SZRFV v Minister for Immigration - [2012] FMCA 1010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRFV v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1010

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to consider relevant considerations – whether Tribunal required to provide draft copy of reasons for comment – where alleged inconsistencies in Tribunal decision – where alleged Tribunal asked irrelevant questions – whether Tribunal fell into jurisdictional error – whether Tribunal may consider delay in applying for protection visa.

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

SZJJU v Minister for Immigration and Citizenship [2007] FCA 726
SZHTC v Minister for Immigration & Citizenship [2007] FCA 1199
SZHTC v Minister for Immigration & Anor [2007] FMCA 671
Selvadurai v Minster for Immigration & Anor (1994) 34 ALD 347
MZKAO v Minister for Immigration & Anor [2003] FCA 1484
Thuraisamy v Minister for Immigration & Anor [1999] FCA 1632

Applicant:

SZRFV

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 522 of 2012

Judgment of:

Raphael FM

Hearing date:

24 October 2012

Date of Last Submission:

24 October 2012

Delivered at:

Sydney

Delivered on:

24 October 2012

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the First Respondent:

Minter Ellison

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 522 of 2012

SZRFV

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 24 October 2003. On 28 July 2011 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa. On 26 September 2011 a delegate of the Minster refused to grant the protection visa. On 28 September 2011 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 25 November 2011. On 3 February 2012 the Tribunal determined to affirm the decision under review.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the Convention one of religion. He told that as a youth in China he had been brought up mostly by his aunt. He told that his aunt was a member of the Shouters Church in the area in which he lived. He told that in 2003 his aunt had been reported to the police when holding a gathering in her house. The police raided the property and took away everybody who was at the gathering. He learned about the incident and went to the police station the next morning where he saw his aunt and two other people being physically punished. Whilst he was trying to find a way to help his aunt he fell and hurt his leg. He was then discovered by the police and was put into a small cell and kept there for a short while before being sent back to school. He claimed that he was punished at school and was discriminated against thereafter. Because he had begun skipping classes at school as a result of his treatment, his parents decided that he should be sent to Australia to study and he came to Australia in 2003. He did not study for long. He claimed that his parents were unable to continue to support him. He remained in Australia working on and off.
The applicant told that he maintained an interest in the church and church activities which he had got from his aunt. He tried many churches in Australia, in particular the Catholic Church, but claims that he was unable to find one that suited him. But shortly after he was discovered by the immigration authorities he found and made contact with the Lidcombe branch of the Local Church in July 2011.
The applicant told that in early 2011 he sent news about the Jasmine Revolution to his aunt which would have put his aunt and his own parents in danger. He has told that the police summoned them for investigation. He believed his computer was hacked and he received threatening calls from an unknown caller. He believes his aunt remains under constant surveillance. He told that he had sent gospels to his parents but he believed they had been seized by the police.
The applicant was questioned by The Tribunal upon his story and it was put to him the concerns that the Tribunal held which might lead the Tribunal to conclude under s.91R(3) of the Migration Act 1958 (Cth)[1] that the conduct engaged in by him in Australia must be disregarded because he could not satisfy the Tribunal that he had engaged in that conduct otherwise for a purpose of strengthening his claims to be a refugee. In particular the Tribunal was concerned as to the lateness of his finding the house church in Lidcombe and his late commitment thereto. It was also concerned about his delay in applying for a protection visa, which appeared to be only stimulated by the fact that he had been discovered by the immigration authorities.
[1] “Act”
The Tribunal had concerns as to why he would send his aunt information which could get her into serious trouble in China. The Tribunal was also concerned that there were some inconsistencies between his oral evidence and his written evidence. For example, he did not appear to have mentioned in his written statement that he attended meetings of the Local Church at his aunt’s house. Before me today the applicant said that that was actually untrue and that the statement which says that he was a witness of the miracle of his aunt being cured of serious arthritis was indicative of the fact that he had attended meetings because to him the word “to witness” means to attend. This may be the case but I do not believe that the Tribunal’s conclusions about the applicant’s credibility really depended upon this finding alone and if the Tribunal was mistaken it was a mistake that it could have made on the evidence, which does not make the position clear. The applicant is reminded that it is his responsibility to satisfy the Tribunal that he is a person to whom Australia protection obligations.
The applicant claimed that should he be returned to China he would be in danger because of his aunt’s activities with the Local Church. The Tribunal was prepared to accept that his aunt probably was involved with the Local Church and had been since 2003 and that she had been detained in that year:
“[93]However, despite these findings, the Tribunal does not accept that his aunt’s Christianity or association with the local church will lead to the applicant facing a real chance of persecution for reasons of religion or imputed religion or political opinion in the reasonably foreseeable future. The Tribunal finds that the detention of the applicant in 2003 was a direct consequence of his attempted rescue mission on that occasion and not for reasons of his religion or imputed religion or political opinion.
The applicant was, subsequent to the incident, also able to depart the country without any problem, indicating that he did not attract the adverse attention of the authorities at the time. The Tribunal finds that the applicant’s experience of humiliation and shame at school in 2003 was not persecution as defined under s91R(1) in that it did not involve ‘serious harm’. Furthermore, the Tribunal finds that the applicant does not face a real change of recurrence of those experiences in future.
Although the Tribunal accepts the applicant’s evidence that his aunt was detained for her church related activities once in 1997 and once in 2003 and most recently, in March 2011 for her actions in handing out Jasmine revolution flyers there is no evidence before the Tribunal that the applicant’s parents have been persecuted as a result of his aunt’s activities despite living close to her in recent years. For these reasons the Tribunal finds the applicant does not face a real chance of persecution if he returned to China in the reasonably foreseeable future on the basis of his aunt’s Christianity or local church activities.” [CB 111]
The Tribunal considered some of the applicant’s claimed faith and Local Church attendance and baptism in this country but concluded, for reasons given, that it did not accept that the applicant:
[97]…was or is a genuine follower of the local church and is not satisfied that the applicant’s conduct in attending the local church in July 2011 and getting baptised in September 2011 was engaged in otherwise for the purpose of strengthening his claim to be a refugee. Therefore, pursuant to s91R(3) the Tribunal must disregard this conduct in its assessment of whether the applicant has a well founded fear of persecution.
[CB 112-113]
The Tribunal also dealt with some claims that the applicant had relating to threats made on a mobile phone but could not find sufficient evidence to satisfy it they had anything to do with his religious activities.
On 8 March 2012 the applicant filed an application in this court for review of the decision of the Tribunal. The orders sought, and in the grounds of application, indicate that the applicant does not agree with the RRT decision. He claimed that the Tribunal did not consider the risk he was under if he was forced to return to China. But that is the very thing that the Tribunal did consider and based upon the evidence that it had heard and the findings of fact that it had come to, including findings on the basis of independent country information, it did not consider that he was at the risk of serious harm should he return. In the orders sought the applicant claimed that the Tribunal did not consider that he would be persecuted and in big trouble if he returned home. This seems to be a repeat of the first ground and the same comments apply.
The third ground indicated that the Tribunal member failed to consider the evidence and the detailed explanation in the hearing and “… eventually failed to offer me any chance for further comment or explain in those outstanding issues of hearing, which is unfair and imprudent in decision making. By seeking consultation, I was told there is legal error located in the RRT’s decision and I hope I can be given legal justice accordingly.”
From the manner in which the applicant maintained his claims today I think what he meant in this paragraph was that he had not been given a draft copy of the Tribunal’s decision and asked to comment upon it. This used to be a common complaint, but the authorities now make it clear that there is no such obligation upon a Tribunal: SZJJU v Minister for Immigration and Citizenship [2007] FCA 726 at [7], SZHTC v Minister for Immigration & Citizenship [2007] FCA 1199 approving SZHTC v Minister for Immigration & Anor [2007] FMCA 671.
The grounds of application are threefold but they are only factual. They indicate that the applicant is a Chinese citizen and that a family member has experienced persecution, that he cannot go back to China because of his fear due to his preaching and Christian undertaking in Australia and that “the Chinese Government is still after me.” If he returned, he would jeopardise his commitment in faith and church practice. These are clearly not indicative of a jurisdictional error.
Before me today the applicant, who had clearly been through the Tribunal decision very carefully, made reference to what he considered to be inconsistencies in that decision. The first inconsistency he portrayed was that in [89] the Tribunal did not accept that the applicant was a genuine Local Church Christian follower in Australia. He compared that to findings by the Tribunal that the applicant had attended the Local Church. But whilst the difference may be subtle it is a fact that you can go to church without being committed and that is what the Tribunal found.
The applicant also claimed before me that he had been asked in considerable detail about his passport and why he had not renewed it. The applicant told me that he believed this was irrelevant. Certainly, the applicant’s failure to renew his passport, whilst being mentioned is not determinative of any issue but the Tribunal is entitled to ask whatever questions it believes are necessary for the purposes of coming to a conclusion about the applicant’s claims and it would be wrong of a court to interfere on the basis that some of those questions may not be strictly relevant. In any event the relevance seems to me to be ex post facto.
The applicant also said that he did not believe that the Tribunal should have relied on the independent country information it did because it had told him that some information was favourable and some was not. But once again it is entirely up to the Tribunal what independent country information it accepts and by accepting information that is unfavourable to an applicant, it does not thereby fall into jurisdictional error.
The applicant complained that one of the reasons that the Tribunal was concerned about his credibility was that of his delay in applying for a visa. But it has been clear ever since the decision of Heerey J in Selvadurai v Minster for Immigration & Anor (1994) 34 ALD 347 that this is a legitimate matter to take into account. See also applicant MZKAO v Minister for Immigration & Anor [2003] FCA 1484 and Thuraisamy v Minister for Immigration & Anor [1999] FCA 1632. Finally, the applicant told me that he believed it was wrong that the Tribunal had found against him on credibility grounds because he did not provide any witnesses to the genuineness of his Christian beliefs. He tells me that he told the Tribunal that if that was a problem he could provide such witnesses. But the fact is that it is for him to satisfy the Tribunal, not for the Tribunal to go off seeking its own evidence.
I dismiss the application. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 9 November 2012