SZOAZ v Minister for Immigration and Citizenship

REFUGEE REVIEW TRIBUNAL 4 The Tribunal accepted some of the applicant's claims, including that her husband had left her and that she was a Christian. It appeared to harbour reservations about whether the applicant had been detained in 2004 but was prepared to assume that she had been taken into custody. In dealing with her claimed detention, the Tribunal said, at para [105] of its reasons that: "As to her claim that she was detained by the police in 2004 and held for just under two months, she attributed this to the fact that she had been telling her primary school-age students, to whom she should solely have been teaching the Chinese language, stories from the Bible. Apart from her assertions that she was detained the Tribunal has before it no evidence of that detention. However she agreed that teachers in China were not allowed by the relevant government departments to evangelise to students under 18, and that it was this which led to the period of detention. Although it was clearly an excessive response, more appropriately dealt with the school, the Tribunal accepts that local police officers are known to detain people arbitrarily …. Her account is consistent with that evidence. However the fact that she was not charged, was released on payment of a bribe to a particular officer (consistent with evidence that corruption remains an endemic problem in law enforcement agencies …), was never again questioned about her religious activities and was able to resume those activities unhindered when she chose suggests that she was not detained for reasons of religion but most likely in order to extract just such a payment from her." 5 Further, although the Tribunal accepted that the applicant was dismissed from her job as a school teacher in 2004 and was unable to find other employment within that field, it was satisfied that, if she returned to China, her access to other forms of employment would not be denied because of her religious beliefs. The Tribunal noted that the applicant had been a regular and frequent participant in Christian gatherings in Fujian throughout the previous 21 months without harassment or harm. The Tribunal also had regard to independent country information which suggested that officials in Fujian have had a very liberal attitude towards Christians. The Tribunal held that the applicant's claim that she left China because she was unable freely to attend church gatherings in Fujian province was not consistent with that evidence. 6 The Tribunal also had regard to the applicant's 19 month delay in applying for refugee status, which did not appear to the Tribunal to be consistent with a fear of persecution, and noted that she had made untruthful statements to the Department and the Tribunal about her knowledge of her husband's whereabouts. He was, as she admitted at a second Tribunal hearing, in Australia and had been since 2002. It found that this cast doubt on her credibility. The Tribunal was also satisfied that her Church attendance in Australia would not lead to her being persecuted on her return to China. 7 The Tribunal was satisfied that the applicant came to Australia for a reason other than a fear of persecution for reasons of religion or any other Convention reason, and affirmed the decision under review. 8 The Tribunal also considered a claim which the applicant made to the Tribunal that she has been sending religious materials back to China since her arrival in Australia. She said that a few weeks before she lodged her application for a protection visa her mother-in-law had told her that the local police had found out about this and would arrest her on her return. This was the basis for her feared persecution for religious reasons should she return to China. The Tribunal was not satisfied that these claims were true or that the police in China have any adverse interest in her by reason of her church activities or any other reason.

FEDERAL MAGISTRATES COURT 9 The applicant filed an application for judicial review of the Tribunal's decision in the Federal Magistrates Court on 30 November 2009. In an amended application filed on 17 February 2010, the following grounds of review were identified: 1. Error in construing and applying the words, "for reason of" in Article 1A(2) of the Refugees Convention. Particulars (a) Failure to consider that persecution could have more than one operative cause. (b) Failure to consider whether the immediate motivation for the persecution was the real or operative reason. (c) Failure to consider the nexus between persecution and the reason for the persecution feared in a "common sense way". 2. The Second Respondent (the Tribunal) failed to comply with section 425 of the Migration Act. Particulars (a) Failure to give the applicant an opportunity to give evidence and present arguments as to the reason for the extortion of which she was the victim 10 In respect of particular (a) of ground 1, the Federal Magistrate found that such a complaint was difficult to make out having regard to the Tribunal's reasons for decision. It had explained at [15] that: "The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act." (Emphasis in original) 11 The Federal Magistrate considered that, while this statement was contained in a "boilerplate" paragraph, this did not mean that the Tribunal was not aware of the point or disregarded it: Duzdiker v Minister for Immigration [2000] FCA 391 at [12]; Irfran Yaqyub v Minister for Immigration [1998] FCA 1539. 12 The Federal Magistrate rejected the complaint in particular (b) of ground 1. He did so because he understood the Tribunal to have considered the motivation issue in the passage quoted above at [4] and concluded that the applicant had not been detained "for reasons of religion" but in order to extract a bribe from her. 13 The Federal Magistrate found that the complaint raised in particular (c) of ground 1 was not made out having regard to the Tribunal's reasoning, taken as a whole. His Honour held that, in any event, in the circumstances of this case, the manner in which the Tribunal considered the extortion claim was irrelevant, because the basis for obtaining a protection visa is a fear of future persecution, not evidence of past persecution. He said that, unless the past persecution is an indicator of likely future activity against the applicant, it is essentially irrelevant. In this case, the Tribunal had found that the applicant did not have a well founded fear of persecution if she was to return to China. She had not been persecuted in the three years prior to her leaving China and she had not applied for a protection visa for some 20 months after her arrival in Australia. Her claims to fear persecution because of her having sent religious literature to China had been rejected by the Tribunal. 14 In respect of ground 2, the Federal Magistrate rejected the claim that the Tribunal should have told the applicant that it was minded to come to a conclusion that the extortion had no Convention nexus. His Honour held that, to do so, would have meant providing her with a running account of what it was minded to decide, which it was not required to do: SZBEL v Minister for Immigration (2006) 228 CLR 152. 15 The Federal Magistrate dismissed the application.

APPLICATION TO THIS COURT 16 The application to this Court was filed on 4 May 2010. It was supported by an affidavit in which the applicant deposed that she had been unable to engage a solicitor to prepare her appeal documents until about 23 April 2010. This was because she was unable, prior to that date, to borrow the necessary funds. She had earlier sought assistance, without success, from Legal Aid. 17 In a draft notice of appeal attached to the affidavit the following grounds are raised: 1. The Court erred in finding that the second respondent (the Tribunal) did not err in considering the nexus between the persecution suffered by the appellant, and her religion. 2. The Court erred in finding that the fact of extortion in the circumstances of the appellant's case irrelevant. Particulars: (a) The Tribunal's finding as to the pretext used by the police in arresting and detaining the appellant is relevant to the possibility to her being detained on a similar pretext in the future. 3. The Court erred in failing to find that the Tribunal had breached s 425 of the Migration Act. Particulars: (a) Failure to disclose to the applicant that the motivation of the police in arresting and detaining her was an issue in the proceedings. 18 The parties submitted that the Court should hear argument on both the application and the grounds of appeal. I agreed to this proposal because it avoided any unnecessary duplication of listings and because argument on both issues could conveniently be accommodated in the time allocated for the hearing of the application.

SUBMISSIONS OF THE APPLICANT 19 The applicant submitted that she should be granted leave under O 52 r 15(2) of the Federal Court Rules to file her appeal out of time. 20 Counsel advanced the following submissions in support of the application: · The draft notice of appeal was lodged only 34 days out of time. · There were "special reasons" (cf Jess v Scott (1986) 12 FCR 187 at 195) which justified the grant of an extension. These were the applicant's lack of English, her inability to obtain legal representation to assist her in filing her appeal and her impecuniousity. · She did what she could to obtain assistance by consulting her solicitor and approaching Legal Aid. · She sought financial assistance from friends in China and instructed her solicitor to lodge the appeal documents as soon as funds were obtained. · There was no prejudice to the respondent. 21 Counsel for the Minister cross-examined the applicant about her knowledge of the requirement that appeals be lodged within 21 days and why it was that she had not acted within the prescribed time. Counsel did not challenge the applicant's evidence relating to her attempts to obtain legal assistance and funding once it became clear to her that legal assistance would not be available unless she was in a position to pay for it. 22 In my view the applicant has demonstrated special reasons which warrant the granting of an extension of time for the lodging of her appeal. Her application should be granted.

THE APPEAL 23 Counsel for the applicant identified the issues arising on the appeal as being: · Whether the Tribunal's reasoning supported the Federal Magistrate's finding that the Tribunal lawfully considered and addressed the causal connection between the applicant's religion and the persecution that she claimed to fear. · Whether there was a reason, "truly independent" of the findings covered by the first issue, for the Tribunal's finding that the applicant did not have a well-founded fear of persecution for a Convention reason. · Whether the Federal Magistrate was correct in holding that the Tribunal had not breached s 425(1) of the Act in coming to its decision. 24 In dealing with the first issue the applicant submitted that the Tribunal had failed to consider that the immediate cause of the applicant's arrest may not have been the real or operative cause or that there could have been more than one operative cause. She submitted that it was "simply not open to the Tribunal" to isolate the reasons for detention from the reason for the persecutory conduct which followed. 25 In supporting her arguments on the first issue the applicant placed principal reliance on two decisions of this Court. The first was Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28. The other was Okere v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 112. 26 In Paramananthan a young Tamil man had been detained in Sri Lanka because he was a Tamil who was suspected of being sympathetic to a Tamil organisation which was opposed to the government. Whilst in detention he had been beaten and tortured. The Tribunal had rejected his claim for a protection visa on the basis that he was the victim of "indiscriminate cruelty" while in detention. The Full Court held that the Tribunal had erred in approaching the matter in this way. Wilcox J (at 39) said that: "…. the fact that people have been selected for detention on the basis of their ethnicity or perceived political opinion makes it important for a government to ensure there is no abuse of the power of detention. The people who are at risk of "indiscriminate cruelty" have been selected on a basis mentioned in the Convention." (Emphasis in original). 27 Lindgren J (at 43) posited a hypothetical example in which a person was initially detained because of his membership of a particular social group and was thereafter held in order to extract bribes from his friends and relatives. Such detention would, his Honour held, amount to persecution for a Convention reason because "the initial arrest and detention would be on account of membership of a particular social group and … the mistreatment was not the isolated and unforeseeable act of an individual member of the security forces, but was sufficiently common for it to be said that there was a well-founded fear of its occurrence." 28 In Okere Branson J referred to what her Honour described as a "false dichotomy" which had been drawn by the Tribunal in that case. It had sought to distinguish between harm which the applicant in that case feared for reason of his religion and harm faced by reason of what he had done as an individual. Her Honour cited the example of a person who is persecuted for failure to attend government propaganda sessions on Sunday mornings because he feels obliged to attend a Christian religious service which is was held at the same time. If such a person were to be persecuted for failing to attend the propaganda session such persecution would, albeit indirectly, occur for reason of religion. 29 The Tribunal, in the present case, was alert to the possibility that a person may fear persecution for a range of reasons, not all of which were reasons recognised by the Convention. It directed itself that "persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution fear…". It specifically referred to s 91R(1)(a) of the Act which implicitly acknowledges the possibility of multiple reasons (Convention-related and not Convention-related) which may lead to persecution. 30 The Tribunal turned its attention to the question of whether the applicant had been persecuted for a Convention reason whilst in China in paragraph [105] of its reasons (see above at [4]). The applicant submitted that the Tribunal can be understood as accepting that the applicant had been detained because of her religious beliefs and that she was thereafter held in detention in an attempt to extract a bribe from her. The Minister, on the other hand, contends that the paragraph records a finding by the Tribunal that the applicant was not detained for reasons relating to her religious belief but because of a desire to extract a bribe from her. 31 In my view a careful reading of paragraph [105] supports the Minister's contention. The paragraph starts by recording the applicant's claim that she had been detained for telling Bible stories to her students. It then records that the applicant agreed that such conduct by teachers was prohibited in China. The Tribunal accepted, on the basis of country information, that Chinese police officers are known arbitrarily to detain people. It then continued: "However the fact that she was not charged, was released on payment of a bribe to a particular officer …, was never again questioned about her religious activities and was able to resume those activities unhindered when she chose suggests that she was not detained for reasons of religion but most likely in order to extract just such a payment from her." 32 Although it may have expressed its reasoning with greater clarity, I understand the Tribunal, in the passage just quoted, to have made a finding. That finding was that the original detention of the applicant occurred for one reason only. That reason was a desire to extract a bribe from her. The finding involved an explicit rejection of the applicant's claim that she had been detained "for reasons of religion". The Tribunal's finding was open to it for the reasons which it gave. 33 The finding that the applicant was not initially detained for a Convention reason distinguishes the facts of the present case from those obtained in Paramananthan where the young Tamil man had been taken into custody because of his ethnicity and perceived political views and was seriously abused while detained. 34 Okere is also distinguishable because the Tribunal's finding negatives the possibility that this is a case of "indirect" persecution for reason of religious belief. 35 The second issue raised by the applicant is related to the first. It was developed, in the applicant's written submissions, in these terms: "Had the Tribunal decided that the police had in the past sought to extract a bribe from the applicant after having arrested her for reason of her religious activities, it may also have decided that her religion may in the future act as a pretext for similar extortion, whether or not she was permitted to teach children and whether or not anything had happened to her in the three years between her arrest and departure for Australia …". 36 As can be seen, the applicant's argument proceeds on the false assumption that the Tribunal had accepted the applicant's claim that a reason for her arrest and detention was her religious views. 37 The Tribunal's finding that the applicant had not been persecuted for a Convention-related reason in the past denies the applicant any scope to argue that her detention in 2004 supported her claim to face a real chance of persecution for reasons of religion should she return to China. 38 The third issue raised by the applicant concerned compliance, by the Tribunal, with the obligations imposed on it by s 425(1) of the Act. That provision required the Tribunal to invite the applicant "to give evidence and present arguments relating to the issues arising in relation to the decision under review." She contended that the Tribunal had erred by not raising with her the question of whether the police's motivation for extorting money from her had a Convention nexus. Its failure to do so, so it was submitted, denied her the opportunity to make submissions on the issue of Convention nexus, a central element of her case. 39 The applicant relied on a passage from the joint judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 163-4 where their Honours said: "Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness." 40 When the applicant gave evidence to the Tribunal, the member drew her attention to her claim that she had been detained for two months in 2004. The Tribunal member then asked these questions: "Why did the police have an interest in you at that time? Why did they decide to detain you at that time?" The applicant responded that the police had said that she had "evangelised to the kids in the school." The Tribunal member then asked: "So was that something that was against rules for teachers, or was this something that teachers normally were not allowed to do by the Education Department?" The applicant responded: "I think that was the case, you should not evangelise to people under 18." 41 The applicant could have been under no misconception, at the time of the Tribunal hearing, that her detention in 2004 was a matter of disputed fact. This was because the delegate had found that she had not been so detained. The Tribunal member ensured that the issue was further explored by raising it at the hearing. The Tribunal was not required to tell the applicant why it considered the issue to be important: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at 302. Nor was the Tribunal under an obligation to tell the applicant how its findings on the factual issues might be deployed in its process of reasoning: SZBEL at 166. It did not make its decision on the basis of an adverse finding on a factual issue which it had not raised with the applicant. 42 The Tribunal did not fail to meet the obligations imposed on it by s 425(1) of the Act. The Federal Magistrate was correct so to hold.

DISPOSITION 43 The appeal should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.