SZENC v Minister for Immigration - [2005] FMCA 864

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZENC v MINISTER FOR IMMIGRATION

[2005] FMCA 864

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65(1)(b), 91X, 420, 422B, 426A, 427(1)(b)
Judiciary Act 1903 (Cth), s.39B

VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Multicultural Affairs v Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:

SZENC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3042 of 2004

Delivered on:

30 June 2005

Delivered at:

Sydney

Hearing date:

26 May 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent:

Mr J A C Potts

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3042 of 2004

SZENC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 1 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 July 2002 and handed down on 6 August 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on

22 March 2001 to refuse to grant the applicant a protection visa.

Background

The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZENC”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 9 December 2000. On 19 January 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-26) (“CB”). On

22 March 2001 the delegate refused to grant a protection visa (CB pp.32-38) and on 26 April 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.39-42).
In her original visa application, the applicant claimed she is a citizen of the People’s Republic of China and is a married Christian woman born in July 1962 in Longtian town, Fuqing City in the Fujian province of China. The applicant stated that her parents, husband and three daughters reside in China. She stated that she has tertiary qualifications and had worked as a high school teacher in Longtian from 1986 until December 2000 except for a period in June 1989 to December 1992 when she was forced to do reform through labour because of her involvement in the pro-democracy movement.
The applicant stated that she had lived at the one address in Longtian until she came to Australia. She claimed she left China to escape persecution and that if she returned to China she feared she would suffer brain washing, arrest, detention and imprisonment by Chinese authorities because of her religious beliefs, political opinion and membership of a particular social group, being those who breached the one child policy in China. The applicant claimed that, in addition to reform through labour because of her adverse political profile with the pro-democracy movement in 1989, she was constantly harassed and criticised because of her religious beliefs. She claimed she was a leader of “our family church” and was in danger because of the church’s secret gatherings and preaching (CB p.87).

Applicant’s claim

On 26 March 2002 the Tribunal received a statutory declaration from the applicant completed with the assistance of a recently engaged registered migration agent. In her statutory declaration the applicant made a number of alternative claims in respect of her name, age, educational background and circumstances (CB pp.65-68). The contents of the statutory declaration revealed the following:
a)the applicant came to Australia using a passport issued in a false name and she provided her real name and details;
b)the applicant had married in 1995 and her three daughters were born in 1996, 1997 and 1998;
c)the applicant did not know where her third daughter was as she had been taken by the “Birth Control Office” in November 1998;
d)the applicant’s son was born in Australia in 2001;
e)the applicant had suffered persecution in China owing to the one-child policy;
f)after the applicant’s second child was born, she had to escape as the Birth Control Office intended to arrest her, but her father was arrested and cruelly tortured in the detention centre for two months;
g)in November 1998 the Birth Control Office discovered the birth of the applicant’s third daughter and took the child away. The applicant was told she had to pay to get her daughter back but subsequently when the money was paid, the applicant was told that they had lost her daughter;
h)in May 1999 the applicant decided to sue the Birth Control Office but she could not find a lawyer and the court would not accept her case;
i)on 1 June 1999 the applicant publicly protested about the Birth Control Office and was arrested and detained for nearly a month;
j)after the applicant’s period of detention, she had to give herself to the Christian Church in order to have “a peaceful mind”;
k)the applicant had come from a Christian family that had been persecuted for its religious beliefs;
l)in December 1999 the applicant organised a choir in her family church in which she taught holy songs;
m)in October 2000 she was reported to the government as being a key member of an underground church, especially in charge of the choir, and she had to escape from her home town as police came to arrest her;
n)because the authorities could not find her, the applicant’s father was again arrested and her husband ran away with their other two daughters; and
o)the applicant could not find anyone to help her but religious brothers and sisters were kind to her and obtained a passport in a false name which she used to travel to Shanghai in December 2000 and then to Australia.

The Tribunal’s findings and reasons

Mr J A C Potts of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained a convenient summary of the Tribunal’s decision for the Court. That summary is reproduced as follows:
a)The Tribunal recited at length the applicant’s claims (CB p.87) and reviewed the country information (CB p.84). The Tribunal expressed grave doubts about the applicant’s credibility in relation to key issues because her claims changed over time, her documentary evidence was contradictory and her oral evidence was often highly confused (CB pp.87-92).
b)The Tribunal was satisfied that the applicant was a citizen of the People’s Republic of China. The Tribunal accepted that the applicant was who she claimed to be, despite the false passport. It also accepted that she was married with three daughters and a son (CB p.95).
c)The Tribunal did not accept the applicant performed reform through labour from June 1989 to December 1992, as a result of her involvement in the 1989 pro-democracy movement as claimed in her protection visa application. This claim was not repeated in the statutory declaration or her oral evidence. The applicant’s oral evidence was that she was self-employed in 1989-1992 (CB pp.95-96).
d)The Tribunal did not accept that the applicant or her passport had been blacklisted or more generally, that she faced persecution on return to China because she left the country on a false passport. That claim was not pursued by the applicant and there was nothing to suggest that the Chinese authorities knew how she left the country. In any case, the Tribunal referred to the penalty for using another person’s document to exit China and accepted that ordinary non-discriminatory enforcement of a law of general application was not persecution (CB p.96).
e)The Tribunal accepted that the applicant had breached the one-child policy. The Tribunal had difficulty with the various accounts of the consequences the applicant experienced because she had breached the one-child policy. The applicant’s oral evidence was confused and contradictory. The Tribunal accepted that the applicant and her husband were fined for the births of their second and third children. The Tribunal did not accept that the applicant’s father was tortured and detained for two months in September 1998 as the claim was not plausible nor consistent with independent country information. The Tribunal accepted that a local Birth Control Office or an employee of that Office may have acted unilaterally and without authority by holding the applicant’s third child hostage for the payment of a fine for breaching the one-child policy, and that somehow the baby was “lost”. The Tribunal also accepted that the applicant assaulted the head of the Birth Control Office, however she specifically told the Tribunal that she was not punished or penalised for this. The Tribunal was not, however, satisfied that this incident occurred for a Convention reason (CCB pp.96-97).
f)The Tribunal was not satisfied that the applicant sued the Birth Control Office. It accepted that she complained publicly about losing her child and the Tribunal was satisfied that the applicant was arrested because of her public protests about the loss of her child rather than for religion or political opinion. In any case, even if the applicant’s complaint was perceived as a political opinion against the government, the Tribunal noted that the applicant did not claim to fear harm if she returned to China for this reason (CB p.97).
g)The Tribunal noted that the application of the one-child policy did not amount to persecution within the meaning of the Convention. The Tribunal was satisfied that the penalties for breach of the one-child policy were prescribed in laws of general application and the applicant did not claim nor was there evidence to suggest that she was or would be differentially affected for a Convention reason (CB p.98).
h)The Tribunal found that the applicant’s claims about her religious activities were inconsistent (CB p.98). Despite this, it accepted that she was a Christian from a Christian family. It accepted she was a member, not a leader, of a small family church and that she taught children songs. The Tribunal accepted as plausible that the applicant may have been warned by the authorities against teaching children. However, the Tribunal did not accept that the applicant had been arrested, her home ransacked, religious literature confiscated and church members detained, or that her father was arrested, because the applicant’s evidence was inconsistent, unconvincing and unsupported by independent country information about the tolerance shown, especially in Fujian, towards small discreet family or home church groups (CB p.98).
i)The Tribunal was satisfied on the basis of independent country information that the applicant could, on return to China, continue to practise her Christian religion in her small family church without having to teach children religious songs if that was of concern to authorities. The Tribunal was satisfied that teaching children religious songs was not an essential part of her religious belief and practice (CB p.91).
j)The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention (CB p.99).

Application for review of the Tribunal’s decision

On 1 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 20 April 2005 the applicant filed an amended application which contained the following grounds:
1.The decision of the Refugee Review Tribunal dated 15 July 2002 was made in jurisdictional error in that the decision of the Tribunal to proceed with the hearing of the applicant’s application in the absence of the applicant under s426A of the Act was manifestly unreasonable.
2.I am a citizen of China who claims to have well-founded fear of persecution for reasons of my political activities in 1989 and my religious belief and who breach the one-child policy in China.
3.The Tribunal was in error law those finding were open to it from my side fact and evidence.
4.There is on the face of the Tribunal decision no basis for making such a statement. The Tribunal member is substituting her view. This is no more than a personal judgment view without any foundation in evidence.
The applicant attended a directions hearing on 30 August 2004 and by consent to Short Minutes of Order agreed to file and serve an amended application giving full particulars of each ground of review to be relied upon by 11 October 2004. Further, she agreed to file and serve any written submissions on or before seven working days prior to the hearing date. These orders were complied with.

Applicant’s submissions

At the hearing, the applicant appeared self represented with the aid of a Mandarin interpreter. On 12 May 2005 the applicant filed a document titled “Applicant’s Outline of Submissions” which began with a brief history of the applicant and then a subheading “Request for further and better particulars”. Under the subheading were listed four questions relating to the grounds of review and answers in respect of each of these questions. A substantial part of the outline of submissions summarised the Tribunal’s decision but it was difficult to determine how the submissions would assist the applicant in the presentation of her case.
When the applicant was invited to make oral submissions in support of her application, she made no reference to the written submissions but instead recounted in some detail her breach of the one-child policy and her departure for Australia when she found she was pregnant with her fourth child.
The applicant suggested that the Tribunal member did not have an in depth knowledge of her case and that the applicant had no understanding of the Australian legal system which put her at a considerable disadvantage. She stated that this situation was further aggravated by not having a work permit and that she faced financial difficulties.

Respondent’s submissions

Mr Potts of Counsel, appearing for the respondent, filed an outline of submissions prior to the hearing which contained the following contentions:
a)The first ground was difficult to comprehend as it bore no relationship to the facts of the case. The applicant appeared at two hearings before the Tribunal (CB p.87). The first hearing was adjourned as the applicant’s baby was obviously unwell (CB p.88). The applicant gave extensive evidence at the resumed hearing on 27 March 2002 (CB pp.90-92). The Tribunal did not proceed pursuant to s.426A.
b)The second ground was no more than a restatement of the applicant’s claims and was not a proper ground of review.
c)
It was difficult to understand the third ground of review.

It seemed to complain about the Tribunal’s findings of fact and to be a complaint going to the merits of the Tribunal’s decision.
d)The fourth ground referred to a “statement” but did not actually identify what statement was being referred to by the applicant. The applicant complained that the Tribunal member was substituting a personal view without any foundation in evidence. That was simply incorrect and the Tribunal member referred at length to the evidence she founded the decision on.
e)In relation to the fifth ground of an alleged breach of s.420 of the Act, the substance of the applicant’s complaint seemed to be that the Tribunal did not provide a mechanism of review that was just or fair. The basis for the complaint seemed to be that the Tribunal made adverse findings against the applicant. The applicant’s complaints in this regard really amounted to disagreement with the Tribunal’s findings of fact and the merits of the decision.
f)
The sixth ground raised the issue of denial of natural justice.

It was conceded that s.422B did not apply in this case. The applicant made vague references in her outline of submissions to independent evidence not having been disclosed to her for comment. The applicant did not identify with any precision what that evidence was. Equally, the applicant put forward no evidence as to what transpired at the Tribunal hearing. It was submitted that the Court cannot be satisfied that the critical matters were not disclosed to the applicant during the hearing and this ground should fail at the threshold for want of proof.
g)The seventh ground related to the Tribunal’s alleged failure to investigate pursuant to s.427(1)(b) of the Act. The Tribunal was under no duty to investigate the applicant’s claims nor under any duty to consider utilising such permissive statutory powers as it has which might enable it to investigate (e.g. s.427): VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [27]; NAYU v Minister for Immigration & Multicultural & Indigenous Affairs at [18]-[21]; WAGJ of 2002 v Minister for Immigration & Multicultural Affairs at [21], [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs at [47]-[48].
h)The Tribunal’s decision does not disclose any reviewable error. The conclusions reached by the Tribunal on the facts were open to it on the material before it. It was clearly open to the Tribunal to be unsatisfied that the applicant met the criteria for the grant of a protection visa. If it was not satisfied that the applicant met those criteria, it was obliged to refuse to grant the visa: see s.65(1)(b) of the Act, Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 at [16]-[17].
i)The conclusions reached by the Tribunal on the facts were open to it on the material before it. Its rejection of the applicant’s credibility was based upon the material before it, which was logically probative. Findings on credibility are the function of a primary decision maker “par excellence”: Minister for Immigration & Multicultural Affairs v Durairajasingham at [67] per McHugh J. So long as the Tribunal’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs at 558-559.
j)Nothing in the High Court’s decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) affects the validity of the Tribunal’s decision in this case. The only effect of that decision may be that, given the application purports to be brought pursuant to s.39B of the Judiciary Act 1903 (Cth), it is clear from the High Court’s decision that the Tribunal is a necessary party if prerogative relief is to be directed to the Tribunal. That problem will, of course, only arise if the applicant demonstrates jurisdictional error. In the respondent’s submissions, no such jurisdictional error is present.
k)The applicant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos: R v Hickman; Ex parte Fox and Clinton. The applicant has not therefore demonstrated any entitlement to relief.

Reasons

Ground 1 of the applicant’s pleadings claimed that the Tribunal proceeded to its decision under the provisions of s.426A of this Act. This ground is misconceived as the Tribunal made no reference to proceeding on this ground and the facts, as they are reported in the decision, were contrary to this contention. In the delegate’s decision, made by Katherine Gabriel on 22 March 2001, it was recorded under s.3.2.2.3 “Findings of Fact / Reasons for Decision” (CB p.36) that the applicant was invited to attend a Departmental interview to discuss the claims she had made in her application. The Department received no response from the applicant in relation to the invitation. The applicant did not attend that interview and the delegate’s decision noted that, as a consequence of the applicant’s non attendance at the interview, the delegate was unable to ascertain a number of details which were lacking in the applicant’s written statements and which would have assisted in establishing the overall credibility of her claims (CB p.37).
In respect of the Tribunal hearing, an invitation dated 7 January 2002 was forwarded to the applicant inviting her to attend a hearing on

25 February 2002 (CB pp.45-46). On the day of the scheduled hearing a letter was faxed to the Tribunal indicating the applicant would not be able to attend the hearing on that day as her baby was unwell and

the applicant was seeking an alternate hearing date (CB p.47). On

11 March 2002 the Tribunal forwarded a further invitation indicating the hearing had been rescheduled to 21 March 2002 (CB pp.59-60). The applicant attended the Tribunal hearing with her baby on that date but the Tribunal recorded the baby was obviously unwell and the hearing was adjourned. At that time, a new letter dated 21 March 2002 was handed to the applicant with a rescheduled hearing on 27 March 2002 (CB pp.61-62). The applicant attended the Tribunal on 27 March 2002 and details of the discussion held at that time were recorded in the Tribunal’s decision (CB pp.90-92).
There may have been some confusion by the person assisting the applicant in the preparation of her amended application leading to the confusion of the decision of the delegate and that of the Tribunal. However, it was clear from the Tribunal’s decision that the applicant did attend a hearing and there was no reference in its decision in respect of s.426A. This ground cannot be sustained.
In respect of the second ground, I accepted the respondent’s submissions that was a restatement of applicant’s claim and was not a ground of review.
In respect of the third ground, I again accepted the respondent’s submissions that this ground appeared to be questioning the Tribunal’s findings of fact and raised the issue of a merits review.
The fourth ground raised the complaint that the Tribunal member was substituting a personal view without any foundation in evidence. There was no particularisation for this ground and it was not apparent that any error of this nature had been made. The Tribunal’s decision clearly set out the evidence upon which the decision was made. The evidence was marshalled into discrete sections and the decision making process reviewed that material in a logical pattern. From a fair reading of the decision it was not possible to identify any material in which the source was not recorded. This ground cannot be sustained.
The fifth ground was not contained in the original or amended application. However, in the applicant’s outline of submissions there was a reference to s.420 of the Act and it was raised in the context of the first ground. The submissions contained the following statement:
“1(a) The procedures to comply with the provisions of s420 of the Migration Act 1958 that the Tribunal is to pursue the objective of providing a mechanism of review that is “fair, just, economical, informal and quick” “must act according to substantial justice and the merits of the case”.
In the absence of any further reference to an alleged breach of s.420 and to deal with this alleged breach, it must be assumed that the applicant’s complaint was that the Tribunal made adverse findings against her. This must be further assumed to be a disagreement with the Tribunal’s findings of fact and a further attempt to seek a merits review of the Tribunal’s decision. This ground cannot be sustained.
Ground six was also referred to in the applicant’s outline of submissions although it was not specifically pleaded in those terms. The suggestion was that there was independent evidence not disclosed to the applicant in order for her to make comment but was used by the Tribunal in reaching its decision. There was no particularisation or identification that pointed to the nature of the independent evidence or the aspect of the Tribunal’s decision that could be based on such material. There was no transcript of the Tribunal hearing before the Court nor was there any identification in the written submissions of any material that was recorded in the Tribunal’s decision that was not disclosed to the applicant during the Tribunal hearing. This ground cannot be sustained.
Ground seven was the third issue arising from the applicant’s outline of submissions and this was a claim that the Tribunal failed to consider and exercise its discretionary powers under s.427(1)(b) of the Act in that it failed to require the Secretary to arrange for the making of an investigation. The nature of the investigation suggested was that the Tribunal should have made enquiries of the authorities of the People’s Republic of China. I accepted the respondent’s submissions in respect of this ground and the supporting line of authority in respect of the Tribunal’s duty to investigate an applicant’s claim. This ground is rejected.
I accepted the respondent’s submissions regarding the conclusions reached by the Tribunal and the relevant authorities as set out in paragraphs 14(h) and (i) above. I further accepted the respondent’s submissions in relation to the recent High Court decision of SAAP in that no jurisdictional error has been identified in the Tribunal’s decision and the issue of prerogative relief does not arise.

Conclusion

As the applicant was a self represented litigant, the Court was under an obligation to independently consider whether an arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The Court was assisted by Mr Potts in this task by his identification of other possible grounds which were not pleaded but obliquely referred to in the applicant’s outline of submissions. This document appeared to have been prepared for the applicant by a person with some legal knowledge but not fully conversant with the applicant’s case. Having considered the original application, the amended application and the applicant’s written submissions together with a review of the Court Book, on the face of those documents,

I have not been able to identify any issue that may invigorate a claim of jurisdictional error. Consequently, I believe that the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 30 June 2005