SZNHE v Minister for Immigration & Anor [2010] FMCA 66 (28 January 2010)

Last Updated: 9 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHE v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 66

MIGRATION – RRT decision – Chinese applicant claiming political and religious persecution – disbelieved by Tribunal – no ground of jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A(1), 425

Minister for Immigration & Citizenship v SZJGV; Minister for Immigration & Citizenship v SZJXO [2009] HCA 40; (2009) 238 CLR 642

Applicant:

SZNHE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1933 of 2009

Judgment of:

Smith FM

Hearing date:

28 January 2010

Delivered at:

Sydney

Delivered on:

28 January 2010

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Mitchelmore

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,250.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1933 of 2009

SZNHE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in March 2008. She entered on a Chinese passport which had been fraudulently altered in relation to the details of the passport holder, after the stamping of an Australian visa in the passport. On 24 April 2008, she applied for a protection visa assisted by migration agent, Mr Harry Huang, at Pricilla International Co. Pty Ltd. She presented another passport showing what she said was her true name, and a copy of a Chinese identity card in that name.
2. As the delegate properly noted, country information concerning people from the region of the People’s Republic of China from which the applicant claimed to have come suggests that their documents should be addressed with caution. The delegate said:
   • DFAT reports that the level of fraud encountered in visa applications from three counties in northern Fujian Province, including Fuqing, is significantly disproportionate to that encountered from most other parts of China. The visa fraud covers a wide range of types, including but not limited to fraudulent employment claims, education claims and skills qualifications, use of imposters to sit IELTS tests and identity fraud through family registration booklets and passport fraud. This part of China has a history of emigration mainly for the purpose of remitting funds back to family. Recent integrity checks for visa applicants living in Fuqing County have returned a non-genuine rate of 96% and increasing levels of sophistication are being identified in the fraud.
3. In her protection visa application, the applicant referred to her religion as being Christian, but made no claims to fear persecution by reason of religious belief or practices. Rather, her detailed statutory declaration recounted a history leading to her being persecuted for political activities.
4. As background, she said that she had encountered hardships which limited her education, and again when her husband’s farmland was confiscated in 2002. She said that her husband since 2003 had rarely provided her and her children with financial support, and that she had had to look for jobs. She said that in February 2007 she obtained a job as a servant for a family in which the master, Mr W, and his wife worked for the government. She claimed that Mr W and his father “were hot-tempered persons” and she was mistreated by them.
5. She referred to the mistreatment of other people working as servants, and said that in November 2007, Ms Z, who was in a similar situation to hers “organised some countrywoman to deliver a letter, which was drafted by her and which was jointly signed by nearly 100 country women, to Fuqing Letters and Visiting Bureau, urging the government to pay attention to basic human rights of our countrywoman who had worked as servants or nannies at private home”.
6. The applicant claimed that because of her fear of Mr W, she did not sign this petition, but followed the signatories when it was delivered, and “I actually hided myself among those women”. However, when she went to Mr W’s home on the following day, the family was aware that she had attended the protest, and they assaulted her “very heavily” and she was “beaten and tortured by them for a long time; and in the night, I had to escape from [that person’s family]”.
7. She claimed to have stayed in her friend’s home, and on the next day to have attended a sit-in protest organised by her friend, Ms Z. She said: “however, our sit-in protest was regarded as anti-government movement; it was immediately suppressed by the police; and both Ms Z and I were arrested by Fuqing Public Security Bureau (PSB)”. The applicant was detained for more than one and a half months, and was released after she signed a confession and paid a penalty. The applicant said:
   • 16. I had to decide to leave the country after I was released, because it is definitely impossible for me, who has “black records” with the PSB, to have any chances for survival. Particularly, the PSB continually gave me troubles after I was released; and I have been subjected to questions or interrogations by them. I could not find any jobs; and I have frequently harassed by the local officials or the police.
   • 17. With the “black records” with the PSB, It was impossible for me to get my passport in my own name. I therefore had to ask a friend, who had worked in Guangdong for many years, to get me a passport. Finally, I got a chance to leave China on 25 March 2008.
8. The applicant attended an interview by the delegate of the Minister on 18 June 2008. At the start of the interview, the applicant made a new claim to fear persecution in China. She claimed an association with the “local church”, which was persecuted by the Chinese government as a cult known as the “Shouters”. The applicant claimed that her father had been an evangelist for that church, and that she had actively commenced to participate in its services five years previously, when misfortune befell her.
9. She claimed to have engaged in religious activities since arrival in Australia, and presented a one line statement from a “responsible brother” from the “Local Church in Sydney”. It said: “this is to confirm that [the applicant] has been meeting regularly with the church since March 2008”. The applicant later presented a similar statement from the secretary of a church in Brisbane. The applicant also presented some photographs purporting to corroborate that she had been assaulted, and that she had attended churches.
10. The delegate made a decision on 23 July 2008, refusing a protection visa. In a lengthy statement of reasons, the delegate considered the applicant’s evidence, and said that he took into account the applicant’s limited formal education and that she had been “emotional at times during the interview”. However, the delegate was not satisfied that the history claimed by the applicant was true, and identified some implausibilities and inconsistencies in her evidence about both of her claims. The delegate accepted that the applicant had engaged in religious activities in Australia, but considered that she had done so “to bolster the case that she is a refugee”, and applied s.91R(3) of the Migration Act 1958 (Cth). The delegate concluded that the applicant did not have a well-founded fear of being persecuted by the Chinese authorities if she returned to the People’s Republic of China.
11. The applicant appealed to the Refugee Review Tribunal, assisted by her migration agent. She attended a hearing by the Tribunal as first constituted on 27 October 2008. That member’s decision was made on 30 January 2009, but was set aside by consent orders in this Court on 30 April 2009. The Minister conceded that the Tribunal’s decision reflected what was thought to be legal error in its application of s.91R(3). However, the subsequent judgment of the High Court in Minister for Immigration & Citizenship v SZJGV; Minister for Immigration & Citizenship v SZJXO [2009] HCA 40; (2009) 238 CLR 642 shows that, in fact, the first Tribunal did not err in its application of that section.
12. On remitter, a new member of the Tribunal very thoroughly examined the applicant’s evidence. That member held a hearing on 6 July 2009, which lasted for more than three hours. The applicant’s agent was in attendance. The applicant was given the recordings of the hearing after the hearing, but she has not tendered a transcript to the Court, and I accept the lengthy description given by the Tribunal in its statement of reasons.
13. The applicant presented to the Tribunal updated statements from the Sydney and Brisbane churches, and “a number of photographs which she claims depict her family members attending the meetings of the Local Church”. The Tribunal examined the applicant’s claims of persecution for political opinions and religious beliefs, by exploring details of the events which she claimed. On the Tribunal’s description of the hearing, the flaws which the Tribunal subsequently identified as its reasons for finding her evidence not to be credible were amply revealed in the course of the hearing.
14. The Tribunal made a decision on 15 July 2009, which again affirmed the delegate’s decision.
15. In its “Findings and Reasons”, the Tribunal commented generally about the applicant’s credibility:
    • 75. The Tribunal found the applicant not to be a witness of credibility. There were significant inconsistencies in the applicant’s evidence, which the applicant was unable to explain to the Tribunal’s satisfaction. In her oral evidence before the current Tribunal, the applicant appeared to be reciting her written statement and repeatedly referred to it, irrespective of the Tribunal’s questions and at times she appeared to have difficulties providing details and information that related to matters other than those contained in her statement.
16. Explaining its conclusion, the Tribunal referred to a number of aspects of her evidence. In particular, it noted that the applicant’s evidence to it had, for the first time, asserted that the petition prepared by Ms Z referred to the applicant’s own circumstances, and was designed to protest against her treatment by Mr W. The Tribunal said: “the Tribunal finds that the applicant has fabricated that evidence, which is completely inconsistent with her past written and oral claims to the first Tribunal”.
17. The Tribunal also referred to the applicant’s confused and inconsistent evidence about the timing of the second protest attended by the applicant. Inconsistent evidence about this had been given at all three interviews which the applicant had attended. The Tribunal referred to other parts of her evidence at the hearing, where the applicant had plainly become evasive when questioned about details of her history.
18. The Tribunal referred to photographs which the applicant had claimed depicted marks evidencing beatings, but did not accept that the photographs did this, and found them unhelpful. The Tribunal found that “the applicant has been untruthful in her evidence concerning her treatment by Mr W and the incident involving the petition and the protests and the repercussions that flowed from it”. It rejected all elements of the applicant’s claim to have been persecuted on the grounds of political opinions and involvement in protests about women’s rights. It found that there was no real chance that the applicant would be persecuted for the reason of her political opinion, actual or perceived, if she were to return to China.
19. Turning to the applicant’s claims that she had been an active participant in a Local Church, and that her father was an elder and had been arrested on several occasions, the Tribunal accepted that the applicant had attended religious activities in China. It did not accept that she had attended the Local Church or any other unregistered church, and had been persecuted as a result of her religion or as a result of her association with others, including her father.
20. The Tribunal gave particular significance to the failure of the applicant to make this claim, when assisted by an experienced migration agent to present her protection visa application. The Tribunal also thought that the applicant’s evidence that Chinese authorities had not arrested her because of her involvement in the Local Church “because they could not find her or catch her”, was highly implausible and particularly inconsistent with the applicant’s claim to have been arrested and held in detention by authorities in relation to her political activities.
21. The Tribunal considered the photographs which the applicant had presented to show her family’s involvement in the Local Church in China. However, it did not accept that the activities shown were of the Local Church or any other unregistered religious organisation, and gave them no weight.
22. The Tribunal acknowledged that the applicant had displayed some knowledge about Christianity, and found that she had acquired it from involvement in a church in China which was not an unregistered church, and also from her religious involvement in Australia.
23. In relation to the latter involvement, the Tribunal concluded that she had attended activities at the Local Church in Australia, not out of genuine commitment or genuine interest in that church, but “to strengthen her application to be a refugee”. It therefore was bound to disregard that conduct pursuant to s.91R(3).
24. The Tribunal addressed all the other circumstances of the applicant, and was not satisfied that she is a person to whom Australia has protection obligations under the Refugees Convention.
25. The applicant’s application to this Court contains the grounds upon which she relies for orders remitting the matter for further consideration. The Court has power to make those orders only if it is satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
26. The applicant has not filed an amended application or any written submissions, but attended Court with a submission written in Chinese which was translated to the Court by the interpreter. It repeated the grounds of the application, which are:
    • 1. The Tribunal failed to comply with its obligations under s.425 of the Act.
      • Particulars
      • Subject to s.425 of the Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
      • In my case, the Tribunal did invite me to appear before the Tribunal (“the Tribunal’s hearing”). However, firstly, I do not think that the Tribunal has created a genuine opportunity for me to give my evidence orally in support of my claims. As I have claimed in my protection application, I am a country woman without having too much education. Therefore, I did indeed experience many difficulties at the Tribunal’s hearing. On some occasions, I could not understand the Tribunal’s questions properly; and sometimes, even if I might understand the Tribunal’s questions, but I was unable to give my evidences orally in a proper way. I have to say that my poor education background is one of main reasons why my oral evidence is vague, evasive or even inconsistent at the Tribunal’s hearing. I believe that the Tribunal must consider my particularly difficult situation while I have appeared before the Tribunal.
      • Furthermore, according to the evidence from UNHCR Handbook, it can be found that:
      • 198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.
      • I have to say that my poor education background, being in fear of the PRC authorities and coming from a farmer’s family in the countryside made me subjected to many difficulties at the Tribunal’s hearing; and thus I was inevitably afraid to speak freely and give a full and accurate account of my case at the Tribunal’s hearing.
      • Secondly, I do not think that the Tribunal has created a genuine opportunity for me to present argument orally relating to the issues arising in relation to the decision under review at the Tribunal’s hearing. As a matter of fact, the Tribunal, at the Tribunal’s hearing, rarely took genuine steps to ensure me to understand the issues arising in relation to my review application. On many occasions, while I replied to the Tribunal’s questions, I was impressed by the Tribunal that it had already understood my situation or accepted my claims; and thus I needed not to present any further arguments or any further claims.
    • 2. The Tribunal failed to comply with its obligation under s.424A(1) of the Act.
      • Particulars
      • It is considering my particular personal background that the Tribunal must firstly give me clear particulars of any information that the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review; and secondly the Tribunal must ensure, as far as is reasonably practicable, that I understand why it is relevant to the review and the consequences of it being relied on in affirming the decision that is under review; and finally the Tribunal must invite me to comment on or respond to it.
    • 3. The Tribunal’s decision has included a reasonable apprehension of bias.
      • Particulars
      • The Tribunal accepted that I am a Christian; and the Tribunal even accept that I have been involved in the church activities in China, but the Tribunal gave no reason why and how it has found that I “acquired such knowledge from” my involvement in a church in China, which was “not an unregistered church”.
27. There is no evidence supporting the factual assertions in the first ground, as to the applicant’s mental state at the hearing. The applicant has presented no sworn evidence nor a transcript indicating difficulties for the reasons she now asserts. On the Tribunal’s description, the applicant was given a very ample opportunity to explain her situation to the Tribunal, and to answer concerns identified by the Tribunal. The concerns ultimately relied upon by the Tribunal do not appear to me to be attributable to lack of education or nervousness. The applicant’s argument has not identified any particular part of the hearing to identify particular defects.
28. I am therefore not satisfied on the evidence before me that there was any breach by the Tribunal of obligations arising under s.425 of the Migration Act.
29. The second ground, alleging a breach of obligations under s.424A(1), is devoid of meaningful particulars identifying the information which is alleged to have been required be put to the applicant for written comment. For myself, I am unable to identify any such information.
30. The third ground, alleging reasonable apprehension of bias, appears not to rely on anything which occurred at the hearing or prior to the Tribunal’s publication of its decision. It invites the Court to infer a closed mind prior to that point of time from the reasons of the Tribunal.
31. However, in my opinion, the reasons of the Tribunal reveal a very thorough and genuine effort to assess the applicant’s credibility before arriving at the decision. The Tribunal discussed the applicant’s evidence, and gave logical and rational reasons for disbelieving the applicant’s claims to have risked persecution as a ‘Shouter’ in China. It was rational for it to conclude that the applicant had acquired her knowledge of Christianity in other ways. I do not consider that this reasoning provides any evidence that the Tribunal arrived at its ultimate decision with a closed mind in relation to the applicant’s evidence.
32. For the above reasons, I do not consider that the applicant has established any ground of jurisdictional error affecting the Tribunal’s decision. The decision is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 February 2010