SZROW v Minister for Immigration

[2013] FMCA 219

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZROW v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 219

MIGRATION – Review of decision of RRT – some comments upon the manner in which the Tribunal dealt with complementary protection.

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(3), 424AA

Applicant: SZROW

First Respondent: MINISTER FOR IMMIGRATION &  CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1376 of 2012

Judgment of: Raphael FM

Hearing date: 13 March 2013

Date of Last Submission: 13 March 2013

Delivered at: Sydney

Delivered on: 13 March 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1376 of 2012

SZROW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who came to Australia on a student (Subclass 571) visa on or about 23 December 2007.  She stopped studying around the second time she was due to pay tuition fees, at the beginning of September 2008.  She says that she stopped studying because her family could not afford to pay the fees any more.  She remained in Australia where, on 8 August 2011, she applied for a protection (Class XA) visa.  A delegate of the Minister refused to grant that protection visa on 31 January 2012.  The applicant sought review of that decision from the Refugee Review Tribunal on or about 29 February 2012.  The Tribunal held a hearing at which the applicant attended.  On 30 May the Tribunal determined to affirm the decision under review.

2. The grounds upon which the applicant claimed that she was a person to whom Australia owed protection obligations was the convention one of religion.  She claimed that she was a member of a local church in China and had been brought up within that church as a Christian.  She told that her mother had been arrested and detained three times for her activities within that local church.  The first time was when the applicant was three years old.  The second time was in 2005 when the mother was detained for three months and it was this that determined that the family should obtain for her a student visa.  The third time her mother was arrested was in July 2011 when the home was searched and the police found Christian materials that the applicant had sent to her mother from Australia.  The applicant claimed that an arrest warrant had been issued for her in China requiring her to return by 20 October 2011.  This was received by her grandmother on 2 August 2011.

3. The applicant attended a local church in Sydney and provided evidence that she had been attending for two weeks prior to the date of the letter which was 8 October 2011.  She also produced to the Tribunal a letter from the Qinqian Assembly of God in Fuqing City, Fujian Province.  The translation of this letter is found at [CB 52].  The letter stated:

   “Sister applicant lives in B Village, S Town, Fuqing City.  Baptised in China, she was faithful to Lord, participated in church activities regularly, and lived a life directed by God with her mother and siblings.  Later she went abroad for further education.”

   The document referred to three persons from the Assembly of God with their names and telephone numbers.

4. The Tribunal questioned the applicant upon her evidence and upon her knowledge of the local church and Christianity. It put to her the concerns it had about some inconsistencies between her earlier statements and those made to the Tribunal. It taxed the applicant upon why she may have sent documentation to her mother from Australia, knowing that her mother had already been in trouble with the police on two previous occasions, and that if this material was found it was likely to cause her many further problems. At [61] [CB 136] the Tribunal put to the applicant those matters which might be the reason or part of the reason for affirming the decision in the manner prescribed by s.424AA of the Migration Act 1958 (Cth)[1].  The applicant responded to the information at the hearing.

   [1] “Act”

5. The Tribunal questioned the applicant about her attendance at services in Australia. The Tribunal pointed out to the applicant that the evidence that she had produced only indicated she had recently taken up attendance at a local church. The applicant responded that this was not in fact the case and that she had gone to other churches but was unable to recall exactly where they were. The Tribunal explained to the applicant the reason for asking questions of this nature, in particular the possibility that he would have to make a finding under s.91R(3) of the Act.

6. In its findings and reasons the Tribunal noted that it had serious concerns about the applicant’s claim to be a member of the local church:

   “[87]In particular, the Tribunal notes that she did not clearly indicate that she was claiming to be a Local Church member until after the department interview when she provided a letter by the Local Church in Sydney to the department.  Up until the department interview, the only reference to the Local Church was that she had sent material to her mother which included material by a witness.”[CB 143]

   The Tribunal indicated that it would have expected her to specify that she was a local church member at an earlier stage.

7. The Tribunal considered the letter that the applicant had provided from the Qinqian Assembly of God.  It stated:

   [87]The Tribunal has had regard to a letter from the Qinqian Assembly of God and Jiaxing Assembly of God.  However, there is no indication on this letter that it is a Local Church and it provides only general information, without dates, stating that the applicant was baptised in China, and was faithful to the Lord and attended church activities regularly and lived a life directed by God.  The Tribunal thus places no weight on this letter as evidence that she was a local church member in China.”[CB 143]

8. The Tribunal had other concerns, which it explained in its findings and reasons, about the applicant’s credibility and it considered whether or not it should apply the provisions of s.91R(3) to her attendance at church in Australia. It came to the conclusion that it could not accept the applicant’s statements about why she had not attended the local church before 2011 and stated:

   “[89]The Tribunal accepts that she has attended a Local Church in Australia since late 2011 and has been attending gatherings at home since earlier this year, but given its concerns about her claims to be a Local Church member, the Tribunal does not accept that the applicant engaged in this conduct otherwise and for the purpose of strengthening her claim to be a refugee.  The Tribunal has thus disregarded her conduct in attending church and gatherings, and the related gaining of knowledge, in Australia in assessing whether or not she has a well-founded fear of being persecuted for a Convention reason if she returns to China.” [CB 144]

9. The Tribunal gave reasons for not accepting the applicant’s claims concerning her mother’s arrest and detention and did not accept as credible that she would have sent Christian material to her mother which would have resulted in the mother’s arrest and detention.  The Tribunal also considered the delay in making an application for protection visa.  It noted that it had concerns as to why she waited until August 2011 to make the application if there was an objective basis for her claimed fear:

   “[92]The Tribunal has considered her claim that she did not wish to apply on the basis of her Christian beliefs and wanted to remain here as a student but given that she had ceased studying because of lack of funds since at least the beginning of 2009, the Tribunal does not accept that she failed to apply earlier for that reason.  The Tribunal accepts that the applicant had a student visa which did not cease until 29 March 2011 which may have influenced her decision not to apply earlier than that date but noticed that she still waited for four months after that.”[CB 145]

10. The Tribunal concluded that there was not a real chance that the applicant would be persecuted for reasons of her real or perceived religious beliefs if she returned to China now or in the reasonably foreseeable future.

11. At [16-18] [CB 126] the Tribunal sets out its understanding of the complementary protection criterion which it was required to take into account.  At [95] [CB 145] it states:

    “[95]The Tribunal has also considered whether the applicant meets the alternative criterion in s.36(2)(aa). However, on the information before it, the Tribunal finds that there are not substantial grounds for believing that, as a necessary foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.” [CB 145]

12. On 25 June 2012 the applicant filed with this court an application for review of the decision of the Tribunal.  There were three grounds of application.  The first was:

    “[H]owever, the RRT places no weight on the letter only because it is without dates.  RRT didn’t consider my evidence sufficiently and held prejudice against me as RRT didn’t properly examine the letter.  The intrinsic value of the contents of this letter should not be ignored simply because of its omission of the dates ..”.

13. I have reproduced here at [3] and [7] both the content of the letter and the Tribunal’s views upon it.  The letter was actually dated and what the applicant is referring to is that there are no dates of her baptism or participation in the church.  What the Tribunal was saying was not that the document failed some formal test but that the absence of dates did not assist it to be satisfied that the applicant had the connection with the church that she claimed.  The letter did not even say that she was baptised in that church. 

14. Before me today the applicant complained that the Tribunal should have taken up with her its concerns about the letter, and she could have explained them away, but that is asking the Tribunal to comment upon its thought processes which does not provide grounds for review.  It is for an applicant to satisfy the Minister that she is a person to whom Australia owes protection obligations and if the Minister cannot come to that state of satisfaction without additional material then the applicant will not succeed.  The court does not have the benefit of a transcript of the hearing and so is unable to say whether or not the Tribunal actually questioned the applicant with reference to the letter and what that questioning was, but again, this is something which the applicant should have produced if she wished to make her claim with any more force.

15. The second ground also complains that the Tribunal did not raise with the applicant the doubts that it had concerning her story of sending materials to her mother.  This is not actually the case because at [60] [CB 136] there is reference to the Tribunal discussing those concerns with the applicant.  The applicant says that the Tribunal did not give her a chance to prepare relevant evidence to prove that she did send the material.  However, there is no evidence that the applicant asked for such accounts and it was refused.  There is certainly no reference to such a request being made in the decision record.

16. The third ground was:

    “The RRT didn’t consider the risk that I might be persecuted if I were returned to China. RRT therefore breached its obligation to consider the alternative criterion of Migration Act. There was no reasoning or evidence that RRT had considered the alternative criterion other than Conventional definition of “refugee”.

17. There can be no doubt that the Tribunal did consider, in some considerable detail, whether the applicant might be persecuted should she return to China.  That is the whole thrust of the Tribunal’s decision.  I take this ground to be an attack upon the Tribunal’s shorthand way of dealing with the complementary protection criterion upon which it came to a conclusion at [95][CB 145] already extracted.

18. The Court will imply, from the way in which this decision is written, that the Tribunal concluded that if this applicant was not under any risk from her claimed activity of church membership under the Refugees Convention she would not be under any risk for that reason under the criterion contained in s.36(2)(aa).

19. I have already expressed the view in this court that it would be more helpful if Tribunal members were more expansive in their dealings with complementary protection, not because the way in which it was dealt with strikes me as one to which the label of jurisdictional error could be applied, but because its very brevity raises concerns in the minds of applicants.  I repeat my exhortation that fuller explanations could be provided.

20. The applicant appeared before me today.  The matters that she referred to were those that were contained in her grounds of application.  As with many applicants she sought to persuade me as to the merits of her claim which it is not in the power of this court to consider.  I am of the view that the applicant has not been able to persuade me that the matters raised as grounds of application evidence any jurisdictional error in the manner in which the Tribunal reached its decision and I must dismiss the application and order that the applicant pay the first respondent’s costs which are assessed in the sum of $4,800.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  28 March 2013