SZKGH v Minister for Immigration and Citizenship

Federal Court of Australia|2008-05-16|Before: McKerracher J

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of a Federal Magistrate (Scarlett FM) delivered on 5 December 2007 (SZKGH v Minister for Immigration & Citizenship & Anor [2007] FMCA 2116) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 17 January 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Department) (as it was then known) to refuse to grant a protection (class XA) visa to the appellant.

BACKGROUND 2 The appellant is a citizen of the People's Republic of China (PRC). She arrived in Australia on 19 April 2006. On 19 May 2006 the appellant lodged an application for a protection visa with the Department. A delegate of the first respondent refused the application for a protection visa on 16 August 2006. On 13 September 2006 the appellant applied to the Tribunal for a review of that decision with the assistance of a migration agent. 3 The appellant claimed to fear persecution in China due to her membership of the Christian 'Shouters' church. She asserted that she assisted the church in its distribution of illegal religious materials as 'the major assistant' to a church leader who had a major or leadership role in the church. This allegedly led to her being questioned by the Public Security Bureau (PSB) in relation to the whereabouts of the church leader. According to the appellant, a friend of hers was arrested in March 2006 and 'exposed everything' about her role in the church to the PSB. The PSB allegedly sought the appellant out and she elected to flee China with assistance of her employer.

THE TRIBUNAL DECISION 4 The Tribunal found that the appellant's claims contained several substantial inconsistencies. 5 The Tribunal noted that the appellant had been unable to locate biblical passages which she believed to be significant. As country information suggested that Bible reading and study is an important part of 'Shouters'' religious practise, this lack of knowledge led the Tribunal to find that the appellant was 'not a practitioner of the religion or a member of the church'. As it found the appellant's account of her parents' and teacher's alleged failure to express concern over her association with the underground church incongruous, the Tribunal was not satisfied that the appellant had had any association with the 'Shouters' at all. 6 The Tribunal went on to find that it was not satisfied on the basis of country information that the appellant would suffer persecution in China due to her Christianity. Nor did it accept that the appellant's limited knowledge of or involvement with the 'Shouters' would have attracted the adverse attention of the PSB. The Tribunal did not accept that the appellant had been sought out by the PSB or that they had come to her home. Finally, the Tribunal rejected the appellant's assertion that her regular attendance at a Christian church in Sydney would bring her to the adverse attention of the Chinese authorities. The Tribunal accordingly rejected the appellant's application for review as it did not accept that she held a well-founded fear of Convention-related persecution (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967). 7 The Tribunal's decision was very thorough. The appellant had attended a hearing by video-link on 23 November 2006. She gave evidence with the assistance of a Mandarin interpreter. The Tribunal noted that in the statutory declaration of 19 May 2006 submitted with her protection visa application that she had stated that she was born in Fujian Province, China on 16 February 1986 and while attending school her teacher, Ms He, chose a small number of students including the appellant to organise a bible study group. 8 The appellant said that Ms He was a secret member of the Local Church also known as the 'Shouters' and conducted bible study classes. Ms He arranged for the appellant to attend secret gatherings of the Local Church and she (the appellant) became baptised on 16 February 2003 and became a member of the Local Church. Ms He was dismissed from her job in November 2003 and sentenced to one year of 'Re-education through Labour'. At that time the appellant visited Ms He's mother and as a result she was questioned by officers of PSB. She told them that she was Ms He's former student and wanted to take care of Ms He's ill mother. 9 Her claim was that in December 2004 Ms He was released from prison but her freedom was still restricted by the PSB. At about that time two officers of the PSB, according to the appellant, visited her at her place of employment in a shoe shop and questioned her about the whereabouts of Ms He. The appellant said she told them that she knew nothing about it because she had not had any contact with Ms He for at least a month. 10 The appellant's evidence in fact was that for about a year from 2005 to 2006 she was the 'major assistant' of Ms He and delivered more than a hundred copies of the 'Meaning of a Day'. The appellant said that on 5 March 2006 Ms He gave her copies of the publication to be distributed as usual and the appellant passed them onto a Mr Chen, a special liaison person of the Local Church on 6 March 2006. On 8 March 2006, however, Mr Cheng Yong Zheng, the manager of the shoe shop rang the appellant to tell her that Mr Chen had been arrested by the PSB and 'exposed everything'. Mr Zheng suggested she flee and so she went to the Guangdong Province. Meanwhile, according to the appellant, the police came to her house and to the shoe shop to arrest her. Her case was that because of Mr Chen's confession they believed she was a key member of the Local Church and responsible for distributing the illegal religious materials. 11 The Tribunal commented on the interview by the delegate of the first respondent on 8 March 2006. When the appellant was interviewed by the delegate she was asked a number of questions about her understanding of Christianity and the beliefs and practises of the Shouter Church. The Tribunal recorded that she told the delegate that she was Ms He's assistant but was unable to provide a detailed description of the bible study gatherings. 12 The original tribunal hearing was set down for 31 October 2006 but was cancelled due to poor video reception. It was rescheduled to 23 November 2006. At this hearing the appellant described her activities with Ms He in greater detail. The appellant placed great emphasis on her involvement with bible studies and nightly bible reading. Indeed she recited a psalm for the Tribunal. 13 The Tribunal observing that the appellant had a bible with her, asked her to find a passage that she was familiar with and had some meaning for her. The appellant then quoted something which, according to the Tribunal, sounded like 'you are Adam in our hearts'. The Tribunal asked the appellant to find that passage in the bible and to read it out. The appellant said that it came from the gospel of Matthew but she was unable to locate it. She said that she liked many passages in the bible but was unable to identify any one particular passage to read to the Tribunal. 14 She then expanded upon the content of her interview which had been conducted with the delegate on 8 March 2006. 15 On 4 December 2006, the Tribunal wrote to the appellant seeking her comments on information which indicated that she was not involved in the Local Church prior to arrival in Australia and that even if she were involved in the church it was in the capacity of a member rather than an organiser. The Tribunal was of the view that it was implausible that her parents would have expressed so little concern about her ongoing involvement in an underground church at such a young age and also found it implausible that her teacher would not have told her that it may be dangerous to express her beliefs in public. 16 The Tribunal observed that the appellant had provided inconsistent information in respect of her travel to Xiamen and her involvement in photocopying religious material. In particular, the Tribunal did not accept that she would have made tens of thousands of copies of sensitive material in a local photocopying shop. The Tribunal expressed doubts about her claim that she was questioned by the PSB given her uncertainty about the first date of questioning and her failure to mention in her application that she had been questioned by the PSB only on 1 March 2006. 17 The appellant responded to the communication issued by the Tribunal pursuant to s 424A of Migration Act 1958 (Cth) (the Act) stating that she had had difficulty demonstrating her knowledge of Christianity at her interview with the delegate even though she does read the bible every night but at the Tribunal hearing she was very nervous and seemed to be 'brain dead' so that she could not locate any passages in the bible. 18 She responded to various other aspects of the communication and the response was taken into account by the Tribunal in its reasons. 19 In addition, the information taken into account by the Tribunal included country information going to the question of freedom of religion and to 'the Shouters' church. 20 The Tribunal observed that while the appellant claimed fear of persecution because of her involvement in the Shouters Church, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the claim or that it is 'well-founded' or that it is for the reason claimed. The Tribunal noted (correctly) that it was not required to accept uncritically assertions made by the appellant (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596) and it remains for the appellant to satisfy the Tribunal that the statutory elements were made out. 21 The Tribunal was satisfied that while the appellant had demonstrated some limited knowledge of the beliefs and practises of the Shouter Church at her interview with the delegate, she demonstrated a more thorough understanding of those matters at the Tribunal hearing. However, the Tribunal also noted that bible reading and study were essential to the practises of the Shouters and despite her claim that she read the bible every night and had regularly attended bible study groups since 2000, she was unable at the hearing to locate and read any one of her preferred bible passages. The Tribunal took into account the fact that she may have been nervous but that they would have expected a practicing member of the Shouter Church to demonstrate at least a reasonable familiarity of the contents of the bible. The lack of knowledge by the appellant in that area suggested to the Tribunal that despite a relatively fluent description of the beliefs and practises of the Shouter Church, she was not a practitioner of the religion or a member of the church.

THE FEDERAL MAGISTRATE'S DECISION 22 Before the Federal Magistrate the appellant raised two grounds with particulars: 1. There was error of law in the Tribunal's decision. 2. There was procedural error in the Tribunal's decision amounting to a denial of natural justice. 23 The particulars asserted are as follows: 1. The Tribunal failed to comply with its obligation under s 424A(1) of the Act. 2. The Tribunal made a finding without the support of substantial evidence. 3. The Tribunal ignored or misunderstood or misstated her claims or was biased. 24 The Federal Magistrate found that the Tribunal's invitation to comment of 4 December 2006 referred in detail to the appellant's application for a protection visa and the appellant's oral evidence. The letter informed the appellant that the information would, subject to any comments that she made, be the reason, or part of the reason for deciding against her entitlement to a protection visa. The appellant provided a response which was considered and the requirements of s 424A were therefore fulfilled. 25 On the issue of ignoring or misunderstanding or misstating some of the appellant's claims, his Honour found no evidence to support this contention. His Honour further accepted that the Tribunal had given a comprehensive account of her claims. His Honour could find nothing to substantiate a claim of bias, the assertion not being 'clearly alleged or proved': SZHPD v Minister for Immigration and Citizenship [2007] FCA 157; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. 26 Concerning the Tribunal's consideration of the appellant's claims, his Honour found the appellant's claims to 'Shouters' membership had been considered. However, the Tribunal had not been satisfied of this and had determined that her practise of Christianity would not draw her to the attention of the authorities in and of itself. 27 The appellant had failed to prove that the Tribunal decision had been affected by jurisdictional error and the review application was accordingly dismissed.

GROUNDS OF APPEAL 28 The notice of appeal raises the following grounds: 1. The learned Federal Magistrates (sic) erred in finding that the Refugee Review Tribunal ("the Tribunal") failed to comply with its obligation under s 424A(1) of the Act; and the Tribunal made its finding (sic) based on its unwarranted assumption. 2. The learned Federal Magistrates (sic) erred in finding that the Tribunal failed to consider my claims properly and correctly. Particulars 3. In deciding my application, the Tribunal: - failed to give me the particulars of the above-mentioned information; - failed to ensure me to understand that the information is in relation to my review application; and - failed to invite me to comment on it. 4. In the Tribunal's decision, "…the Tribunal accepts that the applicant may have been a practicing Christian…" However, the Tribunal failed to consider the evidence that I have only practiced my religion at the Shouters church both in China and in Australia; and the Tribunal failed to consider the possibility whether I could continue my religious practice with the Shouters church if I were to return to China; and the Tribunal failed to consider my "real chance" of being persecuted by the Chinese government if I continually practices (sic) my religion at the Shouters church on my return; and the Tribunal failed to consider whether I would be subjected to persecution on my return owing to my particular role played in the Shouters church in Australia. 5. The Tribunal, therefore, failed to consider my claims or evidences (sic) properly and correctly. 29 The oral submissions made by the appellant at the hearing before me bore some, but not great resemblance to the grounds of appeal and indeed to the relief sought. 30 The essential thrust of the submissions was threefold. The first complaint by the appellant was that she had been declined a request to have a tape of the interview conducted at the Department. The appellant maintains that the interpreter provided services which were inadequate and the inadequacy of the translation may have caused the impression to be created that her knowledge of the bible was not as expansive as is truly the position. 31 Her second main area of attack was that it was inappropriate for the Tribunal to draw conclusions as to the way in which both her parents and her teacher would have acted in relation to the appellant's circumstances. It was contended that it was impossible for the Tribunal to know the mental attitude of the parents and teacher. 32 The third main area of attack was that the Tribunal had no proper basis for concluding that she would not be at real risk of persecution as a member of the Shouters Church if she returned to China. 33 In short, in relation to the oral submissions made by the appellant, there was ample material upon which the Tribunal was entitled to reach its conclusion. 34 Quite independently of any question of interpretation (in relation to religious issues) or assumptions about mental processes, the Tribunal had regard to the appellant's account of her activities in disseminating religious propaganda material for the Shouters. It noted that she had given inconsistent information about her visits to Xiamen in 2005 and 2006. At the interview with the delegate she stated that she went there about eight times for two weeks at a time. At the hearing before the Tribunal she stated that she visited Xiamen about twice a month and stayed one, two or three days at a time. In a response given in her s 424A response she confirmed that she visited Xiamen about 22 or 23 times for two or three days at a time and stated that she could not recall what she had told the delegate. 35 There were also inconsistencies in relation to the extent of her role as she described it in distributing religious materials. In her application the appellant stated that in 2005/2006 she delivered more than a hundred copies of the Meaning of the Day to Mr Chen, she made no mention of copying any material for the teacher. At the Tribunal hearing she said that whenever Ms He gave her documents she would make two thousand or more copies for distribution. In her s 424A response she stated that following each visit to Xiamen she made at least a thousand photocopies amounting to a total of 22,000 to 23,000 copies in the course of the year. The appellant contended she did copy most of this material at a local photocopy shop in Longtian. 36 It was open to the Tribunal to conclude, as it did, that there was significant difference between making eight visits over the course of the year for two weeks at a time and making 22 or 23 visits during the same period of two or three days at a time. The appellant had been unable to offer any explanation for that inconsistency and the Tribunal was not satisfied that she travelled to Xiamen as claimed. The Tribunal also found it implausible that the appellant would have made tens of thousands of copies of secret or sensitive material in a local photocopy shop. 37 In short the Tribunal accepted that the appellant may have been a practising Christian but was not satisfied that she had suffered serious harm from the Chinese authorities in connection with her practise of Christianity. The Tribunal had regard to country information quite independently of any evidence actually adduced by the appellant. That country information indicated that members of registered Christian churches did not suffer particular difficulties in China. The appellant conceded that in her s 424A response but pointed out that that attitude did not extend to underground churches. The Tribunal also accepted that some members and, in particular, leaders of the Shouters Church had been arrested, detained and otherwise persecuted in China but concluded that the appellant's limited knowledge of the bible and the inconsistent information in respect of her role in obtaining and distributing religious material suggested that she was not a person who played a leading or active role in the Shouters church or, indeed, that she was in fact a baptised member of the church. 38 The Tribunal also went on to reject the appellant's account about being visited by the PSB at her home and her place of employment to question and/or arrest her in connection with her own activities in the church. Nor did the Tribunal accept that the appellant was refused a passport by the Chinese authorities because of her involvement with the Shouters nor did it accept that she was currently sought by the authorities because of her role in the church. The Tribunal was not satisfied that there was any material to suggest that the appellant's attendance at a mainstream Christian church would now or in the reasonably foreseeable future attract the adverse attention of the Chinese authorities. It was not satisfied that she would face any serious harm on her return to China because of her adherence to the Christian faith. 39 Section 422B of the Act provides that Div 4 of Pt 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

FURTHER CONSIDERATION 40 I turn to examine the grounds of appeal as filed.

Ground 1 - s 424A(1) and unwarranted assumption 41 The first respondent contends that Ground 1 is misconceived since the Federal Magistrate did not find that the 'Tribunal failed to comply with its obligations under s 424A(1)' etc. As far as that submission goes, the first respondent is correct but I have taken the ground of appeal as meaning that the learned Federal Magistrate erred in failing to find rather than erred in finding. At [19]-[20] of his reasons for judgment his Honour did find that the Tribunal complied with its obligations under s 424A(1) of the Act and in my view was entitled to do so. It is clear that the Tribunal sent a notice under s 424(1) to the appellant on 4 December 2006 which set out the information provided in the application for a protection visa, information provided at the interview with a delegate on 8 August 2006 and the appellant's oral evidence to the Tribunal. 42 In relation to the complaint by the appellant that the learned Federal Magistrate erred in finding that the Tribunal made its finding based on its unwarranted assumption, the same observation might be made. Logically the complaint is probably intended to read that the learned Federal Magistrate erred in failing to find that the Tribunal made its finding based on its unwarranted assumption. 43 However, treating the ground of appeal in this way, it, in my view, has no support for the reasons given by his Honour. The learned Federal MagistMCKERRACHER J

NEW SOUTH WALES DISTRICT REGISTRY NSD 2549 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

The appeal be dismissed. 2. The appellant is to pay the costs of the first respondent fixed at $1,680 pursuant to O 62 r 4(2)(c) of the Federal Court Rules. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NEW SOUTH WALES DISTRICT REGISTRY NSD 2549 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

FURTHER CONSIDERATION 40 I turn to examine the grounds of appeal as filed.

Ground 2 - Failure to consider claims properly and correctly 44 The learned Federal Magistrate also considered this ground at [22]-[23] of his Honour's reasons. No specifics of this failure were identified. The Tribunal gave detailed analysis and has expressed its basis for affirming the decision of the delegate. Essentially that was because it was not satisfied with the appellant's claim to fear persecution in China because of her religion. Based on the evidence before it, this finding was open to the Tribunal and accordingly, no error has been shown in the learned Federal Magistrate not interfering with that conclusion of the Tribunal on the basis of the evidence which was before it. Ground 2 of the appeal must be rejected.

Ground 3 - Failure to give particulars 45 In relation to Ground 3, nothing new in Ground 3 is raised beyond what appears in relation to Ground 1 concerning s 424A(1) of the Act and in my view cannot be sustained.

Ground 4 - Real chance of persecution 46 No error amenable to review in the decision of the learned Federal Magistrate has been articulated or demonstrated in relation to Ground 4. 47 In my view, the appellant's argument that the Tribunal failed to consider a number of her claims is without foundation. It is clear that the Tribunal did consider the appellant's involvement with the Shouters church in China but the Tribunal did not accept that the appellant played a leading or active role in that church. It formed that view on the basis of the appellant's limited knowledge of the bible when tested by the Tribunal and also by the inconsistent information in respect of her role in obtaining and distributing religious material. 48 The Tribunal also considered that the appellant's attendance in a 'mainstream' Christian church in Australia but found that there was nothing to suggest that her attendance at such Christian church would now or in the reasonably foreseeable future attract the adverse attention of the Chinese authorities. 49 There is no reason why the Tribunal should consider, nor was it required to consider the possibility of whether or not the appellant would continue to practise her religion with the Shouters church if she were to return to China. The reason for this was that the Tribunal was not satisfied that the appellant had been an active member of the Shouters church in China and did not accept that she suffered serious harm in China because of her activities in that church. 50 The Tribunal concluded that the appellant would not face a 'real chance' of persecution if she were to return to China. The Tribunal was entitled on the material which was before it to reach that conclusion. Ground 4 is not made out.

Ground 5 - (Repetition) 51 Ground 5 is expressed in the same terms as Ground 2 except that the focus is on the Tribunal rather than the Federal Magistrates Court. It fails for the same reasons as Ground 2.

CONCLUSION 52 No appellable error has been identified by the appellant and the appeal will be dismissed with costs. 1. The appeal is dismissed. 2. The appellant is to pay the costs of the first respondent fixed at $1,680 pursuant to O 62 r 4(2)(c) of the Federal Court Rules. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 16 May 2008 The Appellant represented herself

Migration Act 1958(Cth)ss 422B, 424A, 424A(1)

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