SZOUU v Minister for Immigration & Anor [2011] FMCA 78 (9 February 2011)

Federal Magistrates Court of Australia

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SZOUU v Minister for Immigration & Anor [2011] FMCA 78 (9 February 2011)

Last Updated: 16 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 78

MIGRATION – RRT decision – Chinese applicant claiming persecution as underground Christian – claims disbelieved by Tribunal – findings open to the Tribunal on the evidence provided – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant:

SZOUU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2571 of 2010

Judgment of:

Smith FM

Hearing date:

9 February 2011

Delivered at:

Sydney

Delivered on:

9 February 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2571 of 2010

SZOUU

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 April 2008 on a student guardian visa in relation to his son, who had arrived not long before him. Both of their visas were cancelled in July 2010, and they were detained for breach of ‘no work’ conditions. The applicant’s son made a separate protection visa application, but how it was determined does not appear in the papers before me.
2. The applicant, while in Villawood Immigration Detention Centre, was given legal assistance and lodged a protection visa application on 3 August 2010. A statutory declaration set out a history upon which he claimed to fear persecution for a reason covered by the Refugees Convention if he returned to China. His claim was that he would: “be arrested and detained because of my active involvement with the underground Catholic Church in China”.
3. The applicant claimed to have been introduced to that church and to the Christian religion by his wife when he married in 1991, their son being born the following year. He said that his wife and her parents were devout Catholics, and his parents-in-law suffered arrest and mistreatment for their active Christian work in 1993. He and his wife themselves established a church network in their own home, and he was seriously injured in a police raid on their home. Other people were arrested in that incident.
4. The applicant was absent from home, working on construction sites periodically, but the police monitored his wife’s parents. His wife moved to another location, and commenced secret gatherings in a shop which she opened with a church sister. Other friends disappeared, and he and his wife were “increasingly concerned for our safety” and decided to send the son overseas. His statement said “my wife found someone who arranged a passport for herself and our son”, but that she “decided she was not going to be able to be granted a visa or passport because her parents were known to police for their church activities”. They then decided that the applicant should accompany the son overseas.
5. His statement claimed that “since the end of 2008 my wife has been on the run because the police know of her Catholic faith and practice”. It claimed that his wife’s business partner was arrested at the shop, and the wife has been constantly moving and had not returned home. He claimed that “soon after I arrived in Australia I started attending mass and prayer gatherings on a regular basis” and that if he returned to China:
   • I fear I will be detained, probably sent to prison...I am afraid that if the police can’t find my wife to arrest her, they will try to get to my wife through me and my son.

No corroboration of these claims was provided to the Department of Immigration.

6. A delegate interviewed the applicant, before making a decision on 10 September 2010 to refuse the visa application. The delegate said that he was not “convinced that he is a practicing Catholic as he claims”. The delegate noted the applicant’s admission that he had never been baptised nor received any other sacraments, and said that he showed a lack of knowledge about the Catholic Church and some basic elements of Christianity. The delegate thought that the applicant’s delays in departing China contradicted his claims, and that he would have lodged his application for a protection visa immediately upon, or at least soon after, his arrival in Australia if he truly feared being harmed upon return to China. The delegate said that he was “prepared to accept that his wife may be a devout Catholic who was involved in Catholic gatherings”, but thought that the applicant himself would not be involved in any underground Catholic gatherings if he returned, and that he could avoid a perceived affiliation with his wife by residing elsewhere, as he had done for much of his marriage.
7. The applicant appealed to the Tribunal, and was further assisted by the assigned solicitor. He attended a hearing of the Tribunal on 11 October 2010. A transcript of the hearing is not in evidence. The Tribunal gave a fairly detailed description of the three hour hearing in its statement of reasons, and I accept its description.
8. Prior to the hearing, the Tribunal invited the applicant in writing to comment upon a number of matters, which he was told might cause the Tribunal to reject his credibility and his claims. These concerned his delays in using the visa that had been granted in China, and in applying for protection, as well as his failure to make any refugee claims when first interviewed by Department staff in 2010, and some of his responses to questions asked by the delegate. The applicant’s solicitor forwarded brief responses to these matters prior to the hearing.
9. In the course of the hearing, the Tribunal discussed with the applicant some photographs and untranslated Chinese registration documents which the applicant tendered as corroboration of his claims. In particular, the applicant drew attention to the contents of his household registration, which he claimed stated that his wife was a Catholic and also showed that she had not been registered as a member of the household until many years after their marriage. The applicant claimed that this corroborated his claims that she had incurred the displeasure of the Chinese authorities over the whole period of their marriage by reason of her religion.
10. The Tribunal explored his claims as to their history in China, his activities in Australia, and his involvement in the Catholic Church in China and Australia. It invited the applicant to explain the deficiencies in his knowledge about the Catholic faith shown in his interview with the delegate, and his admitted delays in starting to go to church in Australia.
11. According to the Tribunal, at the end of the hearing:
    • the Tribunal informed the applicant that would have to consider whether he has been truthful in his evidence and whether it would accept his claims. The Tribunal sought the applicant’s comments. The applicant said that if he was not persecuted by the Chinese government, how can the household register be explained and why would he stay in Australia and leave his wife behind. He always wanted to be together with his wife.
12. It appears to me that in the course of the hearing and, indeed, in the previous written invitation for comment, the applicant was under notice that the Tribunal was considering the credibility of his entire claimed history of commitment to the Catholic Church, including his claimed association with a wife who was being persecuted by authorities for her support of the Catholic Church. The applicant’s tender of his corroborative documents appears to show that he was aware that the Tribunal might not accept that even his wife was a persecuted member of that Church.
13. After the hearing, and shortly before the Tribunal published its decision, a translation of a statement by the applicant’s son was forwarded to the Tribunal. The applicant’s solicitors informed the Tribunal that “the attached document has been prepared without our assistance and we are no longer acting for the applicant”. The document is headed “Answers to Concerns Raised by the RRT”, and largely narrates the claimed history which had been previously given to the Department and to the Tribunal, with some further reference to matters which had appeared to have concerned the Tribunal in the course of the hearing.
14. The Tribunal did not, in its statement of reasons, discuss the son’s statement in any detail, but it said:
    • 61. As noted above, the applicant’s son made a separate application for the visa. On 19 October 2010 the Tribunal received a submission from the applicant’s son relating to the matters described by the applicant. The applicant’s son provided a substantially similar account of events as the applicant. The Tribunal acknowledges that evidence and the fact that the applicant’s son has confirmed the events described by the applicant. However, given that the son’s claims rely on his father, the Tribunal does not consider the son to be a disinterested party. The son’s evidence does not overcome the Tribunal’s concerns noted above.
15. In its findings and reasons, the Tribunal indicated at the commencement that it was:
    • most concerned about the significant delay in the applicant’s application for the protection visa and the fact that he had only made that application after he was detained.

It explained this concern, and why it did not accept explanations which had been given by the applicant. It noted that he had been active in Australia in relation to obtaining work, opening bank accounts, finding accommodation and other matters, and the Tribunal did not accept his claimed explanations for failing to make inquiries about protection. It similarly did not accept his explanations that he was unable to find a church in Australia for a long time.

16. The Tribunal then identified “a number of other concerns with the applicant’s evidence”, and discussed these in detail. They included matters which appear to have caused the Tribunal not to accept that either the applicant or his wife were committed and active members of the underground Catholic Church in China.
17. The Tribunal addressed the applicant’s argument that his claims were corroborated by the absence of his wife on the household registration until recently. The Tribunal appears to have thought that an explanation for the absence of the wife on the household registration was the fact that they had married when she was below the marriageable age, and that they had only more recently seen a necessity to have her registered on the household registration. It thought there were inconsistencies in the claims, as to whether the wife was or was not known to the authorities to have been an active underground church member, whether she incurred official displeasure and persecution, and at what time that occurred.
18. The Tribunal also said that it had concerns with the limited knowledge of Catholicism that the applicant had displayed at his interview with the delegate, and it said that he could be expected to have had a deeper knowledge and a greater level of participation in Catholic practices. It gave account to his lack of education and other personal factors, but noted that:
    • It is the applicant himself who claims to have had significant involvement with the Catholic Church in China and he must, in the Tribunal’s view, have certain knowledge flowing from such involvement.

The matters which had concerned the delegate and the Tribunal were, in my opinion, matters of clear general knowledge which the Tribunal was entitled to draw upon in relation to Catholicism.

19. As a result of all the concerns identified by the Tribunal, it concluded that the applicant had “fabricated his claims for the purpose of his protection visa application”. It then rejected them globally, and in detail. It did not accept that either the applicant or his spouse were Catholics, nor that they had ever had any involvement with an unregistered Catholic Church in China. It did not accept that he would engage in religious activities if he returned to China. It did not accept that he had been, or would be of, adverse interest to Chinese authorities.
20. The Tribunal considered the applicant’s claims to have been attending a Catholic church in Australia and during his detention. It was not satisfied that he had engaged in that activity otherwise than for the purpose of it strengthening his claims to be a refugee. It was, therefore, obliged to disregard the conduct pursuant to s.91R(3). The Tribunal concluded that there was no real chance that he would be persecuted for the reason of his religion or for any other Convention reason if he returned to China.
21. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. 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’s claims should be believed, nor whether he should be given a protection visa or any other permission to stay in Australia.
22. The applicant’s application contained two grounds, framed as follows:
    • 1. Procedural unfairness in the review conducted by the Immigration Department.
    • 2. Prejudicially treated by the Refugee Review Tribunal.
23. These grounds have never been explained or particularised in an amended application or written submissions, and I have not been able to give substance to them.
24. I have not identified any procedural unfairness which would be in breach of the provisions of the Migration Act, so as to require me to set aside the Tribunal’s decision.
25. The complaint of being “prejudicially treated” is obscure. If it is a complaint that the Tribunal was prejudiced against a proper consideration of the applicant’s claims and evidence, or might appear to have been so, I can find nothing in the evidence before me supporting any argument of actual or apprehended bias.
26. If it is a complaint about the merits of the Tribunal’s assessment of the applicant’s evidence, then I have been unable to identify any basis in jurisdictional error for acceding to that complaint. In my opinion, the reasons given by the Tribunal for disbelieving the applicant had a rational foundation in the evidence which was before it, and the Tribunal’s conclusions were open to it on that evidence.
27. I am not persuaded that there was any evidence which the Tribunal overlooked or failed to assess, including the late evidence from the applicant’s son.
28. I have considered a point, properly raised by counsel for the Minister, referring to the different paths taken by the delegate and the Tribunal. I do not consider that the applicant was unfairly treated within the principles discussed in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, by reason of the broader basis of the Tribunal’s conclusions. In my opinion, it was sufficiently brought to the applicant’s attention that the Tribunal might disbelieve the whole of his claims, including that his wife had been a Catholic who had suffered persecution for that reason from the time of their marriage.
29. In his submissions today, the applicant emphasised the conclusion which he suggested the Tribunal had failed to draw from the household registration. He maintained that this document, in fact, corroborated his claims. I am not, however, persuaded that anything he said in this respect did more than challenge the merits of reasoning which was open to the Tribunal about that part of his evidence.
30. The applicant maintained that he had fears of return to China, and also referred to the current situation of his son as causing concern. He indicated that he wished to have an opportunity to present further evidence, including as to his son’s current situation, to the Tribunal and Department of Immigration. However, it appears to me that his concern, whether or not soundly based, does not provide a ground for me to make an order that such further consideration should occur. If he has grounds for invoking the Minister’s discretions to give him permission to stay, then he should take further advice about that urgently from a migration agent.
31. For all the above reasons I have been unable to identify jurisdictional error affecting the decision of the Tribunal. I must, therefore, dismiss the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 15 February 2011