FEDERAL COURT OF AUSTRALIA

SZTMI v Minister for Immigration and Border Protection [2015] FCA 566

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The First and Second Appellants pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from the Federal Circuit Court which dismissed the appellants’ application for orders quashing an earlier decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal had concluded that the first named appellant did not qualify for a protection visa. The entitlement of the members of his family to a visa turned on his own entitlement. It is, therefore, only necessary to consider the position of the first appellant, who I will refer to as the appellant.

2    The appellant is a Chinese national. His case before the Tribunal involved allegations that he would be persecuted or disadvantaged if he were returned to China for a number of reasons including:

    his Christianity;

    the objection of his de facto spouse’s parents to the age disparity between his age and hers;

    the fact that they would be punished for breaching the Chinese birth control law since they were not married but nevertheless had a child;

    the fact that they would be unable to get household registration on their return to China and would therefore have unsatisfactory living conditions in China;

    the fact that, if returned to China, the appellant would express strong opinions against the Chinese government (as he had allegedly already done on the internet);

    the fact that he had taken photos during the June Fourth Democratic Movement in 1989; and

    his family background in coming from what was allegedly a ‘capitalist’ family during the Cultural Revolution.

3    The Tribunal rejected each of these arguments. It did not accept that his background disadvantaged him, although it accepted that he might have trouble getting a job since he was 64. It did not accept that he had an adverse political record, largely because it did not believe he was a credible witness. It did not think he was a credible witness because he was in Australia for ten years before he applied for a protection visa and had only applied when he was apprehended by immigration officials for not having a visa. It was also underwhelmed by his suggested claims of persecution in circumstances where he had returned to China from Australia on no fewer than 18 occasions. The Tribunal did not think that these were the actions of a person who had a well-founded fear of persecution in China. Insofar as the internet statements were concerned, these did not identify the appellant and did not, in any event, appear to criticise the Chinese government.

4    The Tribunal was also unpersuaded that the appellant would be unable to obtain household registration in China. It did accept that it might not be all plain sailing for the appellant in getting registration following his ten year absence from China but such difficulties as existed were unrelated to the political or religious views.

5    As to the issue of Christianity, the Tribunal did accept that the appellant had some background in Christianity but that this had not extended to his attending church until after his apprehension by Australian immigration authorities in 2012. Ultimately, however, it accepted that he and his family were Christians and would, in fact, practise as Christians if returned to China. It found, however, that if returned to China the appellant’s profession of his faith was such that he would be satisfied by attending one of the mainstream Christian churches (as opposed to the underground ones discussed below at [15]). Accordingly, he would not face persecution on religious grounds if returned.

6    On the issue of the unhappiness of his spouse’s family about the age difference in their relationship, the Tribunal was not persuaded that this constituted persecution for any of the reasons specified in the Convention (i.e., race, religion and so on).

7    Turning then to the proceedings in the Federal Circuit Court, there was attached to the application filed in that Court a document which read as follows:

‘Orders sought by Applicant

1,     I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

2,     RRT did not consider my statement and comments given to the questions asked in the hearing.

3,     RRT failed to prudently consider our risk, especially my child due to my commitment of paralyzing if we return to origin.

4,     RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

5,     RRT treat my case unfairly and did not consider that I will be punished by the Chinese government due to family planning issue

The Grounds of the Application are:

1,     I am a Chinese citizen and have faithful and committed Christian faith. I have fear to be persecuted and discriminated by Chinese authority due to my political stance and will of evangelization, and have a fear of return to origin.

2,     I have been actively involved in church activities in Australia. My action and religious performance has been evidenced by church with reference.

3,     RRT unreasonable suspect of the truthfulness of my claims

4,     Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing’.

8    The Federal Circuit Court rejected all of these matters at [34]-[58]. It also rejected five arguments advanced only at the hearing at [14]-[33].

9    Distilling what appears in the written documents filed in this Court, the reasons of the Federal Circuit Court and what was put to me orally during the hearing, the following points appeared to be live in this Court and to require consideration:

(i)    the confusion about the Jehovah’s Witnesses;

(ii)    the explanation proffered for the appellant’s return to China on 18 occasions;

(iii)    the one-sided use of country information by the Tribunal;

(iv)    the confusion between ‘paralyse’ and ‘proselytise’; and

(v)    the age issue relating to his de facto spouse.

10    I will deal with each of these in turn.

1. The Confusion about the Jehovah’s Witnesses

11    During the course of the hearing before the Tribunal some confusion arose as to whether the appellant was contending he was a Christian or a Jehovah’s Witness. Whatever the cause of that confusion, it was immaterial to the Tribunal’s reasoning which correctly proceeded on the basis that the appellant was a Christian. This argument was advanced in the Federal Circuit Court as well. That Court thought that the argument went nowhere. I agree.

2. The Multiple Returns to China

12    The fact that the appellant kept returning to China throughout the many years in which he resided in Australia had a tendency to undermine his claims that he feared persecution if returned there.

13    This problem was initially raised with him by the Minister’s delegate at his interview on 3 October 2012. By way of explanation, the appellant argued that his visa in Australia only permitted him to stay in Australia for periods of up to three months so that he needed frequently to re-enter Australia. The Tribunal raised the same issue with him and he gave the same explanation.

14    It is clear from [42] in the Tribunal’s reasons that it was aware of the appellant’s argument. At [66] it used the appellant’s numerous returns to China as a matter detracting from his credit. It did not refer at [66] to the appellant’s argument it had already recited at [42]. However, I would not conclude that the Tribunal did not take the matter into account in assessing his argument. To read [66] that way would mean [42] was surplusage and such a reading would be unduly pedantic when conducting a review such as this: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. I would reject the argument.

3. The One-Sided Country Information Issue

15    One of the issues before the Tribunal concerned the two-tiered structure of Christian practice in China. Although Christianity is not banned in China, it is regulated and the Communist Party controls the appointment of bishops in the Catholic Church in a way which is not always consistent with the authority of the Bishop of Rome. Despite this, a large number of Christians in China are content with this arrangement. Some, however, are not. These persons prefer to worship at churches whose priests and bishops are in communion with the Holy See. These churches are known as ‘underground’ churches.

16    The Tribunal is empowered to use general information of the kind in the preceding paragraph which is about a country and its practices in the course of its decision-making processes and, so long as the information does not concern a visa applicant personally, it is not obliged to give a visa applicant any chance to respond to the information: see ss 424 and 424A of the Migration Act 1958 (Cth).

17    In this case, the Tribunal acted on some information it fossicked out from its bottomless databases which had been produced by the US State Department in 2012 and was entitled International Religious Freedom Report for 2012, China. The Tribunal thought this article indicated that ‘millions of Chinese are able to worship regularly at registered mainstream churches without practical hindrance for ordinary church members, although active participants in particular “underground” churches or congregations may attract adverse attention.’

18    The Tribunal then reasoned that, whilst it accepted that the appellant did have some connexion with Christianity in China prior to his departure, this was not a large part of his life and his spiritual needs – and here I am paraphrasing – could be more than adequately met by attending the State registered churches. Consequently, he had no faith based fears of persecution or at least not any which could be described as well-founded.

19    In this Court, the appellant’s complaint was that this was rather one-sided in the sense, as I apprehended the matter, that there was other information available about the practice of Christianity in China which might have contradicted the information relied upon by the Tribunal.

20    This may well be true, although the appellant did not take me to any such material. In any event, this is precisely what s 424A of the Migration Act 1958 (Cth) provides for. The Tribunal commits no error in deploying a procedural mechanism which the Parliament has decided that it should have.

21    The Federal Circuit Court dealt with this point briefly at [37] coming, more efficiently than I have, to the same conclusion. No error is disclosed in that reasoning.

4. The ‘Proselytised’ v ‘Paralysed’ issue

22    In the application filed by the appellant in the Federal Circuit Court, five prayers for relief were sought. Prayer 3 was as follows:

‘RRT failed to prudently consider our risk, especially my child due to my commitment of paralyzing if we return to origin.’

(my emphasis)

23    It is tolerably clear that the word ‘paralyzing’ is an error and should read ‘proselytising’. By itself, this is of no significance. However, in the Court below Judge Nicholls noted that the same error had been made in another case he had recently heard: SZUAE v Minister for Immigration & Anor [2014] FCCA 2017 at [12]. That paragraph in the reasons of Judge Nicholls recorded a prayer for relief numbered 3 which was in these terms:

‘RRT failed to prudently consider our risk, especially our commitment to paralyzing if we return to origin.’

24    These are not identical; the Order 3 sought in this case has a reference to a child which is lacking in the Order 3 sought in SZUAE. Nevertheless, it is very unlikely that these two orders are not related in some way. Whether they both descend from an earlier urtext or whether Order 3 in this case was drawn directly from Order 3 in SZUAE is an engaging question not necessary to answer.

25    It is not necessary to do so because Judge Nicholls’ only use of this matter was as part of his reasons for concluding that the orders sought were ‘formulaic’: [34]. The fact is that that conclusion is correct. From a lawyer’s perspective the relief sought in this case was formulaic. The five orders sought were:

‘1,     I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

2,     RRT did not consider my statement and comments given to the questions asked in the hearing.

3,    RRT failed to prudently consider our risk, especially my child due to my commitment of paralyzing if we return to origin.

4,    RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

5,    RRT treat my case unfairly and did not consider that I will be punished by the Chinese government due to family planning issue’.

26    In this Court, the appellant sought to downplay the force of Judge Nicholls’ observation by suggesting that such a slip on his part was hardly surprising given that he could not speak English. However, that was not really the gravamen of his Honour’s observation. In any event, I do not think that the reasoning was connected to the ultimate outcome; it was just a point made to emphasise an observation which was plainly correct, viz. that the orders sought were formulaic.

5. The Issue Relating to the Age of his Spouse

27    The Tribunal recorded at [7] the appellant’s de facto spouse was 31 years old. This was not correct. She is, in fact, 41 years old. The appellant is 64. Only one part of the appellant’s case in the Tribunal turned on his wife’s age. This related to the rejection of the relationship by the wife’s family on account of the age difference between them.

28    The Tribunal dealt with this argument at [90]. It rejected it because it concluded that any difficulties which might arise could not be said to amount to the kind of harm at which the Refugee Convention was directed.

29    I do not think that this reasoning would have been affected if the Tribunal had treated the age of the wife as 41 rather than 31. The Tribunal’s argument did not depend in any way on the size of the age differential. This was also the view of the Court below. In my opinion, no error is shown in that conclusion.

Result

30    The appeal will be dismissed with costs.

Associate:

Dated:    9 June 2015