relation to matters which were not central to her claims”. The Tribunal gave examples of this, which are confirmed by the transcript.
The Tribunal added:
132.Additionally, the Tribunal notes that the incident on 25 December 2010 which led to her claimed arrest and detention was not reported. The Tribunal notes that the China Aid Association reported 14 incidents regarding unregistered local churches which had occurred in Henan in 2009 and 10 incidents in Henan in 2010. The Tribunal has considered the applicant’s claims that even their Pastor who had been detained for a year had not been reported and that there were no reports about her detention and arrest because she and Yu Mei Yu were from another province, did not have any connections with others and were not residents in the province. Whilst the Tribunal accepts that not every incident may be reported, it does not accept that an incident involving a person or persons who were not from the local area would not be reported.
The Tribunal rejected the whole of the applicant’s claims concerning her presence in Henan Province, the activities she claimed to have engaged in there, and the persecution which she claimed to have caused her to flee to Australia.
Although the Tribunal said that it had “some doubts as to when the applicant became a Christian”, it accepted that she did attend a Christian church in Australia within the first week of her arrival, and that she had continued to attend that church regularly subsequently. The Tribunal accepted that this indicated a “demonstrated commitment to Christianity while in Australia”. The Tribunal continued:
136.Nonetheless, the Tribunal is prepared to accept that the applicant is a Christian who on return to China will continue to practice her faith and attend underground or house gatherings and evangelise. In assessing whether there is a real chance of persecution if the applicant was to return to Fujian Province and practice her faith as an underground Christian, the Tribunal has placed considerable weight on the country information cited above which indicates that the authorities in Fujian have adopted a more liberal attitude towards Protestant churches and that people are able to attend unregistered churches. The applicant responded to the country information by stating that she was not arrested and detained in Fujian Province. However, as the applicant is from Fujian Province and her family remains there, the Tribunal finds that she will return to Fujian Province. The applicant also stated that the arrest and detention of her Pastor had not been reported. Whilst the Tribunal accepts that not every incident may be reported, the Tribunal is of the view that given there were incidents reported across other parts of China, that the situation in Fujian Province is such that there is not a real chance of persecution in the reasonably foreseeable future if the applicant were to return to Fujian Province and continue to practise her faith as an underground Christian. Fujian is one of the provinces in China where ‘underground’ Protestant churches have fewer problems and it is reported that many unregistered churches operate side by side with the registered churches, and that believers have no difficulty practising their religion.
137.The Tribunal’s view is further strengthened by the applicant’s own evidence that nothing has happened to her or her family as a consequence of practising their faith in Fujian Province. The Tribunal thus finds that the applicant does not have a well‑founded fear of persecution for reason of her religion. Whilst the applicant claimed to have a fear of being arrested because she had been arrested 2 times previously in relation to a forced abortion and sterilisation, the applicant has not claimed to fear persecution in China other than in relation to her religion.
The Tribunal referred to the applicant’s previous unsuccessful visa application to come to Australia in 2006, and said that this “raises concerns that she has departed China for reasons other than those claimed”. The Tribunal also referred to the fact that the applicant had obtained a false passport, and said that it was “not satisfied that it was acquired to enable the applicant to leave China because she was wanted by the authorities and on the blacklist. The Tribunal considers that it was acquired for reasons entirely unrelated to these claims”.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.
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 is a refugee nor whether she should be believed nor whether she should be given permission to stay in Australia.
The applicant’s grounds are set out in her original application to the Court which are (numbering added):
1.The Tribunal accepts that I am a Christian; but the Tribunal failed to consider my well‑founded fear of persecution on return even if she does not accept my claims to have been converted to Christianity.
2.The Tribunal’s finding on my central evidence, which is my leading role played in the underground church in Henan Province, is based on merely her own supposition. The Tribunal failed to consider my evidence impartially and properly.
3.The Tribunal’s finding is self‑contradictory. On one side, the Tribunal accepts that not every incident may be reported; but on the other side, the Tribunal in fact stated that an incident involving a person or persons who were not from the local area would be reported.
4.The Tribunal failed to consider my evidence in relation to my active involvement in the Christian church in Australia; and particularly the Tribunal failed to consider that I do have a well‑founded fear of persecution on return owing to my conducts in Australia.
5.The Tribunal has never ever asked where I would reside if I were to return to China but assume that I must remind in Fujian.

These grounds were addressed in a written submission filed before today’s hearing, and in further submissions which the applicant presented orally. Her written submission raised one additional matter, but so far as I could detect she otherwise relied on the above five grounds.
Ground 1 was explained in the applicant’s submissions by reference to country information which points out that the Chinese Constitution grants freedom of religion, but that in some parts of the country “religious groups, such as Protestant groups unaffiliated with a patriotic religious association, or Catholics professing loyalty to the Vatican, are not permitted to register as legal entities” and their members may be charged with various crimes. The applicant submitted:
In other words, a genuine Christian like me, who firmly and strongly rejects the government to enforce other laws and policies that restrict religious freedom and who does not belong to one of the five state‑sanctioned “patriotic religious associations”, will have a real chance of persecution in China. Particularly, I will be charged with various crimes, including “illegal religious activities” or “disrupting social stability.”
The Tribunal, however, failed to consider my real risk of persecution on return as a genuine Christian.
However, in my opinion, the reasoning of the Tribunal in paragraphs 136 and 137, extracted above, did assess the applicant’s risks of being persecuted if she returned to China. It did so on the basis of its favourable findings that she is now a person with demonstrated commitment to Christianity, and who on return would practise her faith by participation at house gatherings and evangelical events.
In my opinion, the applicant’s attack on the Tribunal’s conclusions in this respect went only to the merits of the Tribunal’s adverse assessment of the risks of persecution. I do consider that the Tribunal’s conclusions were open to it on the evidence, including the country information which it quoted. I therefore do not accept that the applicant has raised or identified jurisdictional error in her submissions addressing Ground 1.
A related issue raised by the applicant’s submissions on Ground 1, which is also raised by Ground 5, is whether the Tribunal erroneously assessed the applicant’s situation on return to China by reference to the more tolerant environment in Fujian, and not by reference to all parts of China.
However, in my opinion, the Tribunal made no error, whether of fact or law, by assessing the risks of future persecution by reference to one location in China. Fujian undoubtedly was the home province of the applicant, where she had abundant family connections, including her children and extended family. The Tribunal had been invited by the applicant to accept, and it did accept, that this was the location at which the applicant had lived for most of her life before coming in Australia, and it also rejected her claim of a temporary move to work in Henan Province. It was therefore appropriate for the Tribunal to assess the applicant’s risk of Convention‑related persecution by reference to her home location. Having been satisfied that the applicant did not have a well‑founded fear of persecution in that location, the Tribunal was not obliged to address her hypothetical situation in other locations.
I do not accept that the applicant was in any respects unaware that the Tribunal might approach her future situation on that basis, and there are indications in the transcript that the applicant was aware that it would do so, for example, in an exchange which the Tribunal has summarised at paragraph 73 of its reasons.
Contrary to the applicant’s submissions, in my opinion, the Tribunals findings which addressed her future situation if she returned to her family and home in Fujian were not attended by any breach of procedural fairness. In particular, there is no basis for contending that this reasoning might raise a concern whether the Tribunal assessed the applicant’s claims with an unbiased mind.
Ground 2 attacks the Tribunal’s rejection of the applicant’s credibility, as to her “leading role played in the underground church in Henan Province”. In my opinion, her submissions addressing this ground also did not rise above an attack on the merit. In my opinion, the applicant has not shown that the Tribunal’s adverse assessment of the content and demeanour of her answers when questioned reveals any bias, or might do so under the principles of apprehended bias explained by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [2001] HCA 28. It was the function of the Tribunal to make its own assessment of the applicant as a witness, and criticisms of the Tribunal for doing so, using language of “subjective” and “her own supposition”, have not persuaded me that the Tribunal did not, in fact and appearance, consider and weigh all of the applicant’s evidence impartially and properly.
In my opinion, the Tribunal’s adverse reasoning was open to it, when testing the applicant’s claims against some concrete information obtained from a Google map, which it put to the applicant. Reading the transcript of the second hearing concerning this, it appeared to me that it would have been open to the Tribunal to have formed an adverse assessment of the applicant, as a witness who had difficulty responding to questions which moved away from the narrative which the applicant had presented with the visa application, or sought to explore that narrative in some of its particulars.
Ground 3 criticises the Tribunal for making a “self‑contradictory” finding, but is not precisely focused in the grounds of review or in the applicant’s submissions. However, it appears to me, as it did to the Minister’s representative, that it was an attack on the Tribunal’s reasoning set out in paragraph 132, which I have extracted above, referring to the reporting of incidents concerning Henan province.
The Tribunal’s reasoning in this paragraph was a minor element in the Tribunal’s adverse conclusion on the applicant’s credibility. In my opinion, even if it did display some irrationality, this would not result in the invalidity of the Tribunal’s ultimate conclusions (compare Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159 at [17] and [83]).
Moreover, on a fair reading of the Tribunal’s reasoning I do not accept that there was any irrationality which could provide jurisdictional error. I accept in relation to this ground the submission made by the Minister’s representative:
29.The First Respondent respectfully submits that the Applicant’s contention is incorrect, as the Tribunal’s findings were not inconsistent or contradictory. The Tribunal had before it independent country information which demonstrated that incidents with unregistered local churches in Henan province had been reported in 2009 and 2010. There was no reference to the incident described by the Applicant. When this was put to the Applicant (at CB 167 [57] – [58]), she explained the reason the incident involving the Applicant and Ms Yu was not reported was because they were from another province. On considering all the material before it, the Tribunal noted that although not every incident may be reported, it did not accept the Applicant’s explanation that an incident involving a person or persons who were not from the local area would not be reported (at CB [185] – [132]). The Tribunal did not accept that this was the reason for the absence of a report. The Tribunal did not make a finding that incidents involving a person or persons who were not from the local area would necessarily be reported, it simply did not accept the Applicant’s explanation. This finding was one of a number of credibility concerns the Tribunal had with the Applicant’s claims relating to Henan province, which ultimately led the Tribunal to reject that the Applicant was in Henan province from July 2009 until January 2011. No error is revealed by the Tribunal’s approach.
In relation to Ground 4, it is incorrect to characterise the Tribunal’s reasoning as failing to consider the applicant’s evidence about her involvement in the congregation at Padstow. It plainly considered that evidence, and accepted that it demonstrated a “commitment to Christianity”. As I have explained above, the Tribunal did not then fail to consider whether that commitment might expose the applicant to persecution on return to China. It expressly addressed this issue. The Tribunal’s findings did not have the consequence that it was obliged to disregard her attendances at church, pursuant to s.91R(3) of the Migration Act 1958 (Cth), and the Tribunal correctly did not apply that provision.
There was no failure by the Tribunal to address any element or ‘integer’ in the applicant’s refugee case. In this respect, the applicant did not claim, and the material before the Tribunal did not raise, any added risk of persecution by reason only of her attendance at her Christian church in Australia.
For all the above reasons, neither this ground nor any of the other grounds of the applicant’s application have identified jurisdictional error affecting the Tribunal’s decision.
The applicant’s written submission raised an additional point, which was framed as follows:
3.This is to submit that the Tribunal made its finding based on completely incorrect or no relevant country information.
Particulars
My central claim is about my active role played in the underground church in Henan Province. I have never claimed to be a member of the Local Church or the Shouters or Little Flock. But, the Tribunal’s findings have greatly relied on the country information in Fujian Province or the information about the Local Church or Shouters or Little Flock. The Tribunal just simply mentioned the information about Henan Province (Paragraph 121 of the Tribunal’s decision), but the Tribunal has never ever considered such an important independent evidence which has obviously been in relation to my claims directly.
(emphasis in original)
However, in my opinion, this argument is based on a misreading of the Tribunal’s discussion of the country information, and of what it drew from that information. It is correct that the Tribunal did refer to evidence concerning the absence of persecution of some fundamentalist Christian groups, which in the past and in other provinces had attracted particular persecution, including the Little Flock and the Shouters or Local Church. It was relevant for the Tribunal to consider that information, since it was rational to conclude from a degree of tolerance even for members of these churches, that members of less obnoxious congregations (in the eyes of the Chinese authorities) might receive similar tolerance. The Tribunal’s opening and concluding discussion of all the country information shows clearly that it did not address the applicant’s situation on a false assumption that she had claimed to be a member of the Local Church, Shouters or Little Flock.
Taking into account all that the applicant has put to the Court in writing and orally today, in my opinion she has not established a good ground for the relief she seeks in the present application.
I must therefore dismiss the application.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 22 August 2012