SZOPX v Minister for Immigration & Anor [2011] FMCA 101 (18 February 2011)

Federal Magistrates Court of Australia

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SZOPX v Minister for Immigration & Anor [2011] FMCA 101 (18 February 2011)

Last Updated: 1 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPX v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 101

MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Catholic – disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), s.91R(3)

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant:

SZOPX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2021 of 2010

Judgment of:

Smith FM

Hearing date:

18 February 2011

Delivered at:

Sydney

Delivered on:

18 February 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Hooper

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $3,700.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2021 of 2010

SZOPX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant lodged an application for a protection visa on 13 January 2010, assisted by a migration agent, Ms Weiming Qian. In her protection visa she claimed to have entered Australia using a bogus passport in a different name in December 2009. She presented a Chinese identity document for the name in which she made the visa application, and this has been accepted as a genuine document.
2. A statement attached to the visa application set out a history in which the applicant claimed to have suffered persecution as a member of an underground Catholic church in China. She said that she had been introduced to this church by her grandmother, after receiving assistance with an injured foot. Despite her mother’s disapproval, she went secretly to the church, and in 1995 she was baptised in a home ceremony.
3. She claimed that her grandmother was arrested in 1998 for participating in illegal gatherings and was detained. In July 2006, the applicant was herself detained with 10 church members, and was threatened and forced to write statements agreeing to give up religion, following a raid on their home church. She was released after paying a fine, after being detained for 15 days.
4. She still went to gatherings, and she was again arrested in another raid in April 2009, and was detained for 15 days. She was beaten up, and after being released she was required to report to the police. Her passport was confiscated, and the police often came to check up on her and her family. An agent then helped her to leave the country and come to Australia. She said: “soon afterwards I found a Chinese Catholic church”.
5. Some documents were tendered in purported corroboration of her being a member of an underground church in China and having been baptised, and three photographs were shown to the Department, which the applicant said had been taken in a visit to a church in Australia in March 2010.
6. A delegate interviewed the applicant on 29 March 2010, and made a decision refusing the visa on 6 April 2010. The delegate had some concerns about the applicant’s true identity, but was prepared to accept the identity card details as her true identity. The delegate was not satisfied that the applicant had substantiated a claim of well-founded fear of persecution. He thought that she had exaggerated her religious observance, in particular, as to her attendances at church in Australia. The delegate said that the applicant provided no evidence of being persecuted, and referred to country information suggesting that worship in an underground church in Fujian province in China was not “of itself” sufficient to bring that person to the adverse attention of Chinese authorities.
7. The applicant applied for review assisted by her migration agent. She attended a hearing of the Tribunal, which was rescheduled and held on 26 July 2010. She was later sent the recording of the hearing. Neither party has tendered a transcript, and I rely on the description of the hearing given by the Tribunal.
8. The applicant gave the Tribunal evidence about her Catholic practices in China and her claims to have been detained. She gave inconsistent evidence about the two detentions referred to in her statement of claims, suggesting that the first detention had occurred in 1995.
9. The applicant brought a witness to the hearing who claimed to be the applicant’s sister, although such a person had not been referred to in the relevant part of the visa application. The witness gave some corroborative evidence, parts of which were inconsistent with the applicant’s evidence. The Tribunal discussed with the applicant and her witness whether the applicant had been baptised, and discussed the purported certificate of baptism.
10. At the end of the hearing, the Tribunal said that it raised with the applicant a number of inconsistencies in the documentary and oral evidence before it, and allowed the applicant to respond. It also raised a concern, which the delegate had referred to, that there was an inconsistency between the applicant’s evidence that she first found a Christian church in Sydney in January 2010, with her claims to have started religious observance “soon after” arriving in Australia.
11. The Tribunal made a decision on 13 August 2010, affirming the delegate’s decision. In its “Findings and Reasons”, the Tribunal referred to various concerns about the applicant’s evidence, and it said:
    • there have been a number of inconsistencies, omissions and conflicts in the information provided by the applicant, as a result of which the Tribunal is of the view that the applicant is not a credible or reliable witness.
12. The Tribunal accepted that the applicant had shown some knowledge of the Catholic religion which suggested personal rather than theoretical knowledge of the church, and was prepared to accept that she had a Catholic grandmother and had been exposed to “Catholic rites” through her since childhood. The Tribunal was not, however, satisfied that the applicant herself was a practising or observing Catholic in China, as she claimed.
13. It explained various concerns affecting the reliability of the applicant and her sister as credible witnesses. In my opinion, the various points the Tribunal made were well open to the Tribunal on the evidence before it. It was also open to the Tribunal to conclude that it was “not prepared to rely on the applicant’s evidence alone in determining whether her claims are genuine”.
14. The Tribunal then assessed the various documents which had been presented in purported corroboration, and identified what, in my opinion, were valid reasons for placing no reliance on them.
15. The Tribunal then made a series of findings about the applicant’s general and detailed claims, upon which she claimed to fear persecution for her religious opinions and practices. The Tribunal indicated that it was “not satisfied” as to some aspects, and it made positive findings that some of her claims had not occurred, including findings that she had not been baptised, that she had not been detained, and that she had not received any adverse attention from the authorities.
16. There are some infelicities in the manner in which the Tribunal expressed some of these findings, which I discussed with the representative of the Minister. However, in my opinion, reading the Tribunal’s decision in its entirety in accordance with the direction in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 277 and 291, its reasoning discloses no material flaw amounting to jurisdictional error. It was well open, in my opinion, on the material before the Tribunal for it to be unpersuaded by the credibility of the applicant’s claims and her evidence, and to have made its particular adverse findings as to what had happened in China.
17. The Tribunal then addressed the significance of the applicant’s church attendance in Australia. On the evidence, it found that she had attended an unnamed church in Hurstville with her sister since about January or February 2010. It found, however, that she had engaged in that practice “for the purpose of strengthening her claim to be a refugee”. It therefore was bound to disregard that conduct by s.91R(3) of the Migration Act 1958 (Cth).
18. The Tribunal found that the applicant would not practise as a Catholic on return to China, and that she would not experience serious harm, or face a real chance of persecution for a Convention-based reason.
19. The applicant now asks the Court to set aside the decision and to remit the matter to the Tribunal for further consideration. I can only make these orders if I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether she should be given permission to stay in Australia.
20. The grounds of the application are set out in the application:
    • 1. RRT did not consider my application and evidence with fair.
    • 2. I am Catholic and was persecuted in China. I fear to go back to China.
    • 3. RRT low assess my risk to return to China.
21. These have not been explained in terms of jurisdictional error or otherwise in any amended application or written or oral submission made to me today.
22. The applicant’s submissions today essentially were to maintain her claim to fear persecution, and to assert that she had been truthful about her claims and should have been believed by the Tribunal. However, these submissions asked the Court itself to address the merits of the matter afresh, and that is not its function.
23. Unaided by any submission, I am unable to identify any element of unfairness which might be able to be characterised as jurisdictional error, whether by reason of the Tribunal failing to follow required procedures, or a failure genuinely to decide the matter upon reasonable and logical grounds based on the evidence.
24. Grounds 2 and 3 I find impossible to translate into jurisdictional error.
25. For the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error, and I must therefore dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 28 February 2011