SZUJC v Minister for Immigration

[2016] FCCA 439

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 439

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicant a Protection (Class XA) visa (Protection visa) – whether Tribunal misstated applicant’s evidence – whether Tribunal misstated or considered country information – no jurisdictional error.

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Applicant: SZUJC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1359 of 2014

Judgment of: Judge Manousaridis

Hearing date: 10 March 2015

Delivered at: Sydney

Delivered on: 4 March 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondent: Ms E Warner-Knight of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1359 of 2014

SZUJC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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

Applicant’s claims for protection

1. In a statement that formed part of her Protection visa application, the applicant claimed to fear harm on the basis of her religion.[1] The applicant claimed she was born into a Roman Catholic family and was baptised shortly after her birth.[2]  She claimed religious gatherings were always held in secret in order to avoid being discovered by the police, and that they were often held at her home.[3]  When she was 12, the applicant’s father was caught by the police when arranging a religious gathering and was detained for one month.[4]

   [1] CB27-29

   [2] CB27, [1]

   [3] CB27, [2]

   [4] CB27, [1]

2. In 2004 the applicant met her husband. He was not religious, but he accepted baptism later in that year when they received their “marriage sacrament”.[5]  In April 2007 the applicant discovered she was pregnant with her second child. The applicant decided to keep her baby, even though she knew this was against the Chinese family planning law.  When the applicant arrived at the hospital to give birth, the hospital refused to perform a caesarean section unless the applicant signed “a document for accepting sterilization”. The applicant signed the document, and she was sterilised when she gave birth.[6]

   [5] CB27, [3]

   [6] CB27, [4]

3. From the middle of 2009 the applicant started to preach the Roman Catholic faith to women in her village.[7]  On 13 October 2010, when she visited a woman to talk about her faith, two plain clothed policemen arrested the applicant. They accused the applicant of spreading underground religion.[8]  The applicant was taken to the police station where she was questioned about the underground church. The interrogators walked on the applicant’s back, and slapped her on the face. On the third day of her detention, her husband arranged to have the applicant released. The applicant paid a fine, and was forced to sign a guarantee she would not involve herself in underground church activities. The police warned the applicant that if she were to be caught attending and spreading the underground catholic faith, she would be placed in a detention centre and charged with disturbing the peace. She was also required to report to the police one day every month.

   [7] CB28, [2]

   [8] CB28, [4]

4. After she was released from detention, the applicant’s husband advised her to leave China. In November 2010 the applicant’s father helped find a “snakehead” to whom the applicant gave her passport. In February 2011 the “snakehead” informed the applicant he was unable to obtain the necessary documents to get the applicant out of China. In the beginning of June 2012, however, the “snakehead” contacted the applicant “suddenly” and asked her to provide two photographs. The applicant left her city and went to another city where she stayed in a hotel. A man came to the applicant’s hotel and showed the applicant her passport with a Malaysian visa inside. The applicant then used her own passport and took the ferry to Macau. On the ferry, the man took back the applicant’s passport and gave the applicant another passport. The applicant used that passport to travel to Hong Kong and, from Hong Kong, to Australia.

5. The applicant supported her application for a Protection visa with a certificate of baptism which recorded the applicant was baptised when she was two and half months old.[9] After she lodged her application, the applicant submitted what purported to be a letter from a Mr H that asserted that the certificate of baptism the applicant provided with her application was mistranslated, and that he was “pretty sure” the certificate was issued by an underground church.[10] The applicant submitted this letter after the delegate had sent a letter to the applicant informing her that the certificate of baptism stated the applicant’s baptism took place at a public prayer place, which indicated the applicant was baptised in a public place of worship and in a registered church.[11] The applicant also submitted a letter from a Mr W that stated he was acquainted with the applicant’s father in China and had been a member of the same underground church in China.[12]

   [9] CB41

   [10] CB52-53

   [11] CB43

   [12] CB49

Before the Tribunal

1. On 11 February 2014, the Tribunal wrote to the applicant a letter in which the Tribunal identified information which, subject to comments the applicant might wish to make, the Tribunal considered would be the reason or part of the reason for affirming the decision of the delegate.[13] The Tribunal identified the following information:

   [13] CB96-97

   a)The applicant had submitted a bogus baptismal certificate to the department.

   b)The applicant was not a member of the underground church in China.

   c)The applicant will be able to practice her Christian faith at either a registered or underground church in Fujian without any real fear of harm or persecution.

   d)Country information referred to in the delegate’s decision did not support the applicant’s claim she was a member of an underground church in Fujian or that she would face persecution because of her religion.

   e)The letters of support the applicant provided should be given little weight.

   f)The applicant would be of no interest to the Chinese authorities because of her religion.

   g)The applicant provided no documentary evidence she had children.

   h)The applicant provided no documentary evidence she had been sterilised in China.

   i)Country information quoted in the delegate’s decision did not support the applicant’s claim to have been sterilised.

   j)The applicant’s answers to the delegate’s questions about why the applicant travelled on a false passport were vague and evasive.

2. The applicant responded by letter dated 25 February 2014.[14] The applicant denied she provided a false baptism certificate, claiming the certificate she did produce was a genuine document issued by an underground church priest in China. The applicant admitted she had used a forged passport: “In order to flee China, I had to use a forged passport”.[15]

   [14] CB100-101

   [15] CB100

Tribunal’s reasons

1. The Tribunal did not find the applicant’s reasons for using a false identity to be credible.[16] The Tribunal also did not accept that the baptismal certificate the applicant provided was genuine.[17] The Tribunal relied on country information that showed there was a high incidence of document fraud in Fujian province, and country information about the issue of baptismal certificates. The Tribunal found, however, that the applicant was not aware the baptismal certificate was not genuine.[18] The Tribunal also found the applicant’s claim to be a member of the underground church to be credible in general, but did not find credible the applicant’s claim to fear harm because she was a member of an underground church.[19] Nor did the Tribunal find credible the applicant’s claims she was arrested or that there was a consequent need for her to be monitored by the authorities.[20] The Tribunal, however, found the applicant’s claims of sterilisation to be credible.[21]

   [16] CB127, [29]

   [17] CB128, [32]

   [18] CB128, [32]

   [19] CB128, [33]

   [20] CB128, [33]

   [21] CB128, [34]

2. The Tribunal accepted the applicant was Catholic and had been a member of an underground congregation.[22] It also accepted that the applicant’s father had been detained for one month in 1997 because of his involvement.[23]  The Tribunal accepted the applicant’s evidence that no member of the congregation had suffered any adverse consequence because of their religion since 1997.[24]

   [22] CB132, [59]

   [23] CB132, [59]

   [24] CB132, [59]

3. The Tribunal considered the applicant’s claim that she would live under the threat of persecution because of her religion; however, having regard to country information, found there was no evidence before it that underground Catholics in Fujian province were subject to systematic and discriminatory conduct.[25]

   [25] CB132, [60]

4. The Tribunal considered the applicant’s claims to have been arrested and detained and to have been the subject of ongoing monitoring, but found them not to be credible and to have been made to bolster her case for a Protection visa.[26]

   [26] CB132, [61]

5. Although the Tribunal accepted the applicant’s claim that she felt compelled to be sterilised following the birth of her second child,[27] the Tribunal found this sterilisation to have been carried out as part of China’s family planning law which was a law of general application, and that there was no Convention[28] reason or motivation behind the decision to sterilise the applicant.[29]

   [27] CB132-133, [63]-[66]

   [28] Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2)

   [29] CB133, [66]

6. For these reasons, the Tribunal found there was not a real chance the applicant would be persecuted now or in the reasonably foreseeable future for reason of her religion or any other Convention reason, and that the applicant’s fear of persecution was not well-founded.[30]  The Tribunal also found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk the applicant will suffer significant harm because of her religion.[31]

   [30] CB133, [67]

   [31] CB133-134, [70]-[73]

Grounds of application

1. The application filed in the Court contains three grounds of review which are as follows:

   The decision of the Tribunal:

   (a)failed to take into account relevant considerations.

   (b)is affected by the procedural unfairness.

   (c)gives rise to an apprehension of bias.

2. At the hearing before me, the applicant, who is not legally represented, made submissions without reference to the grounds stated in her application. When she concluded her submissions, I requested the interpreter to translate the three grounds stated in the application, and asked the applicant whether she had any submissions she wished to make in relation to those grounds. The applicant said she had nothing to add.

3. In those circumstances, the grounds stated in the application by themselves disclose no jurisdictional error by the Tribunal. The grounds are bare assertions that do not engage with the Tribunal’s reasons for not accepting the applicant’s claims. That, however, does not necessarily mean the application must be dismissed. The applicant made submissions, and she also filed written submissions. It will be necessary to consider the applicant’s oral and written submissions. I will first consider the applicant’s written submissions.

The applicant’s written submissions

1. The first matter the applicant’s written submissions (AWS) address is the Tribunal’s refusal to accept her explanation for her travelling on a false passport. The applicant submits the Tribunal gave no reasons for not accepting the applicant’s explanation; and the Tribunal misstated the applicant’s evidence.[32]

   [32] AWS, [1]

2. In the absence of a transcript of the hearing before the Tribunal, it is not possible to assess the applicant’s claim that the Tribunal misstated the applicant’s evidence. The applicant, however, is correct in her submission that the Tribunal gave no reasons for not accepting the applicant’s explanation. The Tribunal, after setting out the applicant’s explanation, simply concluded it did not find the applicant’s explanation credible.

3. That the Tribunal did not give reasons for not accepting as credible an applicant’s testimony could be a basis for inferring the Tribunal “did not assess in any real or active way” the claims that were before it,[33] or did not undertake “any evaluation”[34] of the evidence before it, or undertake any “process of weighing evidence and preferring some over the other”,[35] and, for these reasons, did not properly consider the claims that were before it. In the circumstances of this case, however, I am not prepared to draw such inference. The Tribunal set out with some care and detail the questions it asked of the applicant, and the answers she gave. The Tribunal accepted the applicant was credible on most but not all aspects of her claim. The Tribunal did not find that the applicant was worthy of no credit in general. The proper inference to draw from these matters is that the Tribunal did assess and weigh in an active way the applicant’s claims and evidence.

   [33] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [39] (Kenny, Griffiths and Mortimer JJ)

   [34] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [45] (Kenny, Griffiths and Mortimer JJ)

   [35] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [50] (Kenny, Griffiths and Mortimer JJ)

4. In any event, the Tribunal’s not accepting the applicant’s explanation for her using a false identity had no bearing on the reasons for which the Tribunal did not accept the applicant’s claims. The principal reason was that, even though it accepted the applicant was an adherent of the underground church, the Tribunal, relying on country information, was not satisfied that the applicant had a well-founded fear of persecution, or that there was a substantial risk she would suffer significant harm if she were to return to China.

5. The second submission the applicant makes in her AWS is the Tribunal misstated country information about baptismal certificates.[36] The country information on which the Tribunal apparently relied stated there “are no standardised baptismal certificates issued within underground Catholic churches”, baptismal certificates were not issued as a matter of course, and such certificates underground Catholic churches did issue “might be an informal, hand-drawn document written in Chinese”.[37] The Tribunal noted that “[n]o information has been located on the issuing of baptismal certificates by the official Catholic Church”.[38] The Tribunal’s stating that it accepted “the country information about the issue of Baptismal Certificates by the Official Church and, in particular, the features of these documents” appears to have been an error. Given the Tribunal said no information was located about the issue of baptismal certificates by the Official Church, the Tribunal must have intended to refer to country information concerning baptismal certificates issued by underground churches. The applicant’s submission appears to read the Tribunal as having intended to refer to country information about the underground church.

   [36] AWS, [2]

   [37] CB139.7

   [38] CB139.7

6. The applicant submits that the county information on which the Tribunal relied did not state that certificates would only be issued by the Official Church, or that underground churches do not ever issue baptismal certificates. The applicant further submits that the country information did not indicate that the baptismal certificate must be a bogus or fraudulent document if issued by an underground church. All this is true. But the country information the Tribunal set out in its reasons did not make statements to that effect; nor did the Tribunal interpret the country information as making any of these statements. Further, although the Tribunal concluded the baptism certificate the applicant provided was bogus, it did not do so because it considered country information that stated such certificates were bogus documents; the Tribunal did so as a matter of inference on the basis of a number of matters.

7. In any event, even if the Tribunal has misstated country information, it had no impact on the decision the Tribunal made. Although the Tribunal found the baptism certificate the applicant provided was bogus, it found the applicant was unaware it was bogus. The Tribunal, therefore, made no adverse finding of the applicant’s credibility on the basis of its conclusion that the baptismal certificate the applicant provided was bogus.

8. The third submission the applicant makes in her AWS is that the Tribunal “failed to consider, correctly and carefully” a letter from Pope Benedict to the Bishops, Priests, Consecrated Persons and Lay Faithful of the Catholic Church in China in May 2007.[39] The applicant submits that the letter shows that the official church in China is not a genuine Roman Catholic Church. The applicant submitted the Tribunal misstated the effect of the letter.[40]

   [39] AWS, [3]

   [40] AWS, [3]

9. The applicant’s submissions do not disclose any jurisdictional error; they only manifest a disagreement with the Tribunal’s assessment of the Pope’s letter. The Tribunal interpreted the Pope’s letter as permitting Catholics to attend the official church, and did not accept the applicant’s submission that while it might appear the Pope had said people could attend the official churches, he did not mean it, and the Pope had placed conditions on their attending. It was reasonably open to the Tribunal to adopt that view. In any event, whether or not the official church was a genuine Catholic church was not relevant to the reasons for which the Tribunal did not accept the applicant’s acclaims. The Tribunal accepted the applicant was an adherent of underground churches, not of the official church.

10. The applicant also submitted the Tribunal did not consider the applicant’s evidence of the reason she did not attend the official church in China. I do not accept that submission. The Tribunal found the applicant to be credible when discussing the underground church,[41] and accepted the applicant was Catholic and had been a member of an underground congregation.[42]

    [41] CB128, [33]

    [42] CB132, [59]

11. The fourth submission the applicant makes in her AWS is that the Tribunal’s findings are internally contradictory. On the one hand, the applicant submits, the Tribunal rejected her credibility partly because the Tribunal doubted the authenticity of the baptismal certificate. On the other hand, the Tribunal stated the applicant’s case would not turn on whether the baptismal certificate was genuine, and the Tribunal found the applicant was a member of an underground church congregation.[43] I do not accept these submissions indicate any internal inconsistency in the Tribunal’s reasons.

    [43] AWS, [4]

12. The fifth submission the applicant makes in her AWS is that the Tribunal “selected country information obviously based on its own tastes”.[44] The applicant refers to two extracts from the US Country Reports on Human Rights Practices for 2013. The country information the applicant identifies relates to information concerning human rights abuses in general. It does not relate to the country information on which the Tribunal relied for concluding that members of underground churches in Fujian province do no suffer persecution or are not exposed to a significant risk of harm. I do not, therefore, accept the applicant’s submission.

    [44] AWS, [5]-[7]

1. The sixth submission the applicant makes in her AWS relates to the Tribunal’s having accepted the applicant’s claim she was sterilised. The applicant submits the Tribunal failed to consider the applicant’s complementary protection claim.[45] I do not accept that submission. It was reasonably open to the Tribunal not to accept that the applicant did not face a significant risk of substantial harm if she were now returned to China, even though in 2007 the applicant was coerced into being sterilised. The applicant did not claim fear of harm because she had been sterilised.

   [45] AWS, [7]

2. The seventh submission the applicant makes in her AWS is, in effect, an allegation of bias. The applicant submits the Tribunal “needed to find fault with my evidence”, which led the Tribunal to overturn its own findings that were favourable to the applicant.[46] There is no substance to that submission. The Tribunal did not overturn findings that supported the applicant’s claims. There is nothing to suggest the Tribunal was actually biased against the applicant; and there is nothing in the material before me that could suggest the Tribunal acted in a manner that could give rise to a reasonable apprehension of bias.

   [46] AWS, [8]

The applicant’s submissions at the hearing

1. The applicant’s oral submissions to a large extent repeated the matters contained in the AWS. To the extent the applicant did so, I will not repeat what I have already said in relation to the AWS. The applicant, however, made additional submissions.

2. The applicant’s first submission was that the Tribunal did not believe the applicant that she was detained, and the Tribunal did not believe the applicant was detained because the applicant did not have any documentary evidence to support that claim. The applicant submitted the Tribunal ignored country information to the effect that people in China are detained without any documentation.

3. The Tribunal did not rely on the absence of documentation for not accepting the applicant’s claims that she had been detained, although that was one of the matters on which the delegate relied for not accepting the applicant’s claim. In any event, the Tribunal’s not accepting the applicant’s claim she was arrested and detained did not have any bearing on the Tribunal’s reasons for deciding the applicant did not have a well-founded fear of persecution and did not face a real risk of significant harm if she were to be returned to China. The Tribunal accepted the applicant was a member of an underground church but, based on country information, concluded the applicant did not have a well-founded fear of persecution on that count, or face a real risk of significant harm.

4. The applicant’s second submission was that the Tribunal ignored the fact that the applicant was Roman Catholic and that it would be impossible for her to practice her religious beliefs in China. This submission does not manifest any jurisdictional error. It only expresses disagreement with the Tribunal’s finding that the applicant will not be persecuted if she continues to participate in underground Church activities if she returns to China.

5. There is one final matter I should note. During her submissions in reply, the applicant made a number of statements about the explanations the applicant says she gave to the Tribunal for using a false passport. Ms Warner-Knight objected on the ground it was evidence from the bar table. My initial impression was that the substance of what the applicant said she stated to the Tribunal was reflected in what the Tribunal had recorded the applicant said. I said I would call for the audio recording of the Tribunal hearing if I were to conclude my impression was incorrect. I am of the opinion that the Tribunal recorded in its reasons the substance of what the applicant submitted she said to the Tribunal. It is not, therefore, necessary for me to listen to the audio recording. What the applicant submitted to me in substance repeated the submissions the applicant made in the AWS concerning the Tribunal’s not accepting the applicant’s explanation for using a false passport.

Conclusion and disposition

1. The applicant has not succeeded in establishing the Tribunal made any jurisdictional error. I propose, therefore, to dismiss her application. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 4 March 2016