SZOBA v Minister for Immigration & Anor [2010] FMCA 99 (17 February 2010)

Last Updated: 22 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 99

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – observations on the testing of religious faith – observations on the application of s.91R(3) of the Migration Act 1958 (Cth) – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.91R

Minister for Immigration v SZJGV [2009] HCA 40 NAHI v Minister for Immigration [2004] FCAFC 10 SBCC v Minister for Immigration [2006] FCAFC 129 SZJBD v Minister for Immigration [2009] FCAFC 106 SZNLJ v Minister for Immigration [2009] FCA 1414 WALT v Minister for Immigration [2007] FCAFC 2 Yan v Gonzales [2006] USCA10 65; (2006) 438 F.3d 1249, 1252 (10th Circuit)

Applicant:

SZOBA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2920 of 2009

Judgment of:

Driver FM

Hearing date:

17 February 2010

Delivered at:

Sydney

Delivered on:

17 February 2010

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2920 of 2009

SZOBA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 6 November 2009. The Tribunal affirmed a decision of the delegate of the Minster not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. Background facts relating to the applicant’s protection visa claims and the Tribunal’s decision on them are conveniently summarised in the Minister’s written submissions filed on 9 February 2010. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 4 of those written submissions:
   • The applicant arrived in Australia on 1 July 2006: court book (CB) 99 [2], and applied for the visa on 6 May 2009: CB 1-34. The delegate interviewed the applicant on 29 May 2009: CB 54.5, and refused the visa on 17 June 2009: CB 49-59. The applicant applied to the Tribunal for review on 16 July 2009: CB 61-64. After a postponement at the applicant’s request the Tribunal held a hearing on 13 October 2009: CB 82-83.
   • The applicant claimed to fear persecution in China for reason of his Christian religion. He claimed that his parents were members of the Local Church, and that he was also a member. He claimed that his father was suspected of distributing Recovery Bibles, and ultimately detained in March 2009. The applicant claimed that while in Australia he had been attending the Local Church since March 2007, and had been sending his father scanned copies of religious material over the internet that he had obtained from the church. He claimed that this had been discovered since the arrest and confessions of other church members in China, and that he feared harm from the Chinese authorities as a result. At the hearing he submitted alleged official documents concerning the arrest of his father and the summonsing of his sister and mother. See generally CB 101-110.
   • The Tribunal found that the applicant was not truthful or credible: CB 114 [80], and had fabricated his claims: CB 120 [112]. It noted that the applicant’s knowledge of the Bible was inconsistent with his claims to have attended the Local Church every Sunday from a young age and to have read the Recovery Bible every day, as was his inability to name any songs he claimed to have sung at Local Church meetings or recite passages from the Bible, and rejected his claims that this was because he was extremely nervous and subjected to huge pressure: CB 114-117 [81-96]. The Tribunal noted that the applicant at the hearing claimed he only studied the Bible recently and had not studied it much in the past, contradicting his written claims: CB 117 [97]. The Tribunal concluded that while the applicant had some knowledge of the Bible and the Local Church, this had only been acquired recently and been learnt for the benefit of the Tribunal: CB 117 [98]. The Tribunal further noted the applicant’s inability at the hearing to describe the material he allegedly sent to his father by the internet, and the inconsistency between this evidence and that given in his post-hearing statutory declaration, and country information about official monitoring and control of the internet in China, and concluded that the applicant had not sent material to his father over the internet: CB 117-118 [99-103]. Given the late provision of the alleged official documents concerning his father, mother and sister and independent country information concerning document fraud in China the Tribunal concluded that they were not genuine: CB 118-119 [104], and found that if the applicant’s claims were true he would not have delayed for nearly three years before seeking protection in Australia: CB 119 [105]. Finally the Tribunal found that the applicant had only attended a Local church in Sydney since February 2009 and disregarded this pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”): CB 119-120 [106-111]. It found that none of his claims concerning the Local Church or sending material to his father were true and did not accept that the applicant would have any involvement with the Local Church if he returned to China.
2. These proceedings began with a show cause application filed on 30 November 2009. The applicant continues to rely on that application. The application contains two grounds with detailed particulars which I incorporate in this judgment:
   • 1. The Tribunal erred in law in making its decision unfairly and incorrectly.
     • Particulars
     • The Tribunal’s decision has significantly relied on its prejudiced view that I should know everything in the Bible if I read the Bible every day and studied and discussed the Bible every Sunday.
     • However, firstly, I am not an Elder or the Christian who has graduated from a seminary. Therefore, it would be almost impossible for me to be able to correct answer all specific questions put to me based on the Bible. I strongly believe even the Tribunal member herself would be unable to answer those questions correctly and accurately if those questions had been put to her just that she had put to me. It is definitely unfair!
     • Secondly, it was not doubt that I had been subjected to huge pressure and that I had been very nervous in the Tribunal’s hearing. I strongly believe even the Tribunal member herself would have been subjected to similar difficulties if she had been on my position. It was no doubt that anyone, even including the Tribunal member herself, would be inevitably to respond the questions properly and normally; and that it would be inevitably that anyone would feel nothing in his or her mind somehow; and that it would be inevitably that anyone might have been unable to understand the questions properly.
     • I would like to emphasize that I am a devout Christian and a genuine member of the Local Church; and that I do indeed read the Bible on daily basis; and that I have insisted on attending gatherings of the Local Church every week.
   • 2. The Tribunal erred in law because it failed to consider my evidence on an unprejudiced view or the Tribunal’s finding has included a reasonable apprehension of bias.
     • Particulars
     • The Tribunal obviously knew nothing about actual situation in China apart from picking up some pieces of information from so-called independent country information. Particularly, the Tribunal seemed to believe that the Chinese government system, such as so-called “great firewall” or the “Golden Shield”, or the so-called “internet police”, could block everything.
     • However, as I have claimed at the Tribunal’s hearing, the contact between my father and me was through QQ. Although QQ might also be monitored by the PRC authorities, both my father and I always did everything carefully each time when I transferred the Local Church materials from the overseas to China through internet. Particularly, we had to see each other in person through cameras on the computers before we spoke with each other or before I sent the Local Church materials to him. Furthermore, both my father and I had to ensure that the internet had worked well and properly without any problems, including check of internet speed. If we thought that something might be going wrong, we would terminate our contacts immediately. That’s whey my father and I could keep in touch with each other through internet smoothly and successfully.
     • Furthermore, the Local Church materials, which I have sent back to China, are mainly copies of The Holy Word for Morning Revival, which is a special promotion book published in the overseas and which is also a Local Church book banned by the Chinese government. The book is like a handbook to guide members of the Local Church to study the Bible on daily basis. The new issue of the book is normally published every 6 weeks. Therefore, even if my father was very much experienced in evangelizing to the people, he still needed the new issues of the books regularly to assist him to guide church brothers and sisters. So, I had to take risk to send them back to China. However, it was very difficult for me to transfer the whole book through the internet; and thus I normally scanned one or two articles from the book and then sent them to my father.
3. The particulars repeat arguments submitted to the Tribunal by the applicant in a post-hearing statutory declaration.
4. I have before me as evidence the court book filed on 23 December 2009. That is the only evidence I have before me.
5. The applicant did not prepare any written submissions but did make oral submissions. The applicant asserts that the Tribunal decision is unfair and that the Tribunal was biased against him. The applicant asserts that this is demonstrated by the manner in which he was questioned about his knowledge of Christianity and because of the Tribunal’s reliance upon country information concerning the ability of the Chinese authorities to monitor and control the internet.
6. The Minister’s submissions relating to these issues are set out at paragraphs 7 and 8 of the outline of written submissions:
   • The first ground claims that the Tribunal was unfair in questioning the Applicant about his knowledge of the Bible and that he had been nervous. The Tribunal was entitled to explore the Applicant’s knowledge of his claimed religion: SBCC v MIMA [2006] FCAFC 129 at [45]; WALT v MIMA [2007] FCAFC 2 at [30]; SZNLJ v MIAC [2009] FCA 1414 (Bennett J) at [31], especially given the Applicant’s initial claim that he attended the Local Church every Sunday since an early age and read the Bible every day. It considered the Applicant’s claim that he was nervous, but found that this did not explain his lack of knowledge of Local Church beliefs and practices: CB 117 [95]. In any case, the Applicant’s level of knowledge was but one of many difficulties the Tribunal had with his evidence that cumulatively led it to find he was untruthful and had fabricated his claims: see para 4 above. There was nothing unfair about the Tribunal’s procedure (and even if there were this would not amount to a jurisdictional error given s 422B(1) of the Act).
   • The second ground seems to take issue with the Tribunal’s assessment of independent country information concerning an internet firewall in China (CB 118 [102-103]), but this is a factual matter for the Tribunal: NAHI v MIMA [2004] FCAFC 10 at [11-13], and in any case again was one of only a number of difficulties it had with the Applicant’s evidence. This ground at most seeks merits review.
7. I agree with those submissions. While there may be circumstances where the manner in which an applicant’s religious faith is tested by the Tribunal establishes a reasonable apprehension of bias, such cases will be rare: see SZJBD v Minister for Immigration [2009] FCAFC 106 at [80] - [88]. In the present case, the applicant had asserted a strong regular and lengthy involvement in the faith, and daily reference to the Bible. The Tribunal’s questioning of him, while detailed, was intended to test that assertion. The adverse credibility finding made by the Tribunal was based not simply on the applicant’s answers to the Tribunal’s questions about his knowledge of the Bible, but also his shifting claims as to the extent of his knowledge as it was tested. The Tribunal found that while the applicant demonstrated some knowledge of the Local Church to which he claimed to be a member, his evidence indicated that he had learnt information in order to convince the Tribunal that he had attended the Local Church in China (Tribunal decision, paragraph 87, CB 115).
8. There is a view that there are better ways to test claims of a well-founded fear of being persecuted for reasons of religion than by asking an applicant questions to test knowledge of details of a faith. On that view, decision makers should focus on observable triggers of persecution that give rise to a risk of serious harm, rather than attempt to test the sincerity of asserted religious faith by means of a knowledge test or an examination of subjective beliefs. There are real risks in the latter approach[1]. A particular difficulty is that tests of religious knowledge are irrelevant without reliance on an assumption about what an applicant should know. Such an underlying assumption may be difficult to validate. The alternative (and to my mind more reliable) approach recognises that refugee status does not depend upon genuine belief but rather on the motives of persecutors. In that regard, a credibility assessment will be focused not on the genuineness of faith but on the applicant’s account of the events that are said to trigger the fear of persecution.
9. While there is, in my view, some force in the view that there are better ways of approaching this issue, it is well established that the Tribunal is entitled to take the approach it did. In my view, viewed as a whole, the Tribunal’s questioning of the applicant was not unfair and does not indicate any reasonable apprehension of bias. The applicant’s answers to the questions put to him bore on the adverse credibility finding made but were one of a number of factors bearing on that adverse credibility finding. The finding was clearly open to the Tribunal on the material before it.
10. It is also well-established that the Tribunal is entitled to make what use it considers appropriate of country information. That is a matter of opinion. The applicant has a different opinion concerning country information relating to the Chinese authority’s control of the internet. But the argument over that issue does not rise about a dispute over the merits of the tribunal decision. No jurisdictional error is apparent.
11. Both in this Court and before the Tribunal, in his post-hearing statutory declaration, the applicant asserted interpretation problems at the Tribunal hearing. The Tribunal considered the applicant’s claims and found that the standard of interpretation at the hearing had been adequate. There is no evidence before me to suggest otherwise. The applicant claimed that he could not afford to provide a transcript of the Tribunal hearing. That may be so but the fact is that there is no evidence before me to support his argument of interpretation difficulties. His argument was expressly considered by the Tribunal and rejected. There is no basis for me to conclude that the Tribunal was wrong.
12. Because the applicant is self-represented I have myself considered whether there is any other issue arising from the Tribunal’s decision that might give rise to an argument of jurisdictional error. At paragraphs 109 to 111 of its decision (CB 119-120) the Tribunal considered the applicant’s claim of having attended the Local Church in Sydney. The Tribunal disregarded that evidence, pursuant to s.91R(3) of the Migration Act.
13. There is a question in my mind flowing from the majority judgment of the High Court in Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [63] and [64] whether the Tribunal is required to make a finding on the evidentiary effect of evidence before making a ruling pursuant to s.91R(3) on whether it would disregard that evidence. The High Court said:
    • To this point discussion has centred upon the answer to the inquiry in par (b), about the motive of the person, in identifying the conduct which sub-s (3) intends to be included or excluded from consideration of a claim to fear persecution. From that viewpoint, engaging in conduct for the relevant motive will result in its exclusion. But the other reason for its exclusion relates to the quality of the conduct itself. Paragraph (b) itself elucidates this meaning of "conduct". The reason the conduct is to be excluded is that it would have the effect of strengthening the claim, if it were taken into account. The object of sub-s (3) is to deny that evidentiary effect. It requires that evidence of conduct not be applied for the purpose for which it was intended by the person, to strengthen that person's claim to refugee status where it would have that effect. So understood, sub-s (3) says nothing about evidence of conduct which would have the opposite effect, and is in fact adverse to the claim.
    • The approach of the Full Court was to regard sub-s (3) as engaged once the inquiry in par (b) was answered. This does not give sufficient weight to the underlying objective of sub-s (3). It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person's claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.
14. In the present case, the Tribunal, while it referred to the applicant’s motivation for his conduct in Australia, which it had accepted as a fact, made no finding on whether the evidentiary effect of that evidence would be to enhance his protection visa claims. A conclusion that the evidence would have a supportive effect may be inferred from the Tribunal’s reasons but, in my view, it would be better if the Tribunal’s finding was expressed.
15. Counsel for the Minister submitted that the High Court did not intend to impose some new obligation on the Tribunal to make a finding on the evidentiary effect of material for the purposes of s.91R(3) and on the present state of the authorities the question is an open one. In my view, while it does flow from the reasoning of the High Court at [63] and [64] that the Tribunal should determine that evidence to be disregarded would have a supportive effect, a failure to do so may be an error within jurisdiction because the Tribunal is not bound to take into account evidence which is detrimental to an applicant’s claim. It is required to disregard such evidence if it would support the claim if the sole purpose was to provide that support. In either case the Tribunal’s failure to find expressly that information is supportive of a claim before disregarding it is unlikely to affect the outcome. I conclude that while the Tribunal’s approach on this issue could have been clearer, no jurisdictional error is apparent.
16. I conclude that the Tribunal’s decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must accordingly be dismissed. I will so order.
17. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 February 2010

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[1]2 Yan v Gonzales [2006] USCA10 65; (2006) 438 F.3d 1249, 1252 (10th Circuit)