SZCBN v Minister for Immigration - [2006] FMCA 192

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBN v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 192

MIGRATION – RRT decision – Applicant travelled on Korean passport but claimed persecution as a Chinese Christian – Tribunal did not accept that Applicant was Chinese – finding open to Tribunal – no jurisdictional error.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 474(1), 483A, Part 8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 432
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277

Applicant:

SZCBN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2643 of 2003

Judgment of:

Smith FM

Hearing date:

1 February 2006

Delivered at:

Sydney

Delivered on:

1 February 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms Mason

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2643 of 2003

SZCBN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 3 December 2003 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 14 October 2003 and handed down on 6 November 2003. The Tribunal affirmed a decision of the delegate which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of the present proceeding (see Sch.1, cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
The Court's jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia on 27 April 2002, presenting a South Korean passport giving her identity as a national of that country with a different name than the name she now claims is hers. According to the Tribunal, when it sighted the passport it revealed travel by the holder of the passport from an airport in South Korea to Malaysia, and then to Australia.
On 17 May 2002 a migration agent, Priscilla Yu, lodged an application for a protection visa in the name now claimed by the applicant, in which she claimed to be a national of the People's Republic of China and with different birth and family details. Attached to the application was a typed and signed statement which, in my opinion, the Tribunal sufficiently summarised in its reasons:
She states that her family belong to the Korean ethnic group in Shenyang, China. She speaks, reads, and writes Korean and Mandarin. She claims to have been a practising Christian since about 1993. She organised a Bible study group which attracted up to thirty-five members. The Bible study group was disguised as Korean Traditional Music group. She claims that the Bible study group was discovered by the authorities in 1996. In February 1996 she was arrested by the PSB. She was detained and interrogated. She was tortured, even though she was pregnant at the time. As a result of the mistreatment her son was born disabled. He is still unable to speak.
After this the Applicant was unable to practice her religion publicly. The police often came to her home, or asked her to report to the police station.
The Applicant states that in December 1997 two pastors from the official and authorised church came to her village or organise a local congregation. The Applicant states that she was refused permission to join this church because of her black background.
Eventually in March 1998 she was allowed to join on the proviso that she obeyed all their instructions. She found to hard to tolerate the pastors of this official church. She organised a protest against the government policies and asking for a genuine religious practice.
In May 1999 she was dismissed from the official church. From May to December she was forced to do hard manual labor on a farm. She was allowed to return home only when her son became seriously ill.
After this she was not allowed to practice her religion. On seven occasions she was forced to participate in political study. She was interrogated ten times. She was visited at home by the police.
She claims she knew that she had to leave China. She found the old Korean man, the priest who had introduced her to Christianity and he helped her to leave China.
She travelled to Australia on a passport issued by the Republic of Korea in March 2002. She states that the passport was organised by the priest.
The paragraph of her statement in which she described her travel was:
I therefore had to decide to leave that country. However, it was impossible for me to get my passport, and it was impossible for me to leave that country through any legal way. I therefore tried every means to find that old man of South Korea who used to teach me the Bible and the music. Eventually, I found him in February 2002. He never expected that I had ever been suffered to so may persecution, and therefore tired his best to save me out of the country. It was owing to his careful arrangement that I finally came to Australia
The visa application said that a document which would be provided later was “Chinese ID”. However, the delegate in his reasons for refusing the application said:
She claims that she is a Chinese citizen only, but has provided no documents whatsoever to support that claim. Although she stated she would be providing a “Chinese ID”, she has failed to do so up to this date, more than a month after lodging this application, and two months after arriving in Australia, and I am not prepared to delay any further making a decision on this application.
The delegate said that he was unable to positively determine the nationality of the applicant, and on balance believed she was a national of the passport she had used.
The applicant filed an application for review by the Tribunal assisted again by her agent. This attached a submission which implicitly relied upon the previous written statement, and maintained the contention that she was “from the People's Republic of China”. The applicant did not, however, give any more details about her claims, nor provide any supporting documents, in particular, to establish her nationality.
She attended a hearing to which she was invited on 1 July 2003, where she presented a certificate from a local church that she “is a pious Christian at our church”. The Tribunal in its reasons records its questioning of the applicant to clarify her movements before coming to Australia. According to the Tribunal:
The applicant states that she has never been to Korea. It was put to the applicant that the passport was stamped in Korea as the holder having left Korea on 24 April 2002 from Inchon and then travelled to Kuala Lumpur, staying two days then flying on to Melbourne. The applicant states that this must have been the person whose name is on the passport.
The applicant states that the passport was brought to her in China by a priest in February 2002. She states she left China using this passport. She did so by going to Hong Kong by boat and leaving from there.
It was pointed out to the Applicant that there was no exit stamp from China or Hong Kong. The Applicant responded that she does not know how to put it. The Applicant says that the passport is false and she is Chinese.
It was put to the Applicant that she had just claimed to have left China on this passport. This could not be true as there are no stamps for China or Hong Kong. She states that she has made a mistake. She does not know how to answer this.
The Applicant stated that a priest organised for her to leave China. He took her out of the country (China). She does not know how but he took her out of the country. He organised all these things for her. …
She states that she flew from Hong Kong to Malaysia. She stayed for two days in Malaysia, before coming to Australia.
It was put to the applicant that she had not left China on the Korean passport. She was offered time to reconsider her application and find any other evidence which may assist her case. A further hearing was arranged.
The Tribunal appointed a further hearing for 31 July 2003.
Her agent on 1 July 2003 forwarded a letter to the applicant saying that she was:
Instructed to provide the following documents in support of above application: certified copy of notarial certificate of birth, certified copy of notarial certificate of marriage.
These were documents in Chinese characters, whose translation said that they were certificates of birth for the Chinese person who the applicant now claims to be and a marriage certificate for that person.
In its reason, the Tribunal refers to the applicant referring to these documents when she attended the further hearing, and as also saying that “she has a paper which says that she is a Chinese citizen”.
At the hearing before me today, the applicant claimed to have a Chinese identification card, but she told me that this had not been given to the Tribunal because she had not been told to do so by her solicitor.
Under further questioning by the Tribunal at the second hearing:
She says she knows nothing about the passport as the passport was arranged by the priest. She now says she did not get this passport until she arrived in Malaysia.
It was put to the Applicant that she had said at the last hearing that the passport was given to her in China in February 2002. She says that she cannot recall what she said last time.
The applicant was asked, if she had not used this passport what passport she has used to leave China. She says that because everything was arranged by the priest all she needed to do was step on the plane and come.
Clearly the applicant's evidence under questioning concerning the stamps in the passport which she had presented on arrival in Australia was most unsatisfactory, and it formed the basis for the essential reason for the Tribunal's decision to affirm the delegate's decision. The Tribunal said:
I do not accept that the Applicant is a Chinese national. She is probably Korean. As there are no claims made against Korea, there is no basis on which I can conclude that the Applicant has a well founded fear of persecution should she return there.
Even if the Applicant is Chinese as she claims I do not accept that she has a well founded fear of persecution. Her claims to have been a Christian and to have been persecuted in China are unsupported by any independent evidence. Having heard her evidence as to her claimed experiences in China, and taking into account how unreliable was her evidence on matters which could be checked, I do not accept that her claims are true.
While I accept that there is evidence that some Christians in China, in particular those belonging to unofficial churches, have been persecuted, I do not accept that the Applicant has been persecuted in China or that she is at any risk of persecution in China in the foreseeable future.
I am not satisfied that the Applicant has a well founded fear of persecution. I am not satisfied that she is a refugee.
In my opinion it was clearly open to the Tribunal to take an adverse view of the applicant's credibility, and to be left unable to be satisfied that she was not a national of Korea as shown in the passport. It was also open to the Tribunal to have been left in a state of disbelief of her claims to have suffered persecution in China, in the event that in fact she is a Chinese national with the name she presently claims.
The grounds for review in the applicant's original application in this Court have been repeated in an amended application, with some additional contentions. These appear under the heading “Particulars” of general contentions of error of law and procedural error by the Tribunal.
Particulars A and B contend that the Tribunal:
Failed to give me complete information which is being used as the reasons for affirming the unfair decision of the Department.
and suggest a failure to follow the duty under s.424A(1).
However, I do not consider that this happened. The information which the Tribunal took from the applicant's passport appears to me to have been obtained at the hearing, in particular since the pages from the passport which were originally copied for the Department file do not contain some of the information to which the Tribunal refers. Moreover, as I have indicated, the essential reasoning of the Tribunal was based upon the inconsistent and unbelievable evidence of the applicant concerning her travel, which the applicant also “gave” to the Tribunal at its hearing (c.f. s.424A(3)(b)).
Particular C contends that the Tribunal's finding that the applicant was “probably Korean” was affected by a failure by the Tribunal to take “any substantial steps to confirm my Chinese nationality, nor use any substantial methods to investigate or to test my Chinese nationality”.
In her oral submissions to me today, the applicant suggested that the Tribunal should have inquired at the Korean Embassy. It is unclear to me what this would have revealed, other than to confirm the apparent authenticity of the Korean passport.
In any event, I accept the submissions of counsel for the Minister that the Tribunal was under no duty itself to conduct further investigations into the nationality of the applicant (see: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 and W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 432).
A central point in the applicant's submissions was to maintain that she was a Chinese national and to invite me to make a finding to that effect. However, as I have indicated to her it is not part of my function when reviewing the Tribunal's decision to make such a finding.
The applicant referred to the marriage and birth certificates which had been given to the Tribunal as evidence to prove her identity, implicitly arguing that this was overlooked. The Tribunal does not discuss this evidence under its ‘findings and reasons’, but I am not persuaded that it overlooked it. It referred earlier to the applicant's presentation of those documents. They were not themselves conclusive of her identity, and in view of the reasoning followed by the Tribunal I do not consider that its failure to discuss them further establishes a failure to take them into account.
Particular D in the amended application says:
The Tribunal believes that my 'claims to have been a Christian and to have been persecuted in China are unsupported by any independent evidence…'. However, the Tribunal has obviously failed to consider independent country information. (Referring to country reports about the persecution of members of the Underground Church in China)
The abovementioned information has strongly supported my claim - no religious freedom in China, because all of religious activities or organisations maybe strictly restricted, controlled, monitored and supervised by the Chinese government.
However, in my opinion this ground misunderstands the Tribunal's reasoning. The Tribunal itself extracted material from a US State Department International Religious Freedom Report for China, which identified measures taken by the Chinese authorities to control unregistered religious organisations. The Tribunal accepted that there was evidence that some Christians were persecuted in China. However, it reasoned that it was unable to believe that the applicant was such a person due to its opinion as to her general credibility. This reasoning was open to the Tribunal, and I am not persuaded that there was any part of the applicant's claims which the Tribunal failed to consider.
For the above reasons, I am not persuaded that the Tribunal's decision was affected by jurisdictional error. It therefore is a privative clause decision within s.474(1) of the Migration Act and I must dismiss the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 15 February 2006