SZUDZ v Minister for Immigration

[2015] FCCA 288

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 288

Catchwords:
MIGRATION – Refugee Review Tribunal – whether the RRT was biased – no matter of principle – application dismissed.

Legislation:  

Migration Act 1958

Applicant: SZUDZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 926 of 2014

Judgment of: Judge Street

Hearing date: 9 February 2015

Date of Last Submission: 9 February 2015

Delivered at: Sydney

Delivered on: 9 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr Spears

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant to pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 926 of 2014

SZUDZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the court’s jurisdiction under s.476 of the Migration Act1958 for a constitutional writ in respect of the decision of the Tribunal delivered on 11 March 2014, affirming a decision of the delegate refusing to grant the applicants Protection (Class XA) visas.  On 9 May 2012, the applicants applied for Protection visas which were refused by the delegate on 28 November 2012.  On 4 December 2012, the applicants applied for a review of the delegate’s decision and attended a hearing, initially on 17 October 2013, which was resumed on 16 January 2014.

2. The application for review had an attachment identifying the alleged grounds:

   1, I have been actively involved in Mormon church activities in Australia. My action and religious performance has been evidenced by church elder with reference.

   2, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.

   3, The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observe [sic]

3. The content in the attachment to the application does not properly identify any ground of jurisdictional error, either in the conduct of the review or in the reasons for the decision by the Tribunal.  Their bare allegation of bias in the third alleged ground is unsupported by any evidence and there is nothing on the material before the Court to identify that anything other than an impartial and independent mind was brought by the Tribunal below to the determination of the applicants’ claims.

4. In that regard, the Tribunal engaged in a careful identification of the applicants’ claims setting out at length the circumstances relating to the apprehension concerning the pursuit by one of the applicants, of the Mormon religion, concern in relation to the children born out of wedlock and potential discrimination and hardship due to one of the applicants being an unmarried mother and the alleged fear due to one of the applicant’s Mormon religion.

5. The Tribunal carefully identified the criteria for a protection visa of the kind applied for and addressed in detail why the delegate’s decision under review should be affirmed.  The Tribunal summarised the claims of the applicant and the assertions that Mormons are regarded as a cult in China and the assertions relating to her aunt and her fears of persecution and punishment from the Family Planning Office and that the applicant would not give up her faith.

6. The Tribunal summarised that the delegate did not accept the applicant was raised by her aunt and that the delegate did not accept that the applicant sent her aunt information about the principles of the religion and found that the applicant lacked an understanding of the principles of Mormonism.  At the Tribunal hearing, it was identified when the applicant’s partner arrived in Australia, in comparison to when the applicant arrived and the study that she undertook, and the Tribunal identified the fears asserted by the applicant.

7. The tribunal clearly put particulars of the information it considered would be the reason for affirming the refusal to the applicant and relevantly noted:

   60. The applicant was asked to comment on the country condition information that indicated that the Church of Jesus Christ of Latter-day Saints does exist in the PRC, that temples exist and functions without serious impediments, although through an agreement with the PRC authorities and according to PRC law, Mormons in the PRC do not proselytise.  The applicant responded that the reality is very different to the country condition information and that Mormons are not allowed to spread special teachings.

   61. The applicant was asked what would prevent her from practicing Mormonism in the PRC and refraining from proselytising, and she responded that at church gatherings there is always proselytising and that this is not allowed by the government. 

   62. The applicant was asked to comment on the country information indicating that Mormons are required by their faith to obey the laws of the country that they are in. The applicant responded that if you are a true believer, then you must proselytise and that the agreement with the Chinese authorities must have been made to protect members of the church.

   63. The applicant was asked to comment on country information indicating that sources consulted were not aware of the persecution of members of the Mormon Church in the PRC. She indicated that she can only tell the Tribunal about her situation and that in her home town nothing has changed. 

   64. The applicant’s partner testified he is a Mormon. He started with the Mormon Church in February or March 2012.  He was not a Mormon in the PRC. After being blessed he was given the right to be baptised. He claims to be a priest of the Mormon Church.  When asked how he could become a priest after having been affiliated with the church for such a short time frame, he indicated that the Mormon Church always encourages people to do voluntary work and to spread the faith. When asked what his “priesthood” entailed, he indicated that he is the second man in charge of the service and that this involves being the master of ceremonies for Bible study and that he introduces speakers. When asked what training he had to do this, he indicated that he read the book of Mormon but did not take any courses but reads the Book at home.

8. The Tribunal identified what occurred at the second hearing and that the applicants remained unmarried with now a second child.  The partner identified his concerns in relation to the applicant and his family not recognising her and denying that any relationship exists. When the applicant’s partner was asked why, given country information on the situation of Mormons in the PRC regarding no information of serious mistreatment of Mormons he would be at risk, the Tribunal carefully addressed the claims advanced by the partner and provided time to provide any corroborating documentary evidence.

9. The Tribunal also carefully recorded the evidence given by the applicant and when the applicant was asked why she would continue to proselytise in the PRC given that the church has instructed its followers not to do so. The applicant indicated that one needs to obey the law, but according to Mormon beliefs if you do not evangelise you are not a good Christian.

10. The applicant identified that her partner had been assaulted in Strathfield and that his parents would not recognise their relationship.  The applicant has provided his certificates of Baptism from the Chinese Mormon Church in Sydney.

11. A list of medical receipts were provided by the applicant after the hearing and were considered by the Tribunal and the Tribunal then carefully set out the country condition information to which it regard.

12. At para.103 the Tribunal said:

    103. The Tribunal found the applicant displayed a superficial limited knowledge of Mormonism which had been rehearsed and memorised.  Even so, her testimony contained numerous errors.  The Tribunal finds that the applicant’s knowledge of Mormonism is not commensurate with that of an individual who’s a committed and whose mission in life is to evangelise with that of an individual who, due to the strength of her convictions, would come to the attention of the authorities in the PRC as a Mormon.  Given the applicant’s testimony and her level of knowledge of Mormonism, the Tribunal gives no weight to evidence from a Mormon Church in Australia in its assessment of the applicant being a genuine practising Mormon and that there is a real chance that due to the strength of her convictions she would come to the attention of the authorities and the PRC.  The Tribunal does not accept the applicant as a genuine practising Mormon who would come to the attention of the authorities in the PRC.

13. The Tribunal continued in its reasons:

    104. The Tribunal further notes that the applicant was able to depart China legally without hindrance. Accordingly, the Tribunal finds that the applicant’s evidence as to any harm faced in the PRC by her or her aunt or that she or her aunt faced difficulties in the PRC because of her Mormonism not to be credible. Given these factors and the Tribunal’s finding that the applicant is not a genuine practising Mormon, the Tribunal finds that there is no real chance the applicant will face persecution in the PRC for reasons of her religion.

    105. Given the Tribunal’s finding that the applicant is not a genuine practicing Mormon, it does not accept as credible that she faced any harm in the PRC for reasons of her religion. The claims by the applicant that she was briefly detained in the PRC for reasons of her Mormonism, or that she had to pay to depart the PRC as she did so legally without hindrance, or that she attended at least two Mormon gatherings in the PRC, or that she attended church in Australia, or that the authorities have any interest in her in the PRC for reasons of religion or that she is a Mormon. It is not satisfied that she has involved in any church activities in Australia or China which will now, or in the reasonably foreseeable future, attract the adverse interest of the PRC authorities. As the Tribunal has found that the applicant is not a genuine practicing Mormon who due to the strength if her convictions would come to the attention of the authorities in the PRC.

    106. The Tribunal does not believe that the applicant was detained. It notes the applicant’s ability to depart the PRC without apparent hindrance. The Tribunal finds that this claim is not credible. It further, having found that the applicant is not a Mormon, gives no weight to the statements in support of the applicant’s claims submitted by her at or after the hearing and gives claims made in these documents no weight in relation to the strength of her religious convictions.

    107. The Tribunal is not satisfied that the applicant will be targeted or mistreated by the authorities in China for being a Mormon, and notes the documentary evidence which indicates that sources indicate an absence of evidence of Mormons being mistreated in the PRC, and again notes that the applicant is not of nay interest to the authorities in the PRC. The Tribunal finds that there is not real chance that due to the strength of her religious convictions, the applicant would come to the adverse attention of the authorities in the PRC now or in the reasonably foreseeable future. Given that this is the central element of her claim, the Tribunal finds that there is insufficient credible evidence upon which to make a finding that the applicant is a Convention refugee for reasons of her religion.

    …

    109.  Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will be subjected to persecution by the authorities in China for reasons of religion.

14. The Tribunal turned to the application of generally applicable laws in China which were not, on their face, arbitrarily applied or selectively applied and the Tribunal said:

    112. …The Tribunal has formed the view that the imposition of a fine, and having to take certain steps to ensure the child is registered is not discrimination and neither is conduct which amounts to persecution for convention purposes.

15. In relation to the one-child policy, again the Tribunal identified the general application of laws that are not applied arbitrarily or selectively and that they were not enforced in a discriminatory way and were appropriate and adapted to achieving a legitimate object.  The Tribunal said:

    113. …The Tribunal finds on the evidence that there is no real chance that the application of the policy in the circumstances of these applicants would involve discriminatory enforcement of the law such as to amount to a convention or persecution.

16. The Tribunal continued and held:

    114. …the applicant’s children would be registered upon payment of the social compensation fees and would not be denied social and public services that would impact adversely upon them.

17. In relation to the applicants’ children the Tribunal found that:

    115. …with the payment of the social compensation fee, they would not face discrimination amounting to persecution and that they would be able to access social and public services as would any other children in the PRC.

18. The Tribunal addressed the apprehension concerning the applicant’s parents not recognising their relationship.  The Tribunal said that the non‑recognition of the relationship does not amount to serious harm and does not amount to significant harm and, accordingly, the applicants do not have a well-founded fear of persecution for this reason.

19. The Tribunal found that there is no real chance the applicants would face persecution for a convention reason for breach of family planning regulations in China.  In para.118, the Tribunal said as follows:

    118. The tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the PRC, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal has had regard to the evidence and claims put forward by the applicants. It repeats its findings that the applicant is not credible in relation to their claims regarding their Mormonism nor the claims relating to harm faced by the applicant for this reason, and that they would not face significant harm in the PRC for reasons of their religion. It further finds that there is no real risk that the applicant would suffer significant harm if returned to PRC for the same reasons under Australia’s protection obligations under s.36(2)(aa). It repeats its finding that the applicant would not face harm in the PRC for the reasons claimed, in particular as Mormons, and as unmarried parents, their violation of family planning laws, and that they are not credible in relation to the central elements of their protection claims in relation to their religion. Accordingly, the Tribunal does not accept that there is a real risk the applicants will be arbitrarily deprived of her life, or the death penalty will be carried out on her, or that she will be subjected to torture or to cruel or inhuman treatment or to degrading treatment or punishment if she returns to the PRC. On the evidence before it the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in the PRC. The Tribunal is not satisfied on the evidence, that a real risk of significant harm exists for the applicant. The Tribunal does not accept that the applicant is a person in respect on whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

20. After those findings, the Tribunal concluded:

    119. The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations.  Therefore, the applicant does not satisfy the criteria set out in 36(2)(a) or (aa) for a protection visa.

    120. The Tribunal affirms the decision not to grant the applicants Protection (Class XA) visas.

21. There is nothing in that evaluation and reasons to suggest the Tribunal did other than bring an independent and impartial mind to the conduct and determination of the review. It was open on the material before the Tribunal to express concerns and make findings as to the applicant’s claims in respect of her belief and there was the evident and intelligible justification for the findings made adverse to the applicant.

22. Further, I am satisfied that the Tribunal did properly consider the applicant’s evidence at the hearing and did consider the claims as to alleged risk to the applicants and considered the evidence as a whole. In light of the above there is no substance in any of the alleged grounds.  Accordingly, I am satisfied there is no jurisdictional error identified in the Tribunal’s reasons and no failure by the Tribunal to conduct the review according to law.

23. The applicant’s partner sought to identify his desire to look after the whole of his family and the concerns he would face, or the family would face on return and that he was taking these steps for the sake of his children.  None of those matters advance the existence of any jurisdictional error and it is clear that the Tribunal carefully and properly evaluated the applicant’s claims.

24. Accordingly, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 February 2015