SZTGU v Minister for Immigration

[2014] FCCA 947

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 947

Catchwords:
MIGRATION – Application for review of a Refugee Review Tribunal (RRT) decision – whether RRT considered aspects of applicant’s claims – whether RRT imposed on applicant an onus of proof – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Randhawa v Minister for Immigration and Ethnic Affairs (1994) 124 ALR 265

Applicant: SZTGU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2163 of 2013

Judgment of: Judge Manousaridis

Hearing date: 7 February 2014

Delivered at: Sydney

Delivered on: 9 May 2014

REPRESENTATION

Applicant appeared in person.

Solicitors for the Respondents: Ms Griffin

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2163 of 2013

SZTGU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In an application for review before the second respondent (Tribunal), the applicant, a national of the People’s Republic of China, claimed she feared persecution if she returned to China because she held Christian beliefs.

2. The Tribunal found the applicant was not a credible witness, and, for that reason, it did not accept the applicant’s claim that she feared, or had a well-founded fear of persecution in China. The Tribunal, therefore, affirmed the decision of the delegate of the first respondent (Minister) refusing to grant to the applicant a protection visa.

3. In this Court, the applicant, who is not legally represented, claims the Tribunal made four jurisdictional errors. Before I consider the applicant’s claims, it will be necessary to identify with some precision the claims for protection that were before the Tribunal, and the reasons the Tribunal did not accept those claims.

Applicant’s claims and evidence before the Tribunal

1. In her application for a protection visa, the applicant asserted the following:

   a)Sometime before 2002, the applicant’s parents became Christians and attended house church gatherings in Fujian Province.[1]

   b)In 2002 the police captured and interrogated the applicant’s parents. They were detained for two weeks. After their release, the applicant’s parents were dismissed from their employment and were required to attend political classes.[2]

   c)The applicant’s parents left Fujian Province to work in another province, leaving the applicant and her brother in the care of the applicant’s grandmother.[3]

   d)In 2005, when the applicant was 16 years of age, she began to attend house church gatherings on Sundays with about fifteen Brothers and Sisters.[4]

   e)On 2 September 2006, during one such gathering, police attended and searched the house for illegal religious books, and took the applicant and her fellow worshippers to the police station. The applicant was there questioned for four to five hours, and she was forced to place her fingerprint on a written statement the police presented to her that she would not attend any further church gatherings.[5] The applicant was also fined RMB1,000 which was paid by the applicant’s grandmother.[6]

   f)The applicant’s school was informed of what occurred to the applicant. The applicant was then marked as “special” and had a bad time at school.[7]

   g)After her parents heard what occurred to the applicant, they worried about her, and attempted to obtain a student visa for the applicant.[8] In April 2008 the applicant came to Australia.[9]

   h)When in Australia, the applicant attended church. In February 2011 she mailed some religious magazines to a Sister with whom she had worshipped in China. The police discovered the parcel and then detained and interrogated the Sister.[10]

   i)The applicant feared that if she returned to China she will be placed in a detention centre and tortured.[11]

   [1] CB16; CB82, [3]

   [2] CB16; CB82, [3]

   [3] CB16, CB82, [3]

   [4] CB16, CB82, [3]

   [5] CB17, CB82, [3]

   [6] CB17, CB82, [3]

   [7] CB17; CB83, [3]

   [8] CB17; CB83, [3]

   [9] CB17; CB83, [3]

   [10] CB17; CB83, [3]

   [11] CB17; CB83, [3]

2. Before the Tribunal, the applicant answered questions about:

   a)her involvement with the local church in China, the day her parents were allegedly arrested, and the nature of the activities undertaken at house church gatherings;[12]

   [12] CB83, [7]

   b)whether and how the applicant evangelised in China;[13]

   [13] CB84, [9]

   c)whether the applicant encountered any problems after her release in 2006;[14]

   [14] CB84, [12]

   d)evidence the Tribunal suggested was contradictory concerning the circumstances in which the applicant says she obtained a passport;[15]

   e)whether the applicant encountered difficulties when leaving China;[16]

   f)the suggestion put by the Tribunal that the applicant’s not leaving China until 2008 indicated she was not a person of adverse interest in China;[17]

   g)when the applicant first attended church in Australia;[18]

   h)whether the applicant attended Christian gatherings between 2008 and 2010,[19] and details of her church attendance in 2010 and after;[20]

   i)whether the applicant was aware of what was “prayer-reading” or “mingling”,[21] or “the tripartite notion of human beings”;[22]

   j)when the applicant’s visa had expired, and why the applicant sent to China religious materials after her visa had expired;[23]

   k)why the applicant delayed applying for a protection visa;[24]

   l)the content of the materials the applicant said she sent to China,[25] and from whom and from where the applicant obtained that material;[26] and

   m)why the applicant could not relocate within China if the difficulties she experienced were with local authorities.[27]

   [15] CB84, [14]

   [16] CB85, [16]

   [17] CB85, [17]

   [18] CB85, [18]

   [19] CB85, [19]

   [20] CB86, [21]

   [21] CB86, [27]

   [22] CB87, [28]

   [23] CB87, [29]

   [24] CB87, [32]

   [25] CB87, [33]-[34]

   [26] CB88, [35]

   [27] CB88, [38]

Tribunal’s findings and reasons

1. The Tribunal found that the applicant was not a credible witness.[28] That finding was based on the Tribunal’s conclusion that “the applicant provided contradictory, incomplete and vague evidence to the Tribunal. In addition the applicant’s evidence was contradicted by credible country origin information”.[29]

   [28] CB89, [46]

   [29] CB89, [46]

2. The Tribunal identified two examples of what it considered to be the applicant’s contradictory evidence. The first was the applicant’s initially stating that in 2008 to 2010 she attended church gatherings in her home with the person with whom she shared accommodation, but then said she attended local church gatherings in Blacktown.[30] The second example is the applicant’s initially stating she had difficulties leaving China but later stating she did not have difficulties.[31]

   [30] CB89, [47]

   [31] CB89, [48]

3. The Tribunal also gave two examples of what it found to be vague evidence. The first related to evidence the applicant gave about where she obtained the religious materials she claimed she sent to China from Australia.[32] The second example was the applicant’s inability to give details about “prayer-reading or mingling” and “the tripartite notion of human being”, being beliefs and practices which country information indicated was taught in local churches in China.[33]

   [32] CB90, [50]

   [33] CB90, [52]-[53]

4. Based on these findings, the Tribunal was not satisfied the applicant ever participated in local church activities in China, or that the applicant’s parents had attended such activities, or that the applicant had come to the attention of authorities in China due to her mailing religious materials to China.[34] Nor was the Tribunal satisfied the applicant had difficulties leaving China,[35] or that the applicant had contact with any informal or formal church groups in Australia.[36]

   [34] CB90, [55]

   [35] CB90, [55]

   [36] CB91, [56]

5. For these reasons, the Tribunal concluded the applicant did not have a well-founded fear of persecution due to her involvement with the local church in China.[37] The Tribunal also concluded it was not satisfied that the applicant “is a person in respect of whom Australia has protection obligations under s.36(2)(aa)”.[38]

   [37] CB90, [55]

   [38] CB91, [58]

Ground 1 – failure to properly review case

1. The application contains four grounds of review. The applicant, however, did not at the hearing make any submissions in support of any of these grounds.

2. The first ground of review is:

   The Tribunal did not fairly review my case. The Tribunal selected to ignore the evidence that I had obtained the religious materials allegedly sent to China in February 2011. I collected it with friends and on a daily basis. The detail of collection of religious materials has been provided to the Tribunal.

3. As framed, this ground does not identify the evidence the applicant alleges the Tribunal ignored. Nor does the ground identify the “detail of collection of religious materials” the applicant says she provided to the Tribunal. In the absence of any such details, it is impossible to find the Tribunal ignored evidence or information in relation to the places or the persons from which or from whom the applicant obtained the religious materials she sent to China.

4. In any event, to the extent the applicant does describe the information in ground 1, it reflects the Tribunal’s description of the information the applicant provided to the Tribunal. And the Tribunal’s reasons indicate that it asked the applicant to provide further details which the applicant was unable to provide:[39]

   A further example [of the applicant’s vague evidence] is when the applicant was asked where she had obtained the materials that she sent to China. The applicant initially said that she collected the material with friends. When the Tribunal raised that the applicant had provided very limited detail, the applicant said she collected the material on a daily basis. Asked where she had obtained the materials, the applicant said from outside. Asked to provide further details, the applicant said she could not remember.

   [39] CB90, [50]

5. Further, the applicant’s second ground of review, which I set out below, appears to accept that the information the applicant provided to the Tribunal concerning the religious materials lacked detail, and that it was unfair of the Tribunal to require the applicant to provide additional material.

6. Ground 1, therefore, has not been made out.

Ground 2 – incorrect application of onus of proof

1. The second ground of review set out in the application is as follows:

   The Tribunal ignored the onus of proof is not appropriate to administrative inquiries and decision-making. I was fearful of returning to China because I had sent religious materials to China in February 2011 and they had been intercepted by the authorities. Since it was relatively a long time ago, I had limited information regarding what the material was. Also, it had been several years since the alleged events occurred, it is not fair that I could provide a greater level of detail regarding what the materials were and how I had obtained them.

2. The first sentence, if made out, would disclose jurisdictional error. However, the ground cannot be made out. The Tribunal set out the claim the applicant made in her application for a protection visa, asked the applicant questions in relation to the elements of the claim she made, and, on the basis of the answers given by the applicant, the Tribunal concluded it was not satisfied the applicant was a witness of truth. The Tribunal was not required to uncritically accept the applicant’s evidence.[40] And on the material that was before the Tribunal, it was open to the Tribunal not to accept the applicant’s evidence.

   [40] Randhawa v Minister for Immigration and Ethnic Affairs (1994) 124 ALR 265 at 278 (FCA, Black CJ and Beaumont and Whitlam JJ), where Beaumont J said: “Proof of persecution in the context of an application for refugee status is a matter of some complexity. As Grahl-Madsen has noted (The Status of Refugees in International Law at 145-6), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf. Gaudron J in Chan at 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state "should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with". This should not, however, lead to "an uncritical acceptance of any and all allegations made by suppliants".”

3. The balance of the second ground does not raise any arguable case of jurisdictional error. It takes issue with the conclusions the Tribunal arrived at on the basis of its finding that the applicant’s evidence about the places or persons from which the applicant obtained the religious materials she sent to China was vague. Whether or not the applicant’s evidence was vague, and the conclusions that should be drawn from finding the applicant’s evidence was vague, were matters for the Tribunal alone to consider and determine.

4. Ground 2, therefore, also has not been made out.

Ground 3 – relocation

1. The third ground of review set out in the application is as follows:

   The Tribunal under estimated the difficult [sic] to relocate in China. I could not relocate within China as in China people were ruled by Hukou and not allowed to move their family freely. Although my parents had left the area long time ago, it was due to the policy at that time.

2. As correctly submitted by the Minister, although the Tribunal asked the applicant about the possibility of relocation,[41] the Tribunal made no finding about relocation, and the Tribunal’s decision to affirm the delegate’s decision was not based on the applicant’s being able to relocate within China. The occasion for considering whether it was reasonable for the applicant to relocate did not arise because the Tribunal was not satisfied the applicant had a well-founded fear of persecution if she were to return to Fujian Province.

   [41] CB88, [38]

3. The third ground of review, therefore, also is not made out.

Ground 4 – complementary protection

1. The fourth ground of review set out in the application is as follows:

   The Tribunal failed to make a fair ‘complementary protection’ grounds test. My family is of interest to the Chinese authorities for religion belief. I would face persecution upon return to China. There are substantial grounds for believing that, there is a risk that I will suffer significant harm if I removed [sic] from Australia to China

2. The Tribunal devoted one sentence, and a conclusory sentence at that, as to whether the applicant’s claim satisfied s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). In my opinion, however, that discloses no error. The only material before the Tribunal which could have reasonably formed the basis of a claim for protection under s.36(2)(aa) of the Act was the evidence the applicant gave which was relevant to a claim for protection under s.36(2)(a) of the Act. Because the Tribunal rejected the applicant’s evidence, there was no other evidence or material before the Tribunal on the basis of which it would have been open for the Tribunal to find the applicant did satisfy s.36(2)(aa) of the Act.

3. Ground 4 otherwise only claims the Tribunal was incorrect to find that the applicant’s family was of no interest to the authorities in China, and to conclude there were no substantial grounds for believing the applicant faced a real risk of significant harm if she is removed from Australia to China. These are questions that were within the jurisdiction of the Tribunal alone to determine.

4. Ground 4, therefore, also has not been made out.

Conclusions and disposition

1. The applicant has failed to show the Tribunal made any jurisdictional error. I therefore propose to dismiss the application, and order the applicant to pay the Minister’s costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 May 2014