NBMH v Minister for Immigration
[2006] FMCA 1446
•29 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBMH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1446 |
| MIGRATION –Review of Refugee Review Tribunal decision – application for protection visa – no jurisdictional error – application dismissed |
| Migration Act1958 (Cth), ss.422B, 424A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 NABE v MIMIA (No.2) (2004) FCAFC 263 Re: MIMIA Ex-parte Applicant S 20/2002 (2003) 198 ALR 5 Re:MIMIA Ex Parte Durairajasinghan (1999) 168 ALR 407 |
| Applicant: | NBMH |
| First Respondent: | MINIMSTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2995 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 27 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2006 |
REPRESENTATION
| Applicant: | Self Represented |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the Application be dismissed.
That the Applicant pay a contribution to the costs of the First Respondent fixed in the sum of $5000 within 90 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2995 of 2005
| NBMH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of the Peoples Republic of China who arrived in Australia on 3 November 2004 and applied for a protection visa (class XA) visa on 13 December 2004. On 10 February 2005 a delegate refused to grant a protection visa and on 15 March 2005 the Applicant applied to the Refugee Review Tribunal (“RRT”) for review of that decision.
On 9 August 2005 the learned Member handed down his decision and reasons for affirming the delegate’s decision not to grant a protection visa.
Application for review
The Applicant’s initial Application filed 2 September 2005 was, as I will shortly observe, based on grounds which could generally be described as an attempt by the unrepresented Applicant to re-agitate the merits of the matter. As I sought to carefully explain to the Applicant in the hearing before me, it is not a permissible exercise of this Court’s powers to redetermine the questions of fact which the RRT was required to decide.
It seems, despite failing to observe the time limits imposed by the Order of Registrar McIllhatton on 7 October 2005 to file any Amended Application by 2 December 2005, that after receiving some legal advice the Applicant filed and served an Amended Application for review on or about 19 September 2006. The Minister did not object to the Application proceeding on the basis of the Amended Application and did not seek an adjournment.
For completeness, Ms Clegg for the Minister relied upon her written submissions filed 19 September 2006, drawn in anticipation of the Application being that as originally filed. I agree with the submissions set out at paragraphs 13 and 14 of the Respondents written submissions. To some extent, but in a slightly different form, the Applicant has redrawn the fourth ground of the original application (so for as it relates to the Tribunal’s reliance on the independent country information) and it is more convenient to deal with that contention further in these reasons.
The Applicant, in the Amended Application, sought to review the earlier grounds relied upon. It may have been his intention to abandon the earlier grounds yet I have dealt with them anyway.
The grounds of review now relied upon can be distilled as follows (adopting the Applicant’s articulation):-
a)In relying, as it did, upon independent country information as set out in the reasons) the Tribunal failed to comply with its obligations under s.424A of the Migration Act1958 (Cth).
b)The Tribunals’ decision is in breach of s.422B of the Act and the principles of “natural justice”.
c)The Tribunal’s decision is tainted by factual error “which is legal error in nature”.
Tribunal decision
The factual foundation for the Tribunal’s decision was, unlike some cases, constructed through a comprehensive process entailing:-
a)The initial consideration of the Department file and Application for Review, after which the Tribunal indicated to the Applicant that it was unable to make a decision in his favour on this information alone. The Application was invited to attend a hearing set for 24 May 2005 and also, inter alia, to “send us any new documents or written arguments you want the Tribunal to consider”.
b)The Applicant caused a further written statement to be provided via his Migration Agent (see CB 46-47) which was accompanied by some photographs (CB 43-44) which depict the Applicant to be in or around church premises.
c)The Applicant appeared at the hearing. A transcript of those proceedings has not been placed in evidence before this Court.
d)
During the course of the hearing the members reasons (CB 68) record that the Applicant’s Advisor said he “had wanted the Applicant to obtain evidence of his participation in church activity in Australia in the form of a letter from a priest.”
It seems that the witness the Applicant wished to call, Father Tung Chung of St Dominici’s Church, Flemmington (the Church depicted in the photographs) was on holidays and unavailable. The reasons record that the “Applicant provided a contact number for the priest and confirmed that he had no objections to the Tribunal contacting him to ask about his attendance at Church”. On 7 June 2005 the Tribunal took evidence by telephone from Father Tung Chung. It is not clear to me from the reasons how this evidence was taken, and whether it was recorded or given on oath. It seems clear from the reasons for Decision at CB 69-70, that the Tribunal sought information from Father Tung Chung which went much further than merely confirming the Applicant’s “attendance at Church”.
e)After speaking with Father Tung Chung, the Tribunal caused a letter to be sent to the Applicant on 7 June 2005, informing him of information received from Father Tung Chung, that would “subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa”. The terms of that letter appear at CB 50-51, and are accurately set out in the Member’s reasons.
f)The letter referred to above clearly was intended to meet the obligations of the Tribunal to put adverse information that could be relied upon, for comment by the Applicant. The Applicant did respond by letter dated 27 June 2005 (CB 52-53) via his Migration Agent Mr Ping Zhang. That letter was supported by an annexed letter from Fr Paul McGhee (assistant Pastor, Chinese Catholic Community of West Sydney). The response was incorporated in the reasons of the member (see CB 71-72).
Although I have no transcript of the Hearing before the Tribunal, the learned member in his reasons details at some length issues raised with the Applicant by him (see CB 64-68). It is clear that the member decided to take a very inquisitorial approach – with some questions seemingly directed, or designed, to identify the Applicant’s understanding and knowledge of Christianity generally and practise specifically of the Catholic faith.
It is not necessary in these reasons to incorporate verbatim the passages from the Tribunal decision which are before the Court both as an annexure to the Applicant’s Affidavit filed 3 September 2005 and at CB 58-81. I adopt as a succinct summary of the findings of the member, paragraph 12 of the Respondent’s submissions as follows:-
“12. The Tribunal:
a)was not satisfied that the Applicant had given a truthful account of his employment history in China;
b)was not satisfied the Applicant gave an accurate account of his baptism and did not find his account credible;
c)took into account the advisor’s arguments that the Applicant could not express himself and was nervous. The Tribunal was satisfied that the Applicant was not prevented from explaining his experiences and concerns during the hearing;
d)was not satisfied that the Applicant’s description of his religious activities in China was credible;
e)was not satisfied that the Applicant’s knowledge of Christianity is consistent with his claim to have been a practising Catholic;
f)was not satisfied that the Applicant was detained in a labour camp for 12 months as he had claimed;
g)was not satisfied that the Applicant had provided a truthful account of the circumstances in which he had obtained a business visa for Australia;
h)accepted that the Applicant had been regularly attending Sunday Mass in Sydney, but was not satisfied that the Applicant chose to do so for any reason other than to strengthen his claim for protection – and disregarded the conduct under s 91R(3) of the Act;
i)considered and rejected a possible claim on the basis of political opinion;
j)concluded it was not satisfied that the applicant had ever been a member of an underground church or that he had been harmed by Chinese authorities for that reason. It followed that the Tribunal was not satisfied the applicant would suffer serious harm amounting to persecution at the hands of the authorities should he return to China.”
Error of fact allegation
I regard this contention by the Applicant as raising his strongest point in the Application before me. The Applicant makes the submission that:-
“In the Tribunal’s decision (Court book page 77, the last paragraph of the page) the Tribunal said that “the Tribunal is not satisfied that the Applicant’s knowledge of Christianity is consistent with his claim to have been a practising Catholic for some twelve years in China…”
This is a factual error. I told the Tribunal that I was baptised in year 2000 but the Tribunal made mistake on this important factor. The Tribunal, based on this wrong assumption, to draw its conclusion that my knowledge of Christianity is not consistent with my Catholic believe (sic).”
The Minister by her Counsel Ms Clegg properly conceded that there was no evidence to support a finding that the Applicant had ever made a claim to “have been a practising Catholic for some twelve years in China”. This statement at CB 77 was made in the context of the member’s identification of a number of reasons why “the Tribunal is not satisfied as to the accuracy of the Applicant’s claims concerning his experiences in China and membership of the underground church…”
The statement of fact is at odds with other statements and the clear enunciation of the Applicant’s claim that after being miraculously cured of a stomach complaint in late 1999 (which he attributed to his wife and other Catholics from his village preparing for his recovery) “in May 2000 he was baptised and started his new life as a Catholic” (CB 61).
This claim was the Applicant’s consistent assertion in his initial statement given 1 December 2004 and his claims at the hearing (CB 65), although he seemed to have been confused as to whether he was baptised in May 2002 or May 2000 when questioned by the Member.
This issue was raised again by the Member when giving reasons for his conclusion that the Applicant had not provided an accurate account of his claimed baptism as a Catholic, when (at CB 76) the Member says, inter alia that:-
“In reaching this conclusion the Tribunal has taken into account the fact that the baptism is said to have occurred some years ago – either in 2000 or, as claimed by the Applicant at one point of the hearing, in 2002.”
The Member said that the Applicant’s account of his baptism “raises real doubts as to whether it ever took place”.
The error of fact identified by the Applicant at CB 77 is duplicated later in that section of the Member’s reasons, when still discussing the Applicant’s knowledge of Christianity when he says as CB 78 that:-
“The Tribunal acknowledges that, in his Application for protection, the Applicant states that he is a relatively new Catholic who does not know much about Catholic teachings but that he is nevertheless genuine in his belief. The Tribunal accepts that this would explain an inability on the Applicant’s part to provide a full description of Christian belief or the nature of the underground church in China. However, the Applicant claims to have been a practising Christian for some twelve years and, as such, the Tribunal is not satisfied that his statement explaining his ignorance of such basic questions as how long ago Jesus was born, the identity of the writer of the letter to he Corinthians in the New Testament or the home of the Archbishop of the underground Catholic Church in Fuzhou, the capital of the Applicant’s own province of Fjuian”.
In Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137] the High Court made it clear that there was no error of law in making a wrong finding of fact. Further, generally an error of fact does not amount to a jurisdictional error because, as the Full Court in NABE v MIMIA (No. 2) (2004) FCAFC 263 observed,:-
“Error of fact, although amounting to misconstruction of an Applicant’s claim, may be of no consequence to the outcome.”
I also am aware of the cautious remarks of the High Court in RE: MIMIA Ex-parte Applicant S 20/2002 (2003) 198 ALR 59 that:-
“absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error are likely to be quite limited.”
Counsel for the Minister described the error as “inexplicable” and speculated that it may be a mere typographical error. I agree, when read in the context of the whole of the reasons and the apparent acceptance of the Member that the Applicant converted to the Catholic faith in May 2000 as the Applicant claims, that a calculation of 12 years as a practising Catholic is a clear unexplained error.
However, considering the other recorded grounds upon which the Member sought to support his finding of inaccuracy of the Applicant’s claims (which while not strenuously challenged by the Applicant, were clearly open on the evidence), I am not satisfied that this error of stated fact is not so material as to taint entirely the process or decision of the Member.
Alleged breach of s.424A
The reliance by the Member of the independent country information and the way it was used demonstrates no jurisdictional error. Section 424A (3)(a) of the Act, provides an exclusion to the general thrust of
s.424A for information:-
“that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member.”
The independent country information falls within this class of information.
Failure to Comply with s.422B
The Applicant’s complaint is generally expressed in these terms:-
“The Tribunals’ decision records reveals (sic) that in reaching its conclusion that I was never genuinely a Catholic, the Tribunal took into consideration the evidence of an Australian priest in relation to the normal practice and procedure of baptism and service.”
Father Tung Chung was nominated by the Applicant as a person who could confirm his attendance at the Church. It is not clear at all what Father Chung’s experience in China with the underground Catholic Church may have been, however it is clear that he was asked to provide further information to the Member.
If the Member had not put the information offered to the Tribunal by Father Tung Chung to the Applicant that would have been a clear breach of s 424A. However, by letter dated 7 June 2005 the Tribunal did give the Applicant notice of some information which Father Tung Chung gave, upon which the Applicant made comment in his authorised reply.
Although the Applicant is clearly unhappy with what Father Tung Chung told the Member, and whilst he might say the discussions ventured past the issue of his attendance at Church in Australia into other aspects of the case, the Tribunal has in my view, complied with the requirements of s.424A of the Act.
Conclusion
To a large degree, as is often the case, there were a number of findings made by the Member which were shaped by a general finding of credit (see CB 76-77). A finding of credibility is the “function of the primary decision maker par excellence” (see the often quoted remarks of McHugh J in Re: MIMIA Ex Parte Durairajasinghan (1999) 168 ALR 407.
I did consider whether the extensive examination by the Member of certain aspects of Christianity and practising the Catholic faith could be said to have been unfair to this Applicant – a form of religious testing against some assumed basic standards or levels of knowledge. In some cases this could amount to jurisdictional error.
I have formed the view that in a case like this one where there was little corroborative evidence of his practise of his faith in China and some merely generalised statements offered by the Applicant, the level or focus of the questioning approached but did not exceed a permissible level.
The Applicant has not been able to identify, in my view, any jurisdictional error and as a result I am bound to dismiss the Application, as I intend to so order.
I will make the usual order for costs, which should follow the event, namely that the Applicant pay a contribution to the costs of the First Respondent fixed in the sum of $5000 within 90 days.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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