SZTLJ v Minister for Immigration

[2015] FCCA 1253

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLJ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1253

Catchwords:
MIGRATION – Review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal considered applicant’s case fairly – whether Tribunal made any error in relying on country information – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: SZTLJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2652 of 2013

Judgment of: Judge Manousaridis

Hearing date: 29 August 2014

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms N Senanayake of DLA Piper Australia

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2652 of 2013

SZTLJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a national of the People’s Republic of China, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa.

Claims for protection

1. The applicant claimed she was a Christian since she was a child, and, with her family attended services of a church.[1] In 2006 police disrupted a church meeting the applicant was attending, but those present hid the bible, and denied they were participating in a church meeting.[2] The police warned those present that church meetings and superstitions were prohibited, and that they would be sent to a detention centre if they were caught.[3]

   [1] CB56

   [2] CB57

   [3] CB57

2. Later in 2006, the police raided another church meeting at which the applicant was present.[4] The applicant’s father and twelve others were arrested, but not the applicant; she was in the bathroom “because of the pipe maintenance”.[5] The applicant’s father was detained for fifteen days when he was released on the applicant’s sister paying a fine of 3,000RMB.[6] In the meantime, the police searched the applicant’s home and threatened the applicant and her father that they would be arrested if they did not become law-abiding citizens.[7] The applicant’s father considered the situation to be dangerous and decided to send the applicant to Australia.[8]

   [4] CB58

   [5] CB58

   [6] CB58

   [7] CB58

   [8] CB58

3. In 2012, the applicant’s brother informed her that her sister and father were arrested at a church meeting.[9] Her father was sentenced to three months detention, and her sister was detained for fifteen days.[10] The applicant’s brother told her not to come back.[11]

   [9] CB59

   [10] CB59

   [11] CB59

Tribunal’s reasons

1. The Tribunal was “not satisfied as to the credibility of the Applicant’s claims to have been involved in a home-based church in her village” in China.[12] The Tribunal found that “her alleged attendance at clandestine gatherings of a house church in her village contains a number of implausibilities and inconsistencies”.[13] These included the following:

   a)First, in evidence given before the Tribunal, the applicant said that, in addition to church members meeting in the homes of “different brothers and sisters”, they also met at the place where the priest was located.[14] At that place, there was space for the priest, many chairs, a stage, and a cross.[15] In addition, the applicant provided a testimonial purportedly signed by the priest.[16] The Tribunal was not satisfied it was plausible that a church gathering which had been raided a number of times nevertheless could congregate in “the obviously public circumstances of a fixed church building in the same village with a priest presiding”.[17] The Tribunal also found it anomalous that the priest of an allegedly secret and informal church would nevertheless provide a supporting letter on printed letterhead displaying the name of his church.[18]

   b)Second, the applicant attended a particular church in Sydney which had the precise denomination as the church in which she claimed to have worshipped in China, but claimed that she became aware of the church in Sydney because one of her housemates attended the church.[19] The Tribunal found it implausible that, through the simple chance of the applicant’s housemate’s particular religious persuasion, the applicant was led to worship in a church in Australia that bore the precise denomination of the church she claimed she attended in China.[20]

   c)Third, at the hearing before the Tribunal, the applicant stated that her father decided to send her to study in Australia because things were difficult in China, and there was no religious freedom.[21] The Tribunal considered this to be different to the reason she gave in her application for a Protection visa for leaving China, namely, the arrest and detention of her father and the police searching their house and threatening them with arrest.[22]

   d)Fourth, the Tribunal found it difficult to believe the applicant’s father decided that among her siblings, the applicant would be the person who needed to be protected, given that the applicant was the least-religiously inclined among her sisters.[23] In that regard, the applicant had given evidence that her two sisters had been baptised in China, whereas, the applicant was not baptised, and that, for a certain period, the applicant ceased believing in Christianity.[24]

   e)Fifth, the applicant demonstrated “obvious ignorance of the provenance” of what purported to be an arrest warrant issued against her father, which the applicant submitted to the Tribunal, and yet demonstrated a readiness to alter her evidence when asked why the document she had submitted bore no seals.[25]

   [12] CB150, [18]

   [13] CB150, [19]

   [14] CB147, fifth dot point.

   [15] CB147, fifth dot point.

   [16] CB73-74; CB131-132

   [17] CB150, [19], first dot point.

   [18] CB150, [19], first dot point.

   [19] CB147, sixth dot point; CB148, first dot point.

   [20] CB150, [19], second dot point.

   [21] CB146, [14], first dot point; CB151, first dot point.

   [22] CB151, first dot point.

   [23] CB151, second dot point.

   [24] CB146, [14], third dot point.

   [25] CB151, third dot point. The arrest warrant is at CB75-76.

2. Another reason the Tribunal doubted the credibility of the applicant’s claim to fear harm in China was the applicant’s delay of over five years in lodging her application for a Protection visa. The Tribunal did not accept the applicant’s explanation that she was afraid of rejection.[26]

   [26] CB152, [20]

3. For these reasons, including what the Tribunal considered to be the applicant’s “brief and un-particularised nature of her account of her alleged religious activities in China” the Tribunal was not satisfied the applicant was involved with a home-based Christian church in her village, as she claimed; nor was the Tribunal satisfied her family members belonged to such a church or that she was warned against participating in such activity or that the applicant’s father and sister were ever arrested and detained because of any such activity.[27]

   [27] CB152, [21]

4. The Tribunal, however, accepted that the applicant attended church in Australia since 2008, that she was baptised at that church, and that her activities in that church reflected an interest in Christianity.[28] The Tribunal, however, on the basis of country information, concluded that the applicant would be able to continue to attend home-based Christian gatherings without facing a real chance of serious harm at the hands of Chinese authorities.[29]

[28] CB152, [22]-[23]

[29] CB152-153, [24]-[25]

Grounds of review

1. The applicant, who is not legally represented, raises three grounds of review. The applicant made no submissions at the hearing before me in relation to any of the grounds contained in the application.

2. The first ground of review is as follows:

   The Refugee Review Tribunal (the RRT) did not examine my case fairly. My evidence was consistent and my speaking from genuine, first-hand experience of the circumstances I described. For example, I provided a supporting letter on printed letterhead displaying the name of my church. This document was confident [sic] and treated carefully between the issuer and me. But the RRT placed no weight on this document as supporting my claims.

3. This ground raises a general complaint, and a specific complaint. The general complaint is that the Tribunal did not examine the applicant’s case fairly. There is nothing in the Tribunal’s reasons or in the material before me that indicates the Tribunal did not consider the applicant’s claims fairly. The Tribunal identified the applicant’s claims, questioned the applicant during the hearing, and raised with the applicant difficulties the Tribunal had with those claims.

4. The specific complaint is that the Tribunal placed no weight on the letter of support purportedly given by the priest of the church her family attended in China. The reasons the Tribunal placed no weight on that document was it considered it incongruous that a priest of what was claimed to be a church that was illegal would issue a letter on the letterhead of such a church. It was reasonably open to the Tribunal to view the letter to be incongruous for that reason, and not to place any weight on the document.

5. The applicant, therefore, cannot succeed on the first ground.

6. The second ground is that the Tribunal used “inaccurate country information”, and that the Tribunal’s findings based on that country information “did not reflect the facts”. In support of that claim, the ground sets out a number of asserted facts which, apparently, are based on a publication or publications by the Committee for the Investigation on Persecution of Religion in China.

7. This ground does not disclose any jurisdictional error by the Tribunal. It is a matter for the Tribunal, not for this Court, to determine, as part of its fact-finding process, whether country information is accurate, and what weight it should give to such country information.[30] The second ground, therefore, also fails.

   [30] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]

8. The third ground of review is that the Tribunal did as follows:

   The RRT did not carefully make an alternative criterion in s.36(2)(aa) of the [Migration] Act [1958 (Cth)]. I had involvement with a Christian church while I was in China. From the evidence I provided and the country information, it was reasonable to believe I would suffer harm in China. There were substantial grounds to believe that, as a necessary and foreseeable consequence of my being removed from Australia to China, there would be a real risk that I would suffer harm which would amount to significant harm in terms of s.36(2)(aa).

9. This ground does not disclose any jurisdictional error. It only expresses disagreement with the Tribunal’s conclusions. It was reasonably open to the Tribunal to conclude as it did on the basis of the matters and reasons on which the Tribunal relied. The applicant, therefore, cannot make out the third ground.

Conclusion and disposition

1. The applicant has failed on each of the grounds she relies. I propose, therefore, to dismiss the application and order that the applicant pay the Minister’s costs.

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

Associate: 

Date:  15 May 2015