WZANM v Minister for Immigration
[2009] FMCA 712
•23 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZANM v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 712 |
| MIGRATION – Protection visa application – whether well founded fear of persecution – claimed Catholicism – whether jurisdictional error. |
| Migration Act 1958 (Cth), Division 4 Part 7 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 |
| Applicant: | WZANM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 30 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 8 July 2009 |
| Date of Last Submission: | 8 July 2009 |
| Delivered at: | Perth |
| Delivered on: | 23 July 2009 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
Reasons for judgment will be delivered in Chambers at a later date.
The applicant pay the respondents’ costs in the sum of $5,865.00 by 4:00pm on 31 July 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 30 of 2009
| WZANM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 8 July 2009 the Court made the following orders:
1. The application be dismissed.
2.Reasons for judgment will be delivered in Chambers at a later date.
3. The applicant pay the respondents’ costs in the sum of $5,865.00 by 4:00pm on 31 July 2009.
Those orders were made following a hearing which the applicant did not attend. The applicant had been notified of the hearing time and date by both the Court and the respondent’s solicitors. A number of attempts by officers of the Court to contact the applicant on a mobile phone number provided by her were unavailing.
The following are the Reasons for Judgment referred to in order 2 of the 8 July 2009 orders.
Application
This is an application to this Court for judicial review of a Refugee Review Tribunal[1] decision[2] dated 20 February 2009.
[1] “Tribunal”.
[2] “Tribunal Decision”.
Grounds of Application
The grounds of the application are as follows:
1. RRT did not take into account my case fairly. Chinese government did a lot of harm to me. RRT did not consider my situation in China.
2. RRT did not give me more chance to explain their doubts.
The affidavit in support of the application does nothing other than annex the Tribunal Decision.
Orders Sought
The orders sought by the applicant are as follows:
1.Order to set aside RRT’s decision.
2.Review my case again by RRT.[3]
[3] Transcribed from the application without amendment.
The applicant is a citizen of the People’s Republic of China.[4] She arrived in Australia on 6 August 2008.[5] On 19 September 2008 the applicant applied for a Protection (Class XA) visa.[6] The applicant claimed persecution arising from her belonging to, and practice of, Christianity.
[4] “China”.
[5] CB14 and 36.
[6] “Protection visa”.
The delegate refused the application on 25 November 2008.[7] On 12 December 2008 the applicant sought review of the delegate’s decision in the Refugee Review Tribunal.[8]
[7] CB90-101 (“delegate’s decision”).
[8] CB102.
On 14 January 2009 the Tribunal invited the applicant to attend a hearing on 17 February 2009.[9]
[9] CB115.
On 19 February 2008 the Tribunal affirmed the delegate’s decision to refuse to grant a protection visa to the applicant.[10]
Tribunal Decision
[10] CB134.
Claims and evidence
The Tribunal considered the claims and evidence provided by the applicant to the Tribunal. It is not necessary to set out exhaustively the claims or evidence before the Tribunal. However, the Tribunal had regard to claims by the applicant that:
a)she was a member of an underground Catholic Church in China;[11]
b)she had been detained and interrogated by Chinese authorities because of her religious beliefs and activities;[12]
c)she was beaten whilst in detention;[13]
d)her father was detained for worshiping in an underground church and beaten in detention;[14]
e)in June 2008 police officers raided her church during a religious gathering following which she was detained, interrogated, physically abused and forced to sign an undertaking that she would stop all underground church activities, and released following payment of a fine;[15]
f)she came to Australia so she could “practise religion freely”;[16]
g)she had studied the Bible with her underground church group;[17]
h)related to her knowledge of matters biblical and Christian;[18] and
i)the circumstances in which she travelled to Australia, and with whom she travelled, and the acknowledgment that information provided to the Australian Consulate General in Shanghai relating to her visitor visa was false.[19]
[11] CB134.
[12] CB134.
[13] CB134.
[14] CB134.
[15] CB134.
[16] CB134.
[17] CB135.
[18] CB135.
[19] CB135.
At the Tribunal hearing the applicant gave oral evidence concerning:
a)her sources of income and business in China;[20]
b)her father’s detention in January 2007;[21]
c)her exposure to underground churches since childhood;[22]
d)whether or not she had been baptised as a Christian;[23]
e)the circumstances of her church attendance since coming to Australia;[24]
f)the form of her religious activities in China after 2002 when she said she commenced to study the Bible and read the gospels with an underground Christian church;[25]
g)the nature, size and membership of her Bible study group in China and its links with other religious groups inside or outside China;[26]
h)her detention by the police in 2008 as a consequence of the Chinese Public Security Bureau raiding a house at which she was engaged in religious study activities;[27] and
i)whether or not she had had subsequent contact with the other eleven people allegedly detained on the night of the raid by the Chinese Public Security Bureau.[28]
[20] CB135.
[21] CB135.
[22] CB136.
[23] CB136.
[24] CB136.
[25] CB136.
[26] CB137.
[27] CB137.
[28] CB137.
The Tribunal indicated that it was difficult to believe her account because of inconsistencies about her contact with fellow believers after her release from detention. The Tribunal also told the applicant that independent country information indicated that an underground church or religious study group of her kind would be unlikely to come to the attention of the Chinese authorities.[29] The Tribunal told the applicant that it was difficult to believe her claims that she had been a Christian in China. The applicant’s response to this was to say that she “wanted to stay in Australia to make a contribution by paying tax and to enjoy human rights here.”[30]
[29] CB137.
[30] CB137.
The Tribunal also questioned the applicant about her religious beliefs and the beliefs of Catholics.[31]
[31] CB138.
The Tribunal also asked the applicant about the information in her visitor visa application which was incorrect, and in particular, the incorrect naming of her husband in the visitor visa application.[32]
[32] CB138.
The Tribunal also took into account a variety of evidence from other sources, which can generally be categorised as independent country information.[33]
[33] CB139-141.
Tribunal’s findings
The Tribunal found that it was plausible that the applicant had been born into a Catholic family and that as a small child she had been taken by her parents to religious gatherings which were not sanctioned by the Chinese government.[34] However, the Tribunal was not satisfied that the applicant was involved in any religious activities as a Catholic while in China. In particular, the Tribunal found that the applicant’s:
a)unfamiliarity with the leadership of the Catholic Church; and
b)inability to repeat any prayer,
was inconsistent with her claim to have been participating in religious practice and mixing with other Catholics for many years.[35] The Tribunal also noted that she did not know if she was baptised and had taken no steps to be baptised since arriving in Australia.[36]
[34] CB141.
[35] CB141.
[36] CB141.
The Tribunal did not accept that the applicant was a member of an underground Christian group in China or that she was detained by the police because of any association with an underground religious group.[37]
[37] CB141.
The Tribunal found that the applicant’s current knowledge of Catholicism was consistent with no more than having attended a church in Sydney for a couple of months. The Tribunal accepted that she had done so.[38]
[38] CB142.
The Tribunal was not satisfied that the applicant regarded herself as a Catholic. The Tribunal noted that she had not attended any church for the past four months out of a total of six months in Australia. The Tribunal appreciated that she had a financial debt to repay and this was driving her to find work where she could. However, the Tribunal noted that the applicant claimed that she wishes to remain in Australia primarily so that she can enjoy her right to practise her religion. Her failure to do this was inconsistent with that claim.[39]
[39] CB142.
The Tribunal also found that the applicant’s attendance at a church in Sydney was not done for a purpose other than strengthening her claim to be a refugee.[40]
[40] CB142.
The Tribunal looked at all of these factors and was unable to be satisfied that the applicant was a Catholic or a Christian. The Tribunal was also not satisfied that the applicant might be regarded as a member of an underground church if she returned to China. This was:
a)partly because she was not regarded as a member of an underground church in the past; and
b)partly because the Tribunal was satisfied that she would not have any interest in participating in underground Christian activities.[41]
[41] CB142.
The Tribunal found that the applicant did not have a well founded fear of persecution on the basis of religion or political opinion imputed to her arising from her claimed religious beliefs.
Jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[42] Further, an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[43]
[42] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne.
[43] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
The applicant must advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.[44]
[44] SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214.
The Tribunal’s rejection of the applicant’s claims was based in part on its conclusion about the applicant’s lack of credibility. This in turn was based upon the applicant’s lack of knowledge of the Catholic Church. This the Tribunal found to be inconsistent with her claim to have attended weekly Church meetings since 2002. An applicant is not expected to “pass an examination in divinity studies”.[45] However, the Tribunal found that the applicant’s knowledge of the Catholic Church displayed during the hearing was minimal. That is a factual finding open to the Tribunal on the evidence. The Tribunal’s subsequent findings that the applicant had not attended weekly Catholic meetings since 2002, and that the applicant was not detained by virtue of her Catholicism, were therefore reasonable.
[45] SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 per Logan J at [56].
The Tribunal’s approach to the assessment of the applicant’s evidence was one it was fairly entitled to undertake. The Tribunal’s findings in relation to the credibility of the applicant were a fact-finding task within the Tribunal’s jurisdiction. Any grievance as to the Tribunal’s conclusions, or as to the weight attributed to any part of the evidence, is a grievance as to the merits of the Tribunal Decision.
The Tribunal correctly set out:
a)the task before it;
b)the relevant law; and
c)the applicant’s claims and evidence.
There was no error in the Tribunal’s statement of the law and no misdescription or error in the Tribunal’s description of the applicant’s claims. Nothing in the Tribunal Decision discloses that it failed to have regard to relevant considerations, or misunderstood its task as requiring a genuine review of the merits of the decision of the delegate.
The Tribunal simply did not believe the applicant’s claims to be a Catholic. That was a finding open to the Tribunal. To take a particular view regarding certain aspects of the applicant’s evidence, and thereby to reason to a conclusion on a visa applicant’s credibility, does not constitute jurisdictional error.
There is nothing:
a)in the Tribunal Decision; or
b)in the grounds of application and supporting affidavit,
to support any argument that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with Division 4 Part 7 of the Migration Act 1958 (Cth).
Conclusion
The Tribunal's Reasons for Decision do not involve jurisdictional error. The application will be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S Gough
Date: 23 July 2009
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