SZOWI v Minister for Immigration & Anor [2011] FMCA 239 (4 April 2011)

Federal Magistrates Court of Australia

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

---

SZOWI v Minister for Immigration & Anor [2011] FMCA 239 (4 April 2011)

Last Updated: 14 April 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWI v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 239

MIGRATION – RRT decision – chinese applicant claiming persecution as local church activist – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.424A

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122 Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; (2010) 187 FCR 109

Applicant:

SZOWI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2739 of 2010

Judgment of:

Smith FM

Hearing date:

4 April 2011

Delivered at:

Sydney

Delivered on:

4 April 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms L Buchanan

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 $4,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2739 of 2010

SZOWI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant filed an application for a protection visa on 26 February 2010, assisted by a migration agent, Mr Harry Huang of Pricilla International Co. Pty Ltd. In her application she claimed to have the identity of a young woman raised in a village in the area of “Longtian Town, Fuqing City, Fujian province, the Peoples’ Republic of China”, and she submitted Chinese identity documents to show this. She also claimed that she had entered Australia in January 2010 on a passport in a different name, containing a visitor’s visa for Australia, in which her photograph had been substituted. Investigations within the Department of Immigration confirmed that the passport was fraudulent and that the identity documents appeared to be authentic.
2. A statement attached to the protection visa application narrated a history upon which the applicant claimed to fear persecution if she returned to China. She said that she had graduated from school in 2005, and in January 2007 she obtained a job at a clothing shop. She also helped obtain a job for her brother in the shop. The owner of the shop evangelised to her and her brother, and she joined “the Local Church (aka the Shouters)”, in which the shop owner was “a key member of the Local Church, and she was a responsible church sister of a secret gathering group”.
3. After the shop was closed in January 2008, the applicant travelled with the owner to a different province, where a new clothing shop was opened in July 2008. The people running the shop “were Christians in the Local Church. Therefore we quickly established a secret gathering group” in that city. She said “we secretly evangelised to the local people and developed our secret gathering group in the (area). Eventually, the secret gathering group was enlarged to over 60 members” including “a youth subgroup of which I was in charge”.
4. Her brother, meanwhile, had obtained a job in Beijing, where he “also actively evangelised to the local people”. The applicant said that her brother was forced to flee, when the leaders of his group were arrested in September 2009. The applicant herself was then arrested with other leaders of her church. She was subject to persecution and was physically and mentally mistreated and tortured, until being released after three months in late December 2009. She said that she was already on the “blacklist” of the PSB, and that she hid and then left China on a passport in another person’s name.
5. As well as her identity documents, the applicant later submitted to the Tribunal three official documents concerning her release from detention, her release on bail, and a summons to attend an interrogation. She also submitted a letter on the letterhead of the Local Church in Sydney. It was signed by two persons and stated:
   • This is to confirm that (the applicant) started coming to the church meeting 3 months ago. Please do not hesitate to contact Tony Cheah on (mobile number) should you have any further enquiry.
6. The applicant attended an interview by the delegate on 17 May 2010, and the delegate made a decision refusing the visa on 9 August 2010. The delegate said that he was prepared to accept that the applicant “is a Christian” and that she had been attending the Local Church in Sydney. However, he was not satisfied in that she had substantiated a claim of well-founded fear, significantly because she had not provided satisfactory evidence that she had worked in a province away from her home town, notwithstanding submitting other documents. The delegate was also not persuaded that she had ever been involved in evangelising to strangers.
7. The applicant appealed to the Refugee Review Tribunal, where she was further assisted by her agent.
8. She attended a hearing accompanied by her agent on 18 October 2010. A transcript of the Tribunal’s hearing is not in evidence, although the applicant’s agent was given a copy of the recording at the end of the hearing. I have no reason not to accept the Tribunal’s description as an accurate summary.
9. According to its description, the Tribunal questioned the applicant about the contents of her visa statement and put a number of matters to her for response. This included a possible concern that the Chinese documents presented to the Department might be fraudulent.
10. It also included discussing “the situation in Longtian and Fujian which indicates that there is a high level of tolerance there and that in fact there is a large church which is presently in Longtian and operates legally”. The applicant “replied that she was not aware of that church”. According to the Tribunal she also did not respond to questions asking her “what Christian churches there were in the area”.
11. Following the hearing the applicant’s agent made a submission addressing some of the matters which had been raised at the hearing. This included challenging the Tribunal’s information about a 4000 people church in Longtian. It was submitted that there was no evidence of this and that a:
    • 4000–people church must be a very big church, which could be easily found from Google Maps. I could locate the Christianity Zhentang Gospel Church and “Catholic Mission” on the map (Appendix E), but, I really could not find so-called the Local Church’s “4000-people church”.

Three printouts from Google Maps Australia were attached.

12. The Tribunal made a decision on 30 November 2010. It affirmed the delegate’s decision.
13. In its findings and reasons the Tribunal said that it “does not believe that the applicant has presented an entirely truthful account of her circumstances in China”. It discussed a number of weaknesses in her evidence about moving to a different province, and summarised its conclusions:
    • The Tribunal does not accept that the applicant was detained in (named town) or that she was proselytizing in (named town). In coming to this conclusion the Tribunal has considered that the applicant said that the temporary identification card was easy to obtain. This is in contradiction of Independent Country Information. She could not adequately explain why she was able to provide a PRC identity card and other official documents to the Tribunal and Department but could not provide the temporary identity permit she claimed she had. The Tribunal does not accept that the police in (named town) posted all the documents to her father including her identity card. She further could not give a cogent and convincing account of her proselytizing, her leadership role or why the police would detain her. She gave confusing evidence in relation to her age when she was detained and important dates around her family
14. The Tribunal then referred to further difficulties with the applicant’s evidence, including some confusing evidence in relation to her own age.
15. The Tribunal considered the purported official documents submitted by the applicant and said that it was “not satisfied that the documents provided are authentic”. The Tribunal said it did not accept that the applicant had relocated to another province from Fujian. It said that it followed that it found that she had not participated in church activities in that province and was not arrested or detained there.
16. The Tribunal said it had considered the applicant’s evidence about her church attendances in China. It said:
    • 100. The Tribunal accepts that the applicant has acquired some knowledge of Christianity and represents herself to the Tribunal as a Christian. The Tribunal did not seek to test the applicant’s knowledge of Christianity. The Tribunal notes that she was able to speak with some confidence of gatherings where hymns were sung, readings held and calling out loud the Lord’s name. She claimed she and her brother attended local gatherings from March 2007 and were baptised in August 2007. She stated that she could not provide any Baptismal Certificate as “to the best of her knowledge, the Local Church has never ever issued any documents such as Certificate of Baptism”. She claimed that she was a major activist in the Local Church and regular participant. The Tribunal is concerned that the applicant who presented an authenticated Identity Card which indicates she comes from Longtian stated that she was not aware of any large churches in the area. When the applicant indicated that there were no Local Churches in Longtian the Tribunal asked her to give it an example of any churches in her area. She could not do so and reverted to reciting her statement. When Independent Country Information was put to her about the large churches which operate legally as Local Churches she stated it was not true. She provided a statement after the hearing in which she stated that she did not accept that there was a large church complex in Longtian. She stated that there is no evidence that the Local Church has registered in her home town. She then stated that she could not find it on a Google search. The Tribunal sought clarification on this issue. The clarification was that the large church in Longtian was not a Local Church however there was large Local Churches in villages. The applicant stated she had no knowledge of any churches in her area. She claimed they did not show on a Google map. Given the censorship of Google by the Chinese authorities the Tribunal does not place weight on any map supplied by Google. The Tribunal prefers the Independent Country Information above. The Tribunal does not accept that someone who claims to be a major activist who is deeply involved in the Local Church would not be aware of any large premises or complexes that claim to be Local Church in their local area. The Tribunal accepts the more recent Country Information above which states that the 4000 seats capacity hall located in Longtian city town centre does not belong to the local church. It belongs to another Christian group called “Yuhuichu” (transliterated The Callers). However there are halls in various villages in the Longtian district, some large and some small, the largest hall with a capacity of 1000 seating. The Tribunal would expect that someone who claims to be as involved as the applicant is in the Local Church would have been able to discuss such large halls as one with 1000 seating in her local area.
17. The Tribunal concluded that it did “not accept that the applicant is a committed Christian or a member of the Local Church”.
18. The Tribunal considered the applicant’s evidence about her brother, and identified inconsistency whether he had escaped overseas or was still in hiding in China. The Tribunal did not accept her evidence relating to her relationship with her brother and his Christianity, nor that she was on a blacklist because of that association.
19. The Tribunal referred to the letter showing attendance at the Local Church in Sydney:
    • At the hearing the applicant indicated that she wished to rely on the documents on the Department file which she had already provided. She provided a simple form letter from the Local Church in Sydney which is dated 15 May 2010 and states that she had attended there for three months. The letter did not go into any detail. It was just over two lines long. It did not state that the applicant was a member of the Local Church in Sydney just simply that she had started to attend. The Tribunal has found that the applicant is not a member of the Local Church. The Tribunal finds that if the applicant attended church, or other church activities, it was to strengthen her claim for refugee status. As the Tribunal is not satisfied that the applicant’s conduct was otherwise than for the purpose of strengthening her claim to be a refugee under the Refugees Convention it must disregard her conduct in Australia as required by section 91R(3) of the Act.
20. The Tribunal accepted that the applicant lived in Longtian Town, Fujian, and referred to country information about the extent of freedom to participate in religious activity in China and in the applicant’s area. It found that she was not a committed Christian nor had been a member of, or in a leadership role, with the underground church called the “Shouters”. It said that it was “not satisfied that she was at risk of persecution because of her claimed relationship or implied connection with her brother, family or underground Christians.”
21. The applicant now applies to the Court to set aside the Tribunal’s decision and to remit the matter for further hearing. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
22. The grounds of her application are found in her original application:
    • 1. The Tribunal has made a completely incorrect finding in relation to my active involvement in the Local Church, which has been regarded as the “Evil Cult” by the Chinese government.
    • 2. The Tribunal’s decision is illogical, unreasonable, and particularly unfair; and the Tribunal failed to take a genuine attempt to look at my evidence impartially with an independent view.
    • 3. The Tribunal failed to comply with her obligation under s.424A(1) of the Act.
23. These arguments have been explained and a further contention made in a written submission filed shortly before the hearing. The applicant made further oral submissions today, but it appeared to me that her submissions did not raise any new or additional arguments.
24. In her written submissions, there are various challenges to the merits of the Tribunal’s decision in support of grounds 1 and 2, but in my view these challenges do not amount to more than challenges to the merits of the Tribunal’s conclusions which were open to it. I do not consider that they have identified any jurisdictional error.
25. In relation to the allegation of breach of s.424A(1) of the Migration Act, the applicant’s written submission argues that the Tribunal should have put to the applicant its conclusions concerning the weight to be given to the Google Maps supplied by the applicant. She also argues that it should have invited comment on the “independent country information” which the Tribunal preferred, when accepting that there were a number of large church halls used by “Shouters” in the applicant’s area. The Tribunal had earlier set that information out in its statement of reasons:
    • On 17 November 2010, an Elder of the Church in Melbourne provided the following advice:
      • Concerning your queries:
      • 1. The 4000 seats capacity hall located in Longtian city town centre does not belong to the local church.
      • 2. It belong to another Christian group (protestant??) - called “Yuhuichu” (tranliterated The Callers). I believes it is registered with the government.
      • 3. There is no hall for the local church members in Longtian city town centre - they meet in the home of a member. However there are halls in various villages in the Longtian district - some large and some small, the largest hall with a capacity of 1000 seat would be in the village of (named village).
26. In my opinion, the Tribunal’s statement of reasons does not reveal any breach of s.424A(1) in relation to its reasoning about the existence of large halls used by Shouters in the applicant’s area, nor in its giving no weight to the maps submitted by the applicant. In truth, those maps only showed two other churches, and the Tribunal was invited to assume the correctness of broader searches showing no other churches. In any event, it appears to me that it was open to the Tribunal to prefer the information it had recently acquired.
27. That information clearly, in my opinion, fell within s.424A(3)(a), and was therefore not obliged to be further put to the applicant. The general topic had, in my opinion, been fairly canvassed with the applicant at the hearing. Neither s.424A(1), nor general concepts of fairness, required the Tribunal to go back to the applicant or her agent to discuss the additional general information which it located, nor its ultimate reasoning which relied on that information.
28. I can detect nothing illogical or unreasonable in the Tribunal’s reasoning in its discussion of this matter, extracted above, which might evidence jurisdictional error based on irrationality and the principles recently discussed in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; (2010) 187 FCR 109, MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 and Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122.
29. The other area of submission developed in the applicant’s written submissions concerned the Tribunal’s treatment of the letter submitted by the applicant on the letterhead of the Local Church in Sydney. I have extracted the Tribunal’s reasoning above. The applicant submitted that the Tribunal treated parts of the letter adversely, in particular, when noting that it did not state that the applicant was a member of the Church. The applicant argued that the Tribunal should have put this to her, and given her a further opportunity to respond in writing. She also argued that it should have investigated the information in the letter further, by interviewing people or allowing the applicant to call a witness.
30. However, in my opinion none of these contentions exposes any jurisdictional error on the part of the Tribunal. The contents of the letter were expressly excluded from the ambit of duties under s.424A(1) by s.424A(3)(ba). Moreover, the challenges to the Tribunal’s reasoning concern its thought processes in relation to the document submitted by the applicant, and those thought processes were not subject to any obligation to invite written comment on them.
31. The Tribunal’s reasoning about the letter was clearly rational and open to it. The Tribunal was not obliged to conduct any further investigations as to the applicant’s attendances at the Local Church in Sydney, particularly where there is uncertainty as to what that investigation might have elicited (cf Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [1], Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [1], [20], [86]). The applicant had the opportunity to call witnesses at the hearing, and the Tribunal was not obliged to appoint a second hearing for that purpose.
32. The applicant’s written submission raises a further ground of review that:
    • The Tribunal’s decision has included a reasonable apprehension of bias.

The only argument in support of that contention is that the Tribunal’s reasoning discloses inconsistency, because on the one hand the Tribunal had found that the applicant was not “a committed Christian” while also having found that she “has acquired some knowledge of Christianity”.

33. However, the two findings manifestly are not logically inconsistent. The argument seeking to suggest bias evidenced in the reasoning of the Tribunal is therefore flawed at its foundation. It is also flawed by reason of the absence of any evidence in the conduct of the proceedings prior to the Tribunal making its decision, which might give rise to the relevant apprehension of bias (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, and note Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [15], [18] and [26], also SZJSS at [44]).
34. After considering all the arguments made by the applicant in her written submissions and oral submissions today, I am not persuaded that she has identified any jurisdictional error affecting the Tribunal’s decision. I must therefore dismiss the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 13 April 2011