SZORR v Minister for Immigration & Anor [2011] FMCA 119 (25 January 2011)

Federal Magistrates Court of Australia

[Index] [Search] [Download] [Help]

---

SZORR v Minister for Immigration & Anor [2011] FMCA 119 (25 January 2011)

Last Updated: 2 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 119

MIGRATION – VISA – Protection Class XA) visa – application for review of decision of the Refugee Review Tribunal – citizen of China claiming well founded fear of persecution on the ground of religious belief – claim of membership of underground church – claim of breach of family planning laws – credibility issues – allegation of bias – no reviewable error.

Migration Act 1958 (Cth), ss.36, 91R, 430, 430A, 430D, 474, 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZLMK v Minister for Immigration [2008] FMCA 1372 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10

Applicant:

SZORR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2249 of 2010

Judgment of:

Scarlett FM

Hearing date:

25 January 2011

Date of Last Submission:

25 January 2011

Delivered at:

Sydney

Delivered on:

25 January 2011

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

No solicitor on the record

Counsel for the Respondents:

Mr Hughes

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2249 of 2010

SZORR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a citizen of the People’s Republic of China. She has applied to the Court for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 15th September 2010. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship, the First Respondent to this application, not to grant the Applicant a Protection (class XA) visa.
2. The Applicant asks the Court to review that decision. By her application, which was filed on 19th October 2010, the Applicant asks the Court to make orders, first in the nature of a writ of certiorari quashing the Tribunal decision, and, second, in the nature of mandamus, compelling the Tribunal to rehear and re-determine the matter according to law.
3. It has been made clear to the Applicant today that, in order for the Court to make the orders that she seeks, the Court would need to be satisfied that the Tribunal decision is affected by jurisdictional error. In her application, the Applicant has set out two grounds in which she says the Tribunal has made jurisdictional error:
   1. The RRT made inconsistent findings on the issue of whether the Applicant is a genuine Christian, as she claimed;
   2. The RRTs decision is affected by jurisdictional error as it applies country information in a selective and biased way.

Those are the grounds upon which the Applicant relies.

Background

4. The background to this matter is that the Applicant arrived in Australia on 10th December 2009. On 19th February 2010, she applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. With that application, she provided a statement in which she said that she was seeking protection in Australia so that she did not have to go back to China. The reasons that she gave are set out in that statement and are reproduced on pages 17 and 18 of the Court Book.
5. The Applicant said:
   • I could have lived happily with my family in China if there had not been problems due to my family’s religious belief. My family members belong to an underground house church. Instead of practising in church as appointed by the Chinese government, we only meet at church members’ homes. In my home town being a Christian is not unlawful. However the government requires Christians to be registered and to worship at specified churches.
   • We are not allowed to meet, worship or study Bible at home. Bibles, publications or video materials have to be approved by the government. If not approved, they would be treated as illegal materials. It is difficult to maintain underground practice. To avoid trouble, we do not have a leader. We organise meetings one by one in turn, and we change meeting place from time to time. We may have meeting at your home this week but will move to my home next week. Every weekend we will decide who is going to host our meeting next week.
   • In year 2002, while we were meeting at Xiao Ming Guo’s home, police broke in and smashed his furniture and took us to the police station where we were questioned. I was questioned for around two hours. They asked me who had hosted meeting before and I said I did not know. They pulled my hair and bumped my head onto the desk causing a lump and bleeding on my forehead. Xiao Ming Guo was detained for one day and one night because he provided meeting venue. My father-in-law offered money to get him released.
   • After the event we suspended our meeting for more than a year and gradually resumed in early 2004. In the Chinese new year of 2004 I was pregnant again by accident. It was supposed to be a good news but my family was in panic because of it. According to the one child policy we should go for an abortion but we are Christians. In our eyes abortion is killing. God has sent the child to us. Nobody has the right to take the child life. Other women were all forced to take abortion.
   • I then hid at my sister’s home at the Fuqing Town Centre until my child was born on 20 January 2005. We could not register the child’s household. The government required me to undertake tubal ligation. Every year the government undertakes checking on women’s pregnancy. If they find women who have not had tubal ligation they will take them from home. For this reason I did not sleep at home these years and instead slept at my video shop.
   • In the 2009 Chinese New Year we had a big gathering. Nearly all families attended the gathering and we recorded the gathering in a video CD. I brought the VCD to my shop to make more copies so that every family could have a copy. One day in March 2009 police broke into and ransacked my shop. They found those VCDs and sealed my shop. I was purchasing stock in Fuzhou and I received a phone call from my husband and was told not to return. Police went to my home to look for me once every few days so I had to keep hiding at my aunt’s house.
   • Through a friend I contacted a people smuggler known as “Glasses”. Under his arrangement I travelled from Fuzhou to Shenzhen on 3 December and then to Thailand on the 4th, to Macau on the 7th and then to Taiwan on the 9th. From Taiwan I boarded a plane to Brisbane, Australia and then travelled to Sydney on 10 December. I live at Hurstville now and I attend church meetings at Hurstville. When I contact my family in China, they always tell me not to go back home because the police are looking for me. So I hereby lodge this application for a protection visa.[1]
6. On 27th April 2010, the Department of Immigration and Citizenship wrote to the Applicant and invited her to attend a meeting with a case officer for an interview on 3rd May 2010. The Applicant attended the interview on that date. In the Protection (Class XA) visa decision record, the Minister’s delegate noted that the Applicant had arrived in Australia under a false identity, but gave her true name, date of birth and citizenship when she attended the interview.
7. The delegate of the Minister refused the appellation for a protection visa on 18th May 2010. In the decision record, the delegate stated:
   • I am not satisfied that the applicant has substantiated a claim of well-founded fear of persecution for the following reasons.
     • I found the applicant to be an unreliable witness. The applicant’s testimony appeared rehearsed and contrived, and I found significant elements not to be plausible. I formed the view that elements were exaggerated, omitted or fabricated in the belief that it would enhance the success of her application.
     • I find it significant that the applicant did not advise the Department in her written claims that she exited China through Hong Kong on her journey to Australia and that her passport in the false identity does not appear to have a Hong Kong exit stamp.
     • The applicant’s testimony regarding which church she went to in her village was confused and contradictory, I am not satisfied that the applicant’s testimony regarding the police action is plausible. In addition, country information does not support her claims that that if the Chinese government finds evidence of house church or underground church practice, their leader will be gaoled and other members will become subject to persecution at various degrees. Overall, I find the applicant’s testimony regarding her participation in illegal gatherings to be confused, contradictory and implausible, and I am not satisfied that the applicant participated in illegal gatherings and was found to have an incriminating VCD and is now wanted by the Chinese authorities because she is considered to be an organiser.
     • I note the applicant indicates she now attends regular church meetings in Hurstville. While the applicant has provided no evidence of this, there is nothing before me which would indicate that her church attendance in Australia would lead to convention-related persecution in the reasonably foreseeable future if she were to return to China.
     • At interview, the applicant confirmed that she had a problem with her second child because in the fourth month of her pregnancy there was joint police action and the applicant was arrested. I am not satisfied with the applicant’s claims in this regard for several reasons. Firstly, the applicant’s claims are not supported by country information cited above which indicates that, in general, Fujian has one of the least coercive family planning regimes in China. In addition, country information does not support the applicant’s claim that, for birth control, the authorities are only allowed to family houses and not rented properties. On the information before me, I am not satisfied that the applicant’s second child is not registered.[2]
8. The delegate found that the Applicant did not have a genuine fear of harm and that there was not a real chance of persecution occurring. The delegate, therefore, found that the Applicant’s fear of persecution as defined under the Refugees Convention was not well founded.

Application to the Refugee Review Tribunal

9. After her application was refused, the Applicant applied to the Refugee Review Tribunal for a review of that decision on 18th June 2010. On 30th June, the Tribunal wrote to her, inviting her to appear before the Tribunal for a hearing on 3rd August 2010, and advised that an interpreter in the Mandarin language would be provided.
10. The Applicant attended the hearing. After the hearing, the Tribunal wrote to the Applicant on 4th August 2010. The Tribunal’s letter invited her to provide further information and enclosed country information concerning Christians in Fujian and population control in Fujian. The letter told the Applicant that the information that she was to provide should be received by the Tribunal by 27th August 2010.
11. On 27th August, the Applicant’s migration agent wrote to the Tribunal by fax and asked for a two week extension of time.
12. On 10th September 2010, the Applicant’s migration agent provided a three and a half page submission commenting on the information that had been forwarded to the Applicant. On 15th September 2010, the Tribunal handed down its decision affirming the decision not to grant the Applicant a Protection (Class XA) visa.

The Refugee Review Tribunal Decision

13. In its Decision Record, the Tribunal set out the Applicant’s claims and the evidence before it in some detail, and that is set out at pages 94 through to 98 of the Court Book. The Tribunal set out country information at pages 99 through to 102 of the Court Book.
14. The Tribunal noted that, at the hearing, it put to her that it may not accept that she was a Christian. The decision record says this, at paragraph [38]:
    • The Tribunal put to her it may not accept she was Christian given that she was unable to talk about her alleged Bible studies in a way that was consistent with her alleged long Christian practice. The Tribunal indicated that even though she may know something about Christianity and may have attended church in Australia, she may have done so for the purpose of her refugee claim, and that the Tribunal may not consider her Australian practice for the purposes of her refugee claim.[3]
15. The Tribunal found that the Applicant was a Chinese national and noted her claims that she would be persecuted in the future because she had breached the family planning laws and had not paid the fine for her second child. It noted that she had become a Christian, and the local government came to her home and demanded her meetings to be cancelled immediately. The Tribunal then proceeded to examine the Applicant’s claim that she had become a Christian and said:
    • At hearing, the applicant was unable to describe any story that Jesus had told to other people and did not know that he had not told the story of Noah’s Ark. The Tribunal finds that even though the applicant displayed some knowledge of Christianity at hearing, she did not display a knowledge that is consistent with someone who was born into a Christian family and who had been reading the Bible on a regular basis in China. This means that the Tribunal does not accept that the applicant is a witness of truth.
16. The Tribunal also went on to find:
    • The Tribunal also finds that even though the applicant may have attended church in Australia, she has done so for the purpose of strengthening her refugee claim, and the Tribunal therefore has not considered her Australian practice for the purposes of her refugee claim.[4]
17. The Tribunal then considered whether the Applicant had breached the family planning laws and noted:
    • The Tribunal has a number of concerns with this evidence.
18. However, the Tribunal went on to find, at paragraph 53 of the decision:
    • Even if the Tribunal accepts that the applicant will be subject to family planning policies in China in the future, the Tribunal is not satisfied that this will occur for any convention reason and considers that the applicant will only be the subject of a law which applies generally to the Chinese population. The Tribunal is not satisfied that the family planning laws which apply generally to the population will be applied to the applicant selectively or in a discriminatory manner. Neither is the Tribunal satisfied that the family planning policies are discriminatory in its intent or impact.[5]
19. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in subsection 36(2)(a) for a protection visa. The Tribunal affirmed the decision not to grant the Applicant a protection visa.
20. The Applicant then applied to this Court on 19th October 2010 for review of that decision.

Application for Judicial Review

21. As I mentioned earlier, the Applicant relied on two grounds. The first ground is that the RRT made inconsistent findings on the issue of whether the Applicant is a genuine Christian as she claimed. The particulars of that claim are that the Tribunal Member told the Applicant orally during the hearing that she believed that the Applicant was a genuine Christian. However, in the decision dated 15th September 2010, the Tribunal found that the Applicant was not a genuine Christian who has been practising Christianity in China as alleged.
22. The Applicant’s second ground is that the RRT’s decision is affected by jurisdictional error as it applied country information in a selective and biased way. The particulars of that claim are:
    • There are country information suggesting religious tolerance in Fujian Province of China and there are also country information indicating there are reports of house churches being destroyed in China. In making the decision, the RRT only applied country information that is adverse to the applicant and failed to give sufficient consideration to country information that supports the applicant’s claims.
23. The Applicant filed an affidavit also on 19th October annexing a copy of the Tribunal decision and reiterating her claim that she had left China due to persecution by the Chinese government.
24. The First Respondent, the Minister for Immigration and Citizenship, filed a Response opposing the making of the orders sought and seeking that the application be dismissed with costs. On 20th January, the Minister’s lawyers filed a written submission answering the Applicant’s case in some detail. Counsel for the Minister, Mr Hughes, relied on that submission, as well as making a short oral submission to the Court.
25. In the submission, Mr Hughes noted that the Applicant had not challenged the Tribunal’s finding at paragraph [42] that the Applicant was not a witness of truth. That finding, he said, provided an independent basis for the Tribunal’s determination that the Applicant did not have a well-founded fear of persecution for a Convention reason for either of the two bases advanced by the Applicant. The Minister relies on the decision of the High Court of Australian in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[6] at 423.
26. Counsel for the Minister then examined the Applicant’s two grounds in some detail. As to ground 1, which was the claim that the Tribunal member told the Applicant orally during the hearing that she believed the Applicant was a genuine Christian, he submitted that this ground of review was without merit. The bases for that submission were:
    1. There is no basis for the contention that the Tribunal Member told the Applicant orally during the hearing that the Member believed that the Applicant was a genuine Christian. The Applicant bears the onus of proving that this occurred.
    2. Even if the Tribunal Member had told the Applicant orally during the hearing that she believed the Applicant was a genuine Christian, which was denied, any such statement could not amount to a decision within the meaning of the Act, because sections 430, 430A and 430D contemplate that the Tribunal makes only one decision on any application, which is either written or oral.
27. Turning to the second ground, which was a claim that country information was applied in a biased and selective way, it was submitted that there was no basis for that contention either. Reliance was placed on the decision of Lloyd-Jones FM in SZLMK v Minister for Immigration[7] at [22], where his Honour stated that an allegation of bad faith or bias must be proved other than by perusing the face of the record and that a claim of this nature necessitates proof of extreme circumstances. His Honour went on to say that it is a serious allegation that should not be made lightly.
28. The submission is that there was no proper evidence to support an assertion that the Tribunal was actually biased. As to any claim of apprehended bias, it was submitted there was nothing on the face of the decision to indicate that the Tribunal had a mind incapable of alteration, or that a fair-minded observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. Reference was made to Minister for Immigration and Multicultural Affairs v Jia[8] (2001) at 532, and Re Refugee Review Tribunal; Ex parte H[9].
29. It was also put that the use of the country information by the Tribunal is perfectly proper, and the Minister relied on the decision of the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural Affairs[10] at [11]. In that decision, it was noted that the Court had said that the choice and the assessment of the weight of material being country information were matters for the Tribunal and the Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
30. It was submitted that the Tribunal’s treatment of country information that the assertion that the Tribunal conducted itself in a biased way was misconceived; the Tribunal was justified in preferring country information that was specific to Fujian Province over the general country information provided by the applicant; and the way in which the Tribunal uses country information is a matter for the Tribunal and is not amenable to review in this court.
31. The Applicant attended Court and made oral submissions. She reiterated her claim that the Tribunal Member said that she believed that the Applicant was a Christian. The Applicant said that she did suffer persecution and that if she had not been persecuted she would not have left China. She also claimed that she was not familiar with the procedure of the Refugee Review Tribunal and found the procedure stressful and feared that she may have not done justice to herself in the way she answered the questions.
32. She also reiterated her claim that the Tribunal had applied country information selectively against her. The Applicant also put that she felt insulted by the suggestion that she only went to church in Australia to strengthen her claim to be a refugee. She reiterated in a final submission that the Member had told her at the hearing that she believed that she was a Christian.
33. In oral submission, Mr Hughes of Counsel, for the Minister, told the Court that the Applicant had not met the burden of proof in demonstrating what she said the Tribunal had said, and that the Applicant’s submissions rose no higher than saying that the Tribunal had said to her, “If you knew the answer, why did you not say so earlier?”
34. As to the Tribunal’s finding that she only went to church in Australia as a means of showing that she was a Christian for the purpose of strengthening her refugee claim, it was put that the Tribunal was obliged to disregard the Applicant’s conduct in Australia and that subsection 91R(3) of the Act, unless it was satisfied that the Applicant did not engage in this action for the purpose of strengthening her claims.

Conclusions

35. In considering all of this material, the Applicant’s first ground claims that the Tribunal made inconsistent findings about whether she was a genuine Christian or not. The Applicant said that the Tribunal Member told her at the hearing that she believed that she was a genuine Christian, but handed down a decision on 15th September 2010 saying the Tribunal did not believe that she was a genuine Christian.
36. Of course, the first thing to be made clear is that it is the Tribunal’s decision as set out in the decision record of 15th September 2010 that is the only effective decision. Whatever is said in the Tribunal hearing is not a decision as such. It is clear from the Tribunal decision record at paragraph [38], which appears on page 98 of the Court Book, that the Tribunal said that it put to her at the hearing that it may not accept that she was Christian, given that she was unable to talk about her alleged Bible studies in a way that was consistent with her alleged long Christian practice.
37. The Applicant says that the Tribunal said something else, but there is nothing other than the Applicant’s assertion which would support that claim – for instance, no transcript of the Tribunal hearing was tendered. But, in any event, as I said, there is only one Tribunal decision which is the written decision of 15th September 2010. The first ground does not succeed.
38. The second ground alleges bias in a selective reliance on Independent Country Information. Bias is a serious allegation because it contains the implication of fault on the part of the decision-maker. It should not be lightly made, and it must be strictly alleged and proved. It is well established, as has been put to the Court, that bias cannot be, in the normal course of proceedings, inferred from the Tribunal’s reasons for decision on their face.
39. There is no evidence of bias. The Tribunal was entitled to rely on country information and give such weight to country information as it thought proper (see NAHI v Minister for Immigration and Multicultural Affairs[11] at [11], [13] and [14]. In this case, it was put to the Applicant at the hearing that the Tribunal may not accept her because country information said differently, and it is noteworthy that after the hearing the Tribunal sent that country information to the Applicant for her comment.
40. The Applicant was given an extension of time to provide comments and, through her migration agent, provided comments in reply to that country information. The Applicant’s migration agent’s submission of 10th September 2010 appears in the Court Book at pages 86 to 89. It is clear that the Tribunal considered that information because it referred to the submission and, indeed, quoted from it at paragraph 44 in the findings and reasons[12].
41. In my view, there is no basis for a finding that the Tribunal showed either actual bias or apprehended bias in selectively applying country information. The way in which country information was used by the Tribunal was entirely within the jurisdiction of the Tribunal. No jurisdictional error is demonstrated in respect of this ground.
42. Both of the Applicant’s grounds alleging jurisdictional error have not been made out. I am mindful of the fact that the Applicant is not legally represented, and I have read through the Tribunal decision in an effort to ascertain whether any other arguable case of jurisdictional error can be made out. I am unable to discern any.
43. The Tribunal invited the Applicant to a hearing, and she attended the hearing and gave evidence and made submissions. After the hearing, the Tribunal put relevant country information to the Applicant for comment, and gave the applicant a significant amount of time to provide that comment. When the comment was provided, the Tribunal took it into consideration but did not accept it. There is no jurisdictional error.
44. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision. As it is a privative clause decision, under section 474 of the Migration Act, it is not subject to challenge by way of the writs of certiorari or mandamus which the Applicant seeks. It follows, therefore, that the application must be dismissed. I will consider the question of costs.
45. The application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 1 March 2011

---

[1] See Court Book pages 17 and 18
[2] See Court Book 59-62
[3] Court Book page 98 at [38]
[4] Court Book 108 at [48]-[49]
[5] Court Book 109
[6] (2000) 168 ALR 407
[7] [2008] FMCA 1372
[8] (2001) 205 CLR 507
[9] (2001) 179 ALR 425
[10] [2004] FCAFC 10
[11] supra
[12] See Court Book at 108