SZNWN v Minister for Immigration and Citizenship [2010] FCA 131 (24 February 2010)

Last Updated: 1 March 2010

FEDERAL COURT OF AUSTRALIA

SZNWN v Minister for Immigration and Citizenship [2010] FCA 131

Citation:		SZNWN v Minister for Immigration and Citizenship [2010] FCA 131
Appeal from:		SZNWN v Minister for Immigration and Citizenship and Anor [2009] FMCA 1054
Parties:		SZNWN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1316 of 2009
Judge:		BUCHANAN J
Date of judgment:		24 February 2010
Legislation:		Migration Act 1958 (Cth)
Cases cited:		SZNWN v Minister for Immigration and Anor [2009] FMCA 1054
Date of hearing:	8 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr G. Johnson
Solicitor for the Respondents:	Spark Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNWN Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	24 FEBRUARY 201024 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1316 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNWN Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE:	24 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of the People’s Republic of China. She entered Australia on 28 July 2007 on a student visa which was cancelled on 7 November 2008 after the appellant had failed to explain her lack of satisfactory course attendance. The appellant applied for a protection visa on 2 June 2009. In a statutory declaration provided in support of that application she claimed to have arrived in Sydney, with her mother, in July 2007 and thereafter have studied at the Australian International High School for 12 months before moving to Scone, New South Wales in June 2008. She claimed that although her mother had applied for a protection visa in November 2008 she thought her student visa was valid until December 2008 and decided not to apply, at that time, for a protection visa. She was detained in March 2009 with her mother. She said she then found out her visa had been cancelled. The appellant applied for a protection visa after unsuccessfully applying to the Migration Review Tribunal and attending a hearing before that Tribunal in April 2009, in an attempt to revoke the cancellation of her student visa.
2. On 18 June 2009 the application for a protection visa filed by the appellant on 2 June 2009 was refused by a delegate of the Minister.
3. The appellant filed an application for review before the Refugee Review Tribunal (“the RRT”) on 23 June 2009. On 5 August 2009 the RRT affirmed the delegate’s decision to refuse a protection visa. The RRT was not satisfied that the appellant’s claims of involvement with the Christian religion in China were true. The RRT said:

The Applicant has provided no substantiation for her claims to have been involved with an underground church in China. Her account of this involvement at the hearing was notably sketchy and vague and added little to the bare claims set out in the Statutory Declaration attached to her protection visa application.

and:

I accept that the Applicant’s claimed religious involvement in China was of limited duration, lasting about sixteen months, and that she was only fifteen years of age when she allegedly began to go to church. I also accept that her underground church is said to have been a very small one which had only irregular contact with a priest. However, these religious experiences, if genuine, could reasonably be seen as significant and memorable ones for her. It is her claimed Christian belief which is said to be the basis for her fear of persecution and the reason she had to flee China to come to Australia. Even making allowance for her youth and the relatively brief exposure to Christianity in China which she claims, it would be reasonable to expect her to speak of these activities with some degree of familiarity and with some background detail. Having considered her evidence I am not satisfied that she was able to do so, or that she was speaking from first-hand knowledge. I am not satisfied that her evidence is consistent with that of a person who was genuinely committed to participating in Christian worship and was willing to place herself in considerable personal danger for sixteen months for the sake of her faith.

These conclusions are reinforced by the Applicant’s long delay in seeking protection in Australia. As put to her at the hearing, she did not seek protection immediately on arrival in July 2007 or shortly thereafter. She did not do so until June 2009, nearly two years later, after she had been placed in immigration detention in March 2009. She suggested that she had wanted to apply for a protection visa earlier but had been told that she would not be successful if she applied for protection and, later, that she had not realized her student visa had been cancelled in October 2008. I have considered these claims but I am not satisfied that they satisfactorily explain why, if she genuinely feared that she would face persecution and restrictions on her religious freedom if she had to return to China, she would not have sought Australia’s protection much earlier. I am not satisfied that, having ceased her studies in mid 2008, the cancellation of her student visa can have come as a surprise to her or that she would not have anticipated this outcome.

Taking these aspects of the Applicant’s claims together I am not satisfied that she was a member of an illegal underground Catholic church in china as she claims to have been.

4. The RRT also considered the appellant’s claims to have attended Christian worship in Australia but was not satisfied that these practices supported her claim for a protection visa. The RRT concluded, by way of summary:

In the light of all the information before the Tribunal I am not satisfied that the Applicant ever attended a Christian church in China or that she was ever at risk of harm from the authorities for such a reason. Nor am I satisfied that her conduct in attending church in Scone indicates that she is a Christian, or that she would seek to worship as a Christian if she returned to China. I am not satisfied that she would be imputed with Christian belief or practice by the Chinese authorities in future, or that they would target her for harm for such a reason. Nor am I satisfied as to the credibility of her associated claim that she would be imputed with an adverse political opinion for worshipping in an illegal underground church.

5. The appellant, on 31 August 2009, made an application for judicial review of the decision of the RRT to the Federal Magistrates Court of Australia (“the FMCA”). The application for judicial review stated the grounds of the application as follows:

People who are the subject of a complaint to the PRC authorities and who lack the ability to affectively [sic] respond to the applicants [sic] involvement in pro-denocracy [sic] movement in China.

6. An affidavit filed at the same time as the application for judicial review made the same statement. This statement represented the only content of the affidavit. The judgment of the FMCA (SZNWN v Minister for Immigration and Anor [2009] FMCA 1054) referred to the ground of appeal and said:
   36. The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the ground and in support of the application generally. It is not clear what the ground is intended to allege by way of jurisdictional error. The Applicant was unable to make any meaningful or relevant submission in support of the ground. When I asked the Applicant what she meant by the ground, she proceeded to repeat her primary claims. I explained to the Applicant that this Court is concerned only with whether the decision of the Tribunal is affected by a mistake that goes to its jurisdiction. The Applicant responded that the Tribunal asked lots of questions about her and her mother’s application and that she received unfair treatment from the Tribunal.
       
   37. When I asked her what was the unfair treatment she received she said that it was in part because she was not believed and in further part because the Tribunal asked her and her mother the same questions about explaining why she and her mother had given inconsistent evidence in respect of similar assertions. I asked the Applicant why that was unfair, that the Tribunal should ask her to explain the inconsistencies in the statements, and the Applicant responded that a legal adviser had told her that the Tribunal should not put the same questions to her and her mother and must consider her and her mother’s applications separately. Such a complaint is misconceived.
       
7. Various other complaints advanced at the hearing of the FMCA were dealt with and rejected. The FMCA concluded that the RRT had discharged its obligation to consider the appellant’s claims and assess them consistently with Australia’s obligation to provide protection to refugees. It concluded that the Tribunal’s decision was not affected by jurisdictional error. On 29 October 2009 the application for judicial review was dismissed.
8. On 19 November 2009 an appeal against the judgment of the FMCA was filed in this Court. The ground of the appeal is stated in the following terms:

The Federal Magistrate failed to find that the RRT decision was affected by jurisdictional error in that it failed to give sufficient consideration to the applicant’s religious activities in Australia.

9. Particulars were provided in the following terms:

Refugee Review Tribunal (“the Tribunal”) considered the applicant’s religious practice in St Mary’s church and was satisfied that she did not do so to strengthen her refugee claim. However, the Tribunal was not satisfied the conduct indicates that she is a Christian or that she would involve herself in Christian activities if she returned to China. The Tribunal made such findings on no reasonable ground.

The Tribunal made contradictive findings about the applicant’s religious practice in Australia. The Tribunal is satisfied that the applicant’s church activities in St Mary had not been motivated for the purpose of her refugee claim. However, the Tribunal also found the applicant’s church activities inside the detention centre was motivated for the purpose of her refugee claim and therefore disregard such activities. The Tribunal failed to give an acceptable reason why it made contradictive findings.

10. This complaint about the weight given by the RRT to the appellant’s religious activities in Australia does not disclose any jurisdictional error. Nor do the particulars improve the position for the appellant. The passages in which the RRT dealt with these aspects of the appellant’s claims were as follows:
    82. The Applicant claims to have attended Christian worship in Sydney after her arrival in Australia in July 2007, in Scone New South Wales between July 2008 and March 2009 and in immigration detention from March 2009.
        
    83. Regarding her claimed church attendance during the year she lived in Sydney the Applicant said that on three or four occasions she and friends attended St Mary’s Cathedral which she described variously as being near the Town Hall and near Hyde Park. Asked why she would not have done so more frequently she said it was because services were conducted in English and neither she nor her friends could understand much of them. She and her friends preferred to pray at home. When she was asked why she and her friends would not have gone to other Catholic churches in Sydney which conduct services in Mandarin she suggested that she did not know their addresses and that St Mary’s had a “good reputation” and was convenient to both to her school and her part-time work. Asked why, having allegedly been made aware of the importance of baptism and having been prevented from being baptised in China she would not have sought out a Mandarin-speaking priest for instruction, she suggested that she had been too preoccupied with her studies, caring for her mother and consulting with migration agent.
        
    84. The Applicant has provided no substantiation for her claim to have attended Mass in St Mary’s Cathedral in the twelve months following her arrival in Australia. Having considered her evidence I am not satisfied that this claim is credible and I am not satisfied that she ever attended church services in Sydney.
        
    85. The Applicant claims to have attended St Mary’s church in Scone since the time of her arrival there in July 2008. There is some substantiation for this claim in the shape of the letter from the parish priest, the Reverend John Woods who states simply that she was one of several who regularly attended Sunday Mass, that he had met her a few times and that she was on “reasonably friendly” terms with people she met in church. I also accept that there are photographs showing the Applicant and her mother involved in Church gatherings in Scone, although these are not among the documents submitted to the Tribunal. I note in this context, however, the Applicant’s evidence that St Mary’s provided low-rent accommodation for her, her mother and a number of her friends in a house situated close to the church and the Presbytery. Some further practical assistance was provided to them in the form of maintenance around the house, and they were also made welcome in gatherings arranged by the church. Having considered this evidence against my finding that the Applicant was not involved in an underground Catholic church in China and did not attend church in Sydney I consider that the reason she began attending church when she went to Scone was that it provided a supportive atmosphere for her, possibly at a time when she and her mother were experiencing difficult financial circumstances. I also consider that she may well have felt an obligation to attend church services in return for this support. I have not disregarded this conduct pursuant to s.91R(3) because I do not consider it as having been motivated by a desire to strengthen her claim to have a well-founded fear of persecution in China, given that she claimed protection only after she left Scone. However, I am not satisfied the conduct indicates that she is a Christian or that she would involve herself in Christian activities, whether or not illegal in the eyes of the authorities, if she returned to China.
        
    86. The Applicant also claims that she attends Catholic Mass (or, in her Statutory Declaration, “Catholic church meetings”) on a regular basis in immigration detention. Although there is no substantiation for this claim I accept that she may attend Catholic religious services there. However, given my findings about the credibility of her claimed church attendance in China and in Sydney, together with my finding about the reason for her church attendance in Scone, I am not satisfied that her reason for doing so is other than to strengthen her claim to be a refugee and I have disregarded this conduct in assessing whether she has a well-founded fear of persecution for a Convention reason.
11. The RRT gave cogent reasons for the distinction it made in its assessment of the appellant’s attendance at church in Scone and the appellant’s claims to have attended Catholic Mass on a regular basis in immigration detention and the reasons why she did so. The appellant’s criticisms of these aspects of the RRT’s decision do not raise any serious case of jurisdictional error in either the decision or processes of the RRT. They do not raise a case of error in relation to the judgment of the FMCA.
12. Notwithstanding a direction that she do so, the appellant filed no written submission in support of her appeal. At the hearing of the appeal she advanced no oral submission in support of her appeal.
13. The appeal must be dismissed. It is appropriate that it be dismissed with costs.
    

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 24 February 2010