SZRNB v Minister for Immigration

[2012] FMCA 1246

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNB v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1246

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Migration Act 1958 (Cth), ss.36, 91R, 422B, 424A

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

Applicant: SZRNB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1159 of 2012

Judgment of: Barnes FM

Hearing date: 3 December 2012

Delivered at: Sydney

Delivered on: 3 December 2012

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1159 of 2012

SZRNB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 7 May 2012.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, a citizen of the Peoples Republic of China, arrived in Australia in 2007.  He applied for a protection visa in January 2012. 

2. In support of his protection visa application, the applicant claimed that under the influence of his mother he joined the Family Church in China when he was young, that his family home was one of the gathering points, that his mother and grandmother had been “believers” and that his mother and grandmother had been baptised.  He claimed that his mother’s church had been reported and that his mother and his older cousin were arrested.  In his initial claims, he claimed this occurred towards the end of 2006 although he subsequently provided a different date of early 2007.  He claimed his parents stopped him from attending any more church activities, did not allow him to be baptised and in 2007 decided to send him to Australia to study. 

3. The applicant claimed he communicated with friends in China and listened to some gospel programs.  He claimed that in October 2007 he heard his mother and a younger brother had been arrested and some of his family members had warned him not to return to China.  He claimed that although he had been in Australia for some time, he had not “found [his] religion”.  However he claimed that in January 2012 he had “accidentally” come across a parish of the Family Church in Australia and was “preparing to join it”.  He claimed to fear persecution in China by reason of his Christian religion and as a member of the Family Church or underground church. 

4. The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal.  He attended a Tribunal hearing.  He submitted to the Tribunal a baptism certificate from the Central Baptist Church certifying that he had been baptised in March 2012 in Villawood Detention Centre. 

5. In its reasons for decision the Tribunal set out in detail the claims made by the applicant in connection with his protection visa application as well as in his interview with the delegate (when he suggested that his claims should have referred to events in early 2007), and also the evidence that the applicant gave at the Tribunal hearing.  The applicant accepted the Tribunal’s summary of his claims, including a fear that if he returned to China he believed he may face arrest as a member of the Family Church. 

6. The Tribunal’s account of the Tribunal hearing, which is the only evidence before the Court of what occurred in the hearing, reveals that the Tribunal raised with the applicant the various aspects of his claims and its concerns in that respect, including its concerns about the shortcomings in his claims about what had occurred in China, the time that had lapsed before he sought protection in Australia, his failure to attend Christian worship services in Australia before being detained and the fact that this did not appear to be action one would expect of a committed Christian, and also issues in relation to the applicant’s level of familiarity with the Bible. The Tribunal also raised with the applicant the possible application of s.91R(3) of the Migration Act 1958 (Cth) in relation to the conduct he had engaged in while in Australia.

7. In its findings and reasons the Tribunal made the point that, apart from the recent baptism certificate, the applicant’s claims were “unsupported assertions”.  It addressed the original inconsistent evidence from the applicant about when the activities of the Family Church were reported to the authorities and the applicant’s claim that he had made a “mistake” that he had not discovered until later.  The Tribunal was of the view that this inconsistency in his evidence about the timing of the alleged event undermined the applicant’s credibility.

8. The Tribunal also expressed concern in relation to the applicant’s claims that his parents decided to send him to Australia because of the arrest of his mother and cousin, given that he had obtained a passport prior to that time.  The Tribunal did not accept the applicant’s explanation, made after the point was pressed, that the decision to send him to Australia was motivated not by the arrest of his mother and his cousin but rather by “prior interest by the authorities in the family church”.  The Tribunal found that the decision the applicant should travel to Australia to study “was not motivated by anything to do with [his] mother’s alleged involvement” in a Family Church and found that this undermined the credibility of his claim. 

9. The Tribunal also had regard to the delay in the applicant seeking protection.  In particular he did not do so when he ceased studying and was in breach of his student visa, when that visa expired or when he claimed his mother and younger brother were arrested.  It did not accept that he was “unaware of his right to seek protection” until after he was detained, having regard to the fact that such issue was widely publicised.  Nor did it accept that he would have failed to make inquiries about his options for remaining legally in Australia. 

10. The Tribunal also found that if the applicant had genuinely been a Christian in China it would have expected him to have associated himself with the Christian church in Australia soon after his arrival.  It had regard to his claims of attending an English-speaking church “once or twice” in late 2007 or early 2008 and a Cantonese-speaking church on a few occasions in 2008 and once in 2011. 

11. The Tribunal regarded this claimed pattern of attendance at church as “inconsistent” with the claim the applicant was a genuine Christian.  It did not accept the applicant’s explanation that he did not have time and that he had asked a friend to find him a church, but that that friend had not been able to find a “suitable” church.  Nor did the Tribunal accept the applicant’s explanation that during this time he “found support” in material sent to him by friends in the absence of copies of such material. 

12. The Tribunal was not satisfied the applicant ever attended a Christian church in Australia prior to his detention in January 2012.  The Tribunal also found it “significant” that the applicant did not possess a Bible and found his claims that he tried to “maintain the Christian traditions of praying and reading the Bible” to be inconsistent with that evidence. 

13. The Tribunal considered the applicant’s evidence about attending Christian worship services in detention and the level of knowledge he had displayed about Christian beliefs.  It accepted that it was clear that he had some knowledge of elements of the Christian faith and the Gospels. 

14. The Tribunal found that this knowledge was consistent with the applicant having attended services in detention for a period of three months, but not consistent with a claimed “active interest” in Christianity since childhood and the maintenance of such faith by consideration of religious material obtained over the internet for the last four years or so. 

15. Having regard to all of these considerations, the Tribunal did not accept that the applicant, his mother and siblings were members of a Family Church in China, that his mother and a cousin were arrested prior to his departure, that his mother and a younger brother were arrested in 2011 or that the applicant would be “adversely regarded” because of his family background in China, any “hypothetical contact” with members of an underground church or any religious activities by him and his family before or after his departure.  It did not accept that the applicant was “genuinely” a Christian. 

16. Insofar as the applicant claimed he may face financial and housing difficulties on return to China because he did not know where his family was, the Tribunal found not only that there was nothing to suggest that such difficulties would be serious enough to amount to persecution, but also that it did not consider that any such difficulties would arise for a Convention reason. 

17. The Tribunal considered the applicant’s activities in attending religious services in Australia and accepting baptism in March 2012, but found that such conduct should be disregarded pursuant to s.91R(3) of the Migration Act.

18. In these circumstances the Tribunal found “no reason to believe” that if the applicant were to return to China he would “seek to involve himself in the activities of any unregistered Christian church”.  It found that there was no real chance that he would come to adverse attention as a result of anything he might do on return to China.  It concluded that he did not have a well-founded fear of persecution in China. 

19. The Tribunal also considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Migration Act. It observed that in that context it must not disregard the applicant’s conduct in attending Christian church services in the detention centre and accepting baptism, but was of the view that its findings regarding the applicant’s motivation for that conduct (that is that it was not satisfied it was engaged in otherwise than for the purpose of strengthening his claims to be a refugee) remained relevant.

20. The Tribunal concluded that having regard to its findings that the applicant was not a genuine Christian, that the events he claimed took place in China did not take place and that his only motivation for attending Christian services and being baptised was to strengthen his claims for protection it was satisfied that he would not be motivated to associate himself with any underground Christian church in China.  Given the absence of any adverse attention because of any prior association or association by his family with an underground Christian church the Tribunal was satisfied there was no reason the applicant would come to the adverse attention of the Chinese authorities for any reason relating to religion and therefore face harm for such a reason.  It was of the view there were no substantial reasons for believing there was a real risk he would suffer significant harm.  The Tribunal affirmed the decision of the delegate. 

21. The applicant sought review by application filed in this court on 29 May 2012.  The application contains three generally expressed and unparticularised claims.  Before turning to those claims I note that in the accompanying affidavit the applicant claimed to face persecution by the Chinese authorities if he returned.  Such a claim seeks impermissible merits review. 

22. The first ground in the application generally asserts jurisdictional error.  Such a broad and unparticularised assertion does not establish jurisdictional error.  I take it to be intended to rely on the second and third grounds, the first of which is denial of natural justice.  The applicant claimed that he did not agree with the decision of the Tribunal. 

23. The applicant did not elaborate on his claims in oral submissions.  However when asked about his claims of denial of natural justice he said that the Tribunal did not consider what he had said.  Insofar as this can be seen as a contention that the Tribunal failed to have regard to the applicant’s claims or to any integers of the applicant’s claims, that is not made out on the evidence before the Court.  The Tribunal set out in detail the applicant’s written and oral claims made at various stages.  It summarised its understanding of the applicant’s claims at the hearing and the applicant confirmed the accuracy of that summary.

24. It has not been established that the Tribunal failed to consider any integer of the applicant’s claims. 

25. Insofar as the applicant intended to contend that the Tribunal should have believed his claims that seeks impermissible merits review. Moreover, as submitted for the first respondent, there is nothing in the material before the Court to support any conclusion or even suggestion that the Tribunal failed to comply with its procedural fairness obligations in Division 4 of Part 7 of the Migration Act (and see s.422B of the Act).

26. In particular, the applicant was invited to and attended a hearing. He was given the opportunity to present evidence and arguments in relation to the dispositive issues in the review. The Tribunal raised issues of concern with the applicant. It had regard to his explanations in that respect. The hearing occurred in a context in which the delegate had not been satisfied that the applicant was a practising Christian. Thus the entire foundation of the applicant’s claims had been put in issue and the Tribunal traversed all issues of concern at the hearing. Moreover, there is nothing to indicate that there was any information which enlivened the Tribunal’s obligations under s.424A of the Migration Act.

27. It has not been established that there was a denial of natural justice on the material before the Court.

28. I note that while it is not clear that this was intended by the applicant, insofar as there is any suggestion that the claim that the Tribunal did not consider what the applicant had said is such as to give rise to either an apprehension of bias or actual bias that is not made out.

29. First, as a factual matter there is nothing to support any claim that the Tribunal did not consider the oral evidence of the applicant either to the delegate or before the Tribunal.  This is not a case in which adverse findings of the Tribunal are such as to give rise to an apprehension of bias.  Nor is it a case in which actual bias is established having regard to the seriousness of such an allegation and the need to allege actual bias.  There is simply nothing in the material before the Court to support a claim of actual or apprehended bias (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28).

30. Ground two is not made out.

31. Ground three is an allegation that the Tribunal “[f]ail[ed] to take into account very relevant facts of the matter”.  As indicated, insofar as the applicant contends that the Tribunal failed to consider any aspects of his claims, this is not made out on the material before the Court.  He did not elaborate on this contention in oral submissions.  There is nothing in the material before the Court to support any contention that the Tribunal erred by failing to have regard to relevant considerations, by failing to apply the law correctly or in any other way.

32. Ground three is not made out. 

33. As no jurisdictional error has been established the application must be dismissed.

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and there is nothing in the circumstances of the present case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  16 January 2013