SZRHQ v Minister for Immigration - [2012] FMCA 745

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRHQ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 745

MIGRATION – RRT decision – Chinese student claiming fear of religious persecution – disbelieved by Tribunal – no jurisdictional error shown – application dismissed.

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

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16

Applicant:

SZRHQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 685 of 2012

Judgment of:

Smith FM

Hearing date:

20 August 2012

Delivered at:

Sydney

Delivered on:

20 August 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms M Stone

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 685 of 2012

SZRHQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia from China as a student in August 2007 at the age of 18. He attended high school and college until April 2009, and his visa did not expire until March 2010. He continued in Australia unlawfully.
On 27 July 2011 he lodged an application for a protection visa assisted by a migration agent, Weiming Qian. The visa application answered the question: “Why did you leave that country [China]?”:
I am a Christian and came from a Christian family. I attended house church gathering in China. Our place was searched by police. Detention and persecution happened to faithful people. I was living in fear and had to flee from China. I will provide personal statement in a short time.
The visa application gave no details of these events, and was not accompanied by any corroborative evidence.
On 9 August 2011 the applicant’s agent faxed an unsworn statement to the Department. In this statement the applicant referred to his family, and not himself, as suffering persecution for their religious opinions. The statement said that his family “believed in Buddha”, but that in August 2006 his father suffered a miraculous recovery from sickness as a result of attending an underground church, and from that date “he chose to follow Jesus”. The statement said that his mother became a Christian also, and “my young brother and I attended the worship with them sometimes”.
The statement said that the applicant was sent to study in Australia in August 2007, and “saw Christian evangelizing on the streets”. The statement said nothing about his attending church in Australia, but said that he was informed in September 2007 that his father had been detained for three days “when they were at worship in Longtian Town”. He was again told that there was an incident in July 2008, in which both parents were detained “when attending the worship gathering”. Police searched his parents’ home and his mother was released after some days, but his father was held for three months and required to pay “a big amount penalty before released”. The visa statement said: “I wanted to go back to China but my parents insisted me not to go back to China on the phone”. As a result of the police visits, customers stopped attending his father’s store, and he was unable to send money to the applicant. The applicant claimed that he did not discover until July 2011 that he could apply for a protection visa.
The applicant attended an interview by a delegate of the Minister on 27 September 2011. The delegate questioned the applicant about his Christian beliefs and his religious activities in Australia. The applicant claimed to have been attending a church in Padstow, the name and address and denomination of which he could not explain.
The delegate made a decision on 28 September 2011, refusing the visa application. The delegate thought that the applicant had “little or no knowledge about Christianity”, and did not accept that the applicant had been attending church services on a regular basis. She was not satisfied that he was an active member of the Christian faith. On that assessment, the delegate concluded that the applicant would not be an active member of the Christian faith if he returned to China, and that he would not face a real chance of persecution for reason of his religion.
The applicant appealed to the Tribunal, assisted by his agent. He presented no corroboration of any of his claims, including of his Australian Christian activities. He attended a hearing on 22 February 2012 without his agent. The Tribunal then made a decision on 29 February 2012, affirming the delegate’s decision.
In its statement of reasons, the Tribunal recounted the applicant’s refugee claims made in his original application, in his visa statement, in his interview by the delegate, and at the hearing.
The Tribunal referred to independent information about the treatment of unregistered church members in Fujian province of China. There was evidence suggesting that the official religious policy had been applied relatively liberally in Fujian, although there have been occasional crackdowns on house churches.
In its “Findings and Reasons”, the Tribunal considered the applicant’s claims to be a Christian. In his evidence to the Tribunal, the applicant had told it that he had never attended a church or house gathering in China, but had prayed with his parents sometimes, and once his grandmother took him to a church gathering. The Tribunal considered the applicant’s claims of attendance at a church in Padstow, which he claimed had become once a fortnight since April 2009. The Tribunal referred to the applicant’s evidence about his knowledge of Christianity given to the delegate and to the Tribunal, and it concluded that it would have expected his knowledge to be greater, including as to “when Jesus was born”.
The Tribunal concluded that “the applicant is not a Christian as claimed”. It doubted whether he had attended church in Padstow since 2007 or regularly as claimed. It said that, even if it was prepared to accept that he had attended a church on occasions, it was not satisfied that this was otherwise than for the purpose of strengthening his claims to be a refugee “as it does not accept that the applicant is a Christian as claimed”. The Tribunal said that it was bound to disregard any such conduct by reason of s.91R(3) of the Migration Act 1958 (Cth).
The Tribunal considered the applicant’s claims that his father had been arrested and detained twice, and that his mother had also been arrested for attending a house gathering. It said the applicant’s responses, when questioned about what had happened to the parents, appeared to be a recitation of his written claims, because “a common response to a question beyond his statement about his parents’ worship and religious practice was that he did not know as his parents did not tell him”.
The Tribunal said:
Additionally, the Tribunal considers that the applicant’s delay in applying for protection undermines his claim that his parents were arrested and detained. …
The Tribunal thought that the applicant would have found out earlier about other options to remain in Australia once he stopped studying in April 2009, if he genuinely feared return in relation to his or his parents’ Christianity.
The Tribunal concluded:
61.The Tribunal therefore does not accept that the applicant’s parents have been arrested and detained in relation to being underground Christians. The Tribunal has serious doubts that the applicant’s parents are even Christian as claimed given his very limited knowledge of their religious practices. The Tribunal notes that the applicant stated that his mother’s cousin, who is from Fuqing city and a Christian, had returned to China from Australia about 2 years ago.
62.Whilst the Tribunal accepts that there have been reports of action against house churches in 2006 and 2010 having regard to the independent evidence above, it also notes that the authorities in Fujian Province where the applicant’s family lives are considered fairly tolerant of underground Christians. In any case, in relation to the applicant’s claimed fear on return to China, the Tribunal does not accept that the applicant will attend underground house gatherings with his parents if he were return to China as it does not accept that the applicant is a Christian. The Tribunal finds that there is not a real chance that the applicant will be persecuted for his religion or for any other Convention reason if he returns to China now or in the reasonably foreseeable future.
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 should have been believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s grounds of his application appear as follows:
1.I suffered unfair judgement in my case with Refugee Review Tribunal (the Tribunal). The Tribunal unreasonably stated that I attended church in sole purpose of strengthening my claims to be a refugee (paragraph 58 of Decision Record). This did not reflect the truth, and it was not logical either. I had attended church in Padstow since 2007, more than three years before the submission of my Protection visa application. At that time, I did not hear about the Protection visa.
2.There is another unfair judgement made by the Tribunal. The Tribunal questioned me about the persecution happened to my parents in China (paragraph 59 of Decision Record). It is common that the parents would not give child the details of their horrible experience as they did not want to have their child anxious. The Tribunal ignored this common sense. Thus, the Tribunal did not fairly examine my case.
The applicant has not filed any additional amended application or written submissions to explain possible jurisdictional error. He did not wish to make any oral submissions to me today.
It appears to me that the two grounds argue only with the merits of two of the Tribunal’s factual findings, and do not raise any arguable jurisdictional error.
In relation to Ground 1, the Tribunal’s finding was, in fact, not that the applicant had attended a church in Australia with the sole purpose of strengthening his claims, but that the Tribunal was not satisfied that it was not his sole purpose. The essential reason the Tribunal gave for not being so satisfied was its earlier reasoning, which led it to doubt whether he was a Christian at all. There was nothing illogical or unreasonable about taking that consideration into account when assessing the motives for any church attendances. Contrary to the assumption in the ground, the Tribunal did not positively find that the applicant had attended church prior to discovering his rights to lodge a protection visa application.
I therefore do not accept that this part of the Tribunal’s reasoning exhibits any unreasonableness, illogicality or lack of evidentiary foundation, so as to satisfy the tests of jurisdictional error identified by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16.
Ground 2 criticises the Tribunal for making an adverse observation as to the lack of information as to events affecting his parents which the applicant could give the Tribunal. However, I am not satisfied that this finding was not open to the Tribunal. When making its adverse findings, it appears to me that the Tribunal may have taken into account the applicant’s demeanour, as well as the contents of his responses when questioned by the Tribunal, neither of which is now shown clearly in the absence of a transcript or other evidence. In any event, I am not satisfied that the Tribunal’s reasoning exhibits any ground of jurisdictional error.
In my opinion, the Tribunal’s ultimate conclusion was clearly open to it on the evidence before it, or lack of evidence before it. I am not satisfied that it is affected by any jurisdictional error.
I must therefore dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 28 August 2012