SZEVJ v Minister for Immigration
[2006] FMCA 69
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEVJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 69 |
| MIGRATION – Refugee – fear of persecution based on threats by a “loan shark” and membership of an “underground church” – no Convention nexus in relation to claims based on the “loan shark” – inconsistencies between claims made in the original application and to the Tribunal – applicant found to have republished claims before the Tribunal – claims based on religion not accepted as amounting to a well founded fear of persecution – bias – Tribunal’s failure to recognise the applicant as belonging to a particular social group – no reviewable error – application dismissed. |
| Migration Act 1958, ss.424A(1), 424A(3)(b) |
| Minister for Immigration & Ethnic Affairs vGuo (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225 Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679 M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998 SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 |
| Applicant: | SZEVJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2085 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 August 2005 |
| Date of Last Submission: | 1 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. A. McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal be joined as the second respondent in these proceedings.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2085 of 2004
| SZEVJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 7 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 May 2004 and handed down on 16 June 2004 to affirm the decision of a delegate of the respondent Minister made on 23 January 2004 to refuse a protection visa to the applicant.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 9 January 2004. On 15 January 2004 the applicant lodged an application for a protection visa with the respondent Minister's Department. The applicant’s initial claims to protection were contained in a statement (Court Book (“CB”) 1) accompanying his application for a protection of visa (CB 2 to CB 26) lodged with the first respondent's Department. He stated at this time that his claims were centred on a restaurant business that he had opened, which was frequented by [Chinese] government officials from a variety of government departments. As a result of the officials not paying for the food that they consumed, the business was soon in financial hardship. The applicant claimed that the government officials became quite angry with him when he sought payment, and further he claimed that they had created trouble for him by imposing higher taxes and fines and threatening suspension of his business licence. When he complained to local government authorities for help he found that they were “actually colluding with each other”, and he received no assistance from them. He claimed that instead his business licence was suspended and he was reported to the tax office for tax evasion and was detained until his family was able to pay fines to bail him out. He claimed therefore to be a victim of the government’s misuse of authority and sought protection in Australia.
The application was refused on 23 January 2004 by a delegate of the respondent Minister and the applicant applied for review of that decision to the Tribunal on 23 February 2004. A copy of the application is at CB 36 to CB 39. The applicant's claim in his application to the Tribunal, in response to the question as to why he considered himself to be a refugee, was:
“Please refer to my statement at DIMIA”
The applicant was invited to come to a hearing before the Tribunal (CB 43 to CB 44) and at first indicated that he did not wish to attend (CB 45), but subsequently changed his mind (CB 46) and a hearing was arranged for 21 May 2004, which he attended.
The Tribunal's account of what occurred at the hearing that it conducted with the applicant is set out in its decision record at CB 57.5 to CB 61.8. The applicant has put no other evidence before the Court as to what occurred at the hearing before the Tribunal. In any event, the applicant is reported as having expanded and clarified his original claims and made new claims before the Tribunal. The applicant explained to the Tribunal that he had engaged a migration agent who had submitted the application for visa “form” to the respondent's Department on his behalf, and that a “translator” had actually filled in the application form. The applicant had signed this form because he trusted his migration agent. At CB 26 is a copy of the authorisation given by the applicant providing for the migration agent to act, and to receive communications, on his behalf during the course of the processing of the application for the visa. The same agency continued to represent the applicant before the Tribunal (CB 36 and CB 37).
The applicant's claims were (as they were ultimately presented to the Tribunal at the hearing):
1)That the applicant had made himself unpopular with local government officials because he had tried to collect money owed to him (CB 58.5).
2)That he had borrowed money from a loan shark when his business was in financial difficulty and that the loan shark had put pressure on him to repay the loan, including sending thugs who attacked him. He claimed that if he returned to China he would be killed by the loan shark to whom he owed money (CB 59.8).
3)That in China he had attended an underground church, and that he had been arrested on one occasion because he had gone to the church. He claimed that some members of the congregation had been arrested by government authorities and that the church had its assets “frozen” by the authorities (CB 60.5).
It is clear that the Tribunal had some difficulty with aspects of the applicant's claims. While it accepted some of his claims, it had difficulty with the credibility of others. The Tribunal's findings are set out in its decision record at CB 61.9 to CB 65.4. The Tribunal saw the applicant's claims, following the hearing that it conducted with him, as being that he feared harm by a person from whom he borrowed money, and that he faced persecution for reasons of his religion. The Tribunal's understanding emerged from the evidence and clarifications provided by the applicant at the hearing it conducted with him. The Tribunal noted in its “Findings and Reasons” in its decision record at CB 62.9, that the claims in relation to the loan shark differed in some respects from the claims set out in his original protection visa application. In particular, the Tribunal noted that while originally the applicant made reference to circumstances which led to his business failing, he did not suggest originally that he feared harm at the hands of the person to whom he owed a debt. Further, while his original claims indicated that he was accused of tax evasion and detained, none of these claims were made at the hearing (CB 62.9). The Tribunal however accepted the applicant's explanation that any “misrepresentation in the protection visa application” concerning his business and the person to whom he owed money, was not the applicant's fault (CB 63.1). The Tribunal in these circumstances did not accept that the applicant was accused of tax evasion or that he was detained, however it did accept that the applicant operated a restaurant and that he lost money, at least in part, because of local government officials not paying their bills. It accepted that in an attempt to keep his business afloat the applicant borrowed money from a loan shark. The Tribunal was not satisfied however, that any such claims as they related to the loan shark were for a Refugee Convention related reason (CB 63.8).
It is well established that an applicant who has a fear of persecution must also show that the persecution that is feared is for one or more of the reasons enumerated in Article 1A(2) of the Refugees Convention (Minister for Immigration & Ethnic Affairs vGuo (1997) 191 CLR 559 at 570). Section 91R(1)(a) of the Migration Act 1958 (“the Act”) qualifies this in that the Convention reason, or reasons, must constitute at least the essential and significant reason, or reasons, for the persecution. Clearly in the case before me, in relation to the fear of harm from the loan shark, the Tribunal was unable to be satisfied that there was any connection between the harm feared and the Convention reasons. The Tribunal also noted (at CB 63.9) that although the applicant indicated that he had a poor relationship with local government authorities, he was still able to obtain some assistance when he had been attacked. The Tribunal took the view that if the applicant were harmed again he would be able to approach the authorities for assistance (CB 64.1). It noted that there was nothing in the applicant’s evidence to suggest that if he were threatened or attacked by the loan shark, or his associates, that he would be refused protection for any Convention reason by the authorities.
In relation to the applicant's fear of persecution for reasons of his religion, the Tribunal found it implausible that in respect to this claim, a migration agent would have told the applicant (as claimed by the applicant before the Tribunal) that his other, apparently not Convention related claims, were sufficient. The Tribunal also noted that the applicant had originally indicated in his “protection visa application form”, “not applicable” in response to a question asking for the applicant's religion. In any event, the Tribunal found that the applicant's knowledge of Christianity was scant and that while it would not have expected the applicant to have a very detailed knowledge of Christianity it would have expected that a Christian, whose religious activities in China had consisted of reading the Bible, would be aware of some basic Christian concepts such as the meaning of baptism. While accepting that the applicant had attended some church meetings since arriving in Australia, it did not accept that the applicant was identified, or practised, as a Christian in China, and therefore did not accept any of the consequences that the applicant claimed flowed from this, such as his claimed detention (CB 65.1). The Tribunal was therefore not satisfied that the applicant had a well founded fear of persecution for reasons of his religion.
In his originating application to this Court the applicant essentially makes two complaints:
1)That he was not given a proper opportunity to “explain his case”.
2)That the Tribunal was wrong in finding that he was not a refugee.
Given that the applicant was unrepresented before me, I did consider whether these complaints could assist the applicant in showing jurisdictional error on the part of the Tribunal, even though he subsequently filed an amended application.
The first claim is unsupported by any evidence, or indeed by any real particularity. In any event, it is clear that the applicant was invited to a hearing before the Tribunal, attended the hearing, but has not said how he was denied a proper opportunity to explain his case at the hearing. I further note that the applicant was assisted by a migration agent throughout the period of his application for review before the Tribunal. There is nothing before me to show that the applicant, or his adviser, made any complaint to the Tribunal about any failure by the Tribunal to provide a proper opportunity for him to explain his case between the date of the hearing (21 May 2004) and the handing down of the Tribunal's decision, well over three weeks later. On what is before me this ground does not succeed.
The applicant's second complaint is that the Tribunal is “wrong”. In the absence of any other particularity this claim must be seen as lacking in substance, and at best is a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259).
In any event the applicant filed an amended application on 8 December 2004, and the following complaints can be discerned:
1)Bias on the part of the Tribunal.
2)That there was no evidence to support the Tribunal's findings.
3)That he belonged to a particular social group.
4)That the Tribunal encourages applicants to put forward any new claims that have not been put in the initial application and that in effect, he was “misled” by the Tribunal because when he put in these new claims this was used as the basis for refusing his application. The applicant saw this as a further example of bias on the part of the Tribunal.
The applicant was unrepresented at the hearing before me. He was assisted by an interpreter in the Mandarin language. Mr. McInerney appeared for the respondents. At the hearing before me the applicant indicated that he had not received the respondent’s written submissions in this matter. He claimed that “probably my friend has received it, but I did not”. In this regard I note that the applicant filed in this Court, on 8 October 2004, a “Notice of Change of Address for Service”. Mr. McInerney tendered, and I marked as Respondents Exhibit 1 (“RE 1”) a copy of a diary note dated 8 October 2004. This was a diary note made at the first Court date in this matter, by the respondent's solicitors, of the applicant's new address for service. This address was identical with the address appearing in the subsequent “Notice of Change of Address for Service”. Mr. McInerney tendered, and I marked as Respondents Exhibit 2 (“RE 2”) documents showing that on 28 July 2005 the respondent served a copy of the respondent’s written submissions on the applicant at the address for service provided by the applicant and that this was sent by courier. In any event, the submissions were translated for the applicant by the interpreter at the hearing before me. I sought from the applicant whether he was ready to proceed with the hearing and he indicated that he was ready to proceed. On this basis the hearing continued.
The applicant before me:
1)Complained that the Tribunal did not accept his claims and that while he partially understood that the Tribunal's decision was based on the definition of refugee derived from the “five grounds” in the Refugee's Convention, and while he understood that this is the “law of Australia”, he stated: “I don't agree with this”. Further, he said that while his claim “is out of those grounds” he still had to face the possibility of physical harm if he were to return to China. I understood him to mean that even if his claims to fear harm were not Convention based, he still feared physical harm if he were to return (presumably from the loan shark and his associates).
2)Complained that while the Tribunal stated that he could get assistance from the Chinese authorities, the applicant was concerned that that was not true because once “he was chased by the loan shark” it would be too late to seek any help from the authorities.
3)Sought assistance from the Court as to what evidence he could provide to convince the Court that he did practise as a Christian when he was in China.
4)Stated that at the hearing before the Tribunal he was in “an excited mood”, and that he was confused.
The applicant's first complaint in the amended application was to allege bias on the part of the Tribunal. I note in this regard, for the applicant’s benefit, that allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member, by their attitude and conduct, can be shown to have preset in their mind the ultimate outcome in the matter. An allegation of actual bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Allegations of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, [27]-[32]). Clearly, no particulars have been provided in support of this very serious allegation and there is nothing before me to show that the Tribunal had “prejudged” the applicant’s case in the way it approached the application for review made by the applicant.
The applicant appears to put forward bias on the part of the Tribunal as the only possible explanation for the Tribunal making findings that were adverse to him. In this regard the applicant relies on the Tribunal's decision record. The applicant pointed to the Tribunal's finding at CB 62.5:
“I accept that the applicant is a Chinese national. In my view, although the applicant was truthful in some aspects of his evidence, he exaggerated and fabricated other aspects of his evidence in order to enhance his claims.”
The applicant claims there was “no evidence” to justify the above statement. The Tribunal’s statement however needs to be seen in the context of how and where it appears in the Tribunal's decision record. On any plain reading of the Tribunal's decision record the statement complained of is clearly an overall introduction (set out at the beginning of its “Findings and Reasons”) to what follows, being the Tribunal's more detailed presentation of its findings which support its opening observations. What follows clearly shows that the Tribunal accepted the applicant's central complaint, that he feared harm from a loan shark, but that he had fabricated his claims in relation to fear persecution for reasons of his religion. Subject to one issue raised by Mr. McInerney (with which I will deal below) the finding that the applicant had exaggerated and fabricated other aspects of his evidence was clearly open to the Tribunal on the material before it.
In relation to religion the Tribunal found that it was significant that this claim was made for the first time at the hearing before the Tribunal, and that further the applicant's knowledge of Christianity was “scant”. While it did not expect the applicant to have a very detailed knowledge of Christianity, it did expect that a Christian, whose religious activities in China had consisted of reading the Bible (as the applicant claimed during the hearing), would be able to provide basic details of the Christian religion. Further, that a person who had been baptised would have a better grasp of the meaning of baptism than the applicant was able to demonstrate at the hearing. In all, the Tribunal's findings in relation to the applicant's claim to have been a Christian in China, and subject to persecution as a result, were open to it on the material before it and the Tribunal gave reasons for rejecting the applicant's claims in this regard, describing them as “fabrication and exaggeration”. Clearly, in these circumstances, the Tribunal was acting within its proper function as the decision maker “par excellance” (Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). I can see no bias deriving from its actions in this regard.
The applicant also claims that he was “misled” by the Tribunal and that this also showed its bias against him. Before me the applicant was unable to really assist in his assertion that the Tribunal “encourages” applicants to put forward any claims that have not been “handed in with the initial application”. He was unable to show how this was done. He states in his amended application that the Tribunal's function is to reconsider the application because applicants may not prepare the initial application “very well”, and that the Tribunal “allows” applicants to hand in more information which has not been handed in with “the DIMIA application”.
In the Tribunal’s letter of 27 February 2004 (CB 40 to CB 41), explaining to the applicant the process by which it was going to review his application, and in its letter of 22 March 2004 (CB 43 to CB 44), being the letter of invitation to a hearing before the Tribunal (both sent, as appropriate in the circumstances through his migration adviser), there are clear references to the capacity to submit further documents, and information or evidence, that the applicant wants the Tribunal to consider. For example:
1)At CB 40.8:
“What is a hearing and why is it important?
A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:
·what you tell the member at the hearing
·information or documents you give to the Tribunal
·information or documents you ask others to give to the Tribunal”
2)At CB 41.4 the Tribunal states:
“Immediately send us any documents, information or other evidence you want the Tribunal to consider.”
3)The Tribunal, in the letter inviting the applicant to the hearing, in the context of having put the applicant on notice that on what was before it the Tribunal was unable to make a decision in his favour, amongst other things states:
“●send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified interpreter.”
While these references indicate an opportunity to submit additional information, evidence or documents they cannot, in my view, be read as an enticement to an applicant to put forward completely new claims, which is what the applicant in the case before me has done. The Tribunal’s letters cannot be seen as an “encouragement” in the sense that the applicant now asserts. Nor on any plain reading can they be seen as an invitation necessarily to make up new claims particularly in a context where the applicant’s original claims were rejected by the Minister’s delegate. The claim that the applicant may not have prepared the initial application “very well” (as the applicant claims in his case) was clearly dealt with by the Tribunal. At the hearing it conducted with him the applicant was given the opportunity to explain what had occurred in this regard. It is clear that in relation to his claims concerning the loan shark, and the failure to mention the loan shark in the initial application, the Tribunal specifically accepted that any “misrepresentation” in the protection visa application of the applicant's claims concerning his business, and the person to whom he owed money, was not the applicant's fault. In this regard the Tribunal accepted the applicant's claims as presented at the hearing with the Tribunal, and also accepted his explanation as to why these claims had not been presented at an earlier time. In my view the Tribunal did, as the applicant now exhorts, what it should have done. It understood that the initial application may not have been prepared “very well”, and accepted the applicant's change in his evidence.
In relation to his new claims of persecution for reasons of his religion the Tribunal was unable to accept that such an important claim could have been totally omitted from his original application and believed that it would have been raised previously. The Tribunal clearly did not accept the applicant’s explanation in this regard, as it found it implausible that a migration agent would have told the applicant (and the applicant has brought forward no evidence whatsoever to support his claim of what his migration agent told him) that it was sufficient merely to put forward other non-Convention related claims. But in any event, in relation to the claims derived from religion, the Tribunal relied on its finding that the applicant's knowledge of Christianity, in circumstances where it would be expected that he would be able to present a basic knowledge, was “scant”.
In all, on what it is before me, I cannot see that the applicant can make out his complaint of bias on the part of the Tribunal (or indeed the apprehension of bias). Further I cannot see that the applicant was misled in any way or entrapped by the Tribunal. The Tribunal gave clear reasons for its acceptance of some of the applicant’s explanation as to why new claims emerged at the hearing for the first time but also, equally, gave reasons for not accepting this explanation in regard to the applicant’s claims on religion. All of this was open to the Tribunal on the material before it. I can see neither error in how the Tribunal has gone about its task in this regard [see further regarding “information” below] nor that it shows bias on the part of the Tribunal.
The applicant also complains in the amended application that there was “no evidence” to support the Tribunal's findings. In particular the applicant referred to the Tribunal's decision record at CB 64.2 where the Tribunal noted that:
“In any event, there was nothing in the applicant’s evidence to suggest that if he were threatened or attacked by the loan shark or his associates, he would be refused protection for reasons of his race, religion, nationality, membership of a particular social group or political opinion. In the circumstances, I cannot be satisfied that the applicant has a well founded fear of persecution for a Convention reason arising from the indebtedness to a loan shark.”
The applicant before me now appears to argue two things. First, that he was a member of a particular “social group” and therefore it was not open to the Tribunal to make a finding that the fear of the loan shark was not for a Convention reason. Second, that he had provided evidence at the hearing, as well as documentation with his initial application for a protection visa, about being threatened and attacked by the loan shark. It is not clear what documentation the applicant presented with his initial application about being threatened and attacked by the loan shark. On the material before me the applicant's application for a protection visa has no reference to any additional documentation other than repeatedly making reference to please “see my statement”. It appears that is the statement reproduced at CB 1. In answer to the question in the application form (at CB 22) to list all documents that he had provided with his application, the applicant lists only “personal statement”. In answer to questions (at CB 23) referring to documents he would “provide later”, or “cannot provide”, the applicant has answered “N/A” (not applicable). Further, his reference to the evidence that he provided at the hearing before the Tribunal, on the material before me, appears to not go beyond the oral evidence that he provided to the Tribunal. Nor was the applicant able to make any additional explanation at the hearing before me. On what is before me, it is quite clear that there is nothing to support this apparent complaint, deriving from the amended application, that he provided documents with his protection visa application which were not considered by the Tribunal. Further, the oral evidence that he gave the Tribunal at the hearing before it relating to the loan shark was clearly considered by the Tribunal.
The applicant now also appears to argue that his fear relating to the loan shark was Convention related in that he claims he belongs to a particular social group. However, the applicant does not now identify this social group. Nor did he provide anything further to support this assertion. I cannot see on the material before me that the applicant could succeed in this complaint. In the material before the Tribunal, the applicant has simply made no claim that his fear of the loan shark was, even in part, originating from his membership of any social group. Nor do the circumstances put forward by the applicant suggest this. I note this with reference to relevant High Court authority on the characteristics of a particular “social group” (Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225 and the joint Judgement of Gleeson CJ. Gummow and Kirby JJ., in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 where at 36 it was stated:
“Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.”
In the case before me, the Tribunal clearly looked at the evidence as provided by the applicant himself. It looked at his claim and dealt with the claim put at the hearing that the applicant feared harm from a loan shark to whom he had turned for assistance with a financially failing business. In the absence of anything further from the applicant as to just what this social group could have been, this remains mere speculation. Perhaps, at best, the social group could have been businessmen in China who were subject to harm by loan sharks. (In such circumstances, this clearly would make the attribute common to all members of the group the shared fear of persecution, and as such would be outside the understanding of a particular social group as defined by the High Court.) In any event, as I have said, this is mere speculation. The applicant himself has put forward nothing to the Tribunal to argue membership of a social group, and nor can I see that the circumstances put before the Tribunal would give rise to any such consideration. It is also important to note that the Tribunal found, in relation to the harm feared by the loan shark, that the applicant could access protection from the authorities in this regard, as he had done in the past. Therefore, even if the Tribunal had found (and it did not) that the applicant feared harm from the loan shark as a member of a social group, the Tribunal’s finding that the applicant could access protection and would not be refused protection for any Convention reason was, and would be, sufficient to answer the applicant's complaint in this regard, even if it could be made out.
While the Court obviously needs to exercise caution when presented with an unrepresented applicant from a non English-speaking background, it is clear that the applicant's complaints put at the hearing before me can be seen as containing some sort of acknowledgement that the applicant understands that the law of Australia requires an applicant for a protection visa to come within the Convention definition of “Refugee”, and in particular with reference to the grounds set out in the Convention. The applicant appeared to acknowledge that his claim (the possibility of physical harm from the loan shark, and that even if the Chinese authorities were prepared to offer him assistance, it would in any event be “too late” once the loan shark started to “chase him”) was set outside of those grounds. At face value this appears to support the Tribunal’s finding that the applicant's fears in relation to the loan shark are not based on a Convention reason of fear of persecution. I put this only to assist the applicant and in consideration of what he put at the hearing before me, not as a reason for showing no jurisdictional error on the part of the Tribunal’s decision. Further, the applicant complained (put as a question before me) about what he could have done to convince the Tribunal that he was practising as a Christian in China. For the applicant’s benefit, the simple answer is to have put before the Tribunal information, argument or personal knowledge of his alleged Christian practices or beliefs (even to the basic level that the Tribunal accepted as relevant) in order to satisfy it of the credibility of his claim. His failure to do so, or the subsequent inability of the Tribunal to be satisfied, does not go to reveal error on the part of the Tribunal. It must be emphasised that these remarks are put in acknowledging what the applicant stated at the hearing before me. Further, in relation to the other assertions made by the applicant at the hearing before me, the applicant does not provide any evidence to support his claim that before the Tribunal he was in an “excited mood” and that he was confused. Nor does he say how this specifically affected or prevented him from providing evidence to the Tribunal. In the absence of any other evidence to support the mere assertion, and implications in what the applicant put to me, this complaint also does not assist the applicant.
In written submissions (prepared before the Full Federal Court decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”)) put before the Court at the hearing (also prior to SZEEU being handed down) and pressed by Mr. McInerney, the respondent raises the following issue which arises for consideration in light of the majority decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) and in light of (what were described in his submissions as) the “obiter” comments of the majority of the Full Federal Court in Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679 (“Al Shamry”). The issue is whether the Tribunal’s reference in its decision record to the applicant’s protection visa application gave rise to any failure to put in writing to the applicant, pursuant to s.424A(1), “information” on which the Tribunal may have relied, at least in part, in the making of its decision.
In this regard Mr. McInerney referred to two parts of the Tribunal's decision record:
1)At CB 60.2 (as part of its report of what happened at the hearing it conducted with the applicant):
“I put to the applicant that a problem with his protection visa application is that the harm he fears is essentially because a loan shark wants to collect a debt. It does not appear that any harm the applicant fears is for reasons of his race, his religion, his nationality, his membership of a particular social group or his political opinion. The applicant responded that when he applied for refugee status he did not know that much. He claimed that he also told his migration agent that he had been arrested on one occasion because he went to church. I put to the applicant that I had considerable difficulty accepting that this is a claim that his adviser would have just left out if he had raised it with him. Furthermore, I noted that in his protection visa application the response to the question concerning religion was “n/a”, that is, not applicable. The applicant claimed that the migration agent said that he had enough grounds for refugee status with what he had written down and that his written claims would do. The applicant claimed that his migration agent had told him that he would be able to raise this claim when he was interviewed.”
2)In its “Findings and Reasons” the Tribunal made the following findings in respect of the applicant's claims that he was a Christian in China, and that he was detained on one occasion for this reason (CB 64.2):
“As noted above, the applicant also claims to fear persecution for reasons of his religion. He claims that he was a Christian in China and that he was detained on one occasion for this reason. In my view, the applicant has fabricated his claims in this regard in order to enhance his claims to refugee status. In relation to this, I consider it significant that the applicant's claims in this regard were not made in the protection visa application. It is true that the whole of the applicant's claims in relation to his business were not set out in his protection visa application. However, I consider that if the applicant had made a claim which clearly fell within the Convention, it is implausible that a migration agent would have told him that his other (apparently non Convention-related) claims were sufficient. Furthermore, if the applicant had indicated to his migration agent that he is a Christian, it is unclear why the protection visa application form would indicate “n/a” in response to a question asking for the applicant's religion.”
At the hearing before me Mr. McInerney identified the following three points:
1)That in the first sentence of the paragraph referred to at CB 60.2, the Tribunal referred at the hearing with the applicant to what it described as a “problem” with his protection visa application, and that essentially the protection visa application did not raise a Convention related claim. The Tribunal noted that after hearing the applicant's response it put to the applicant that it had considerable difficulty accepting that this claim (relating to religion) would have been left out by his adviser had the applicant raised it with him.
2)That the Tribunal made reference to the applicant’s protection visa application and to the fact that the applicant’s response to the question concerning religion was “not applicable”.
3)That the applicant claimed that his migration agent had told him that he had enough grounds for refugee status with what he had written down, and that his written claims were sufficient, and that further the migration agent had told him that he would be able to raise any other claim when he was “interviewed”.
Mr. McInerney’s submission, in relation to the Tribunal's reasoning that the applicant had fabricated his claims that he was a Christian in China and had been detained on one occasion, was that the Tribunal’s ultimate finding had three limbs:
1)That the contention was not made in his protection visa application (CB 64.2).
2)That the applicant’s knowledge of Christianity was “scant” (CB 64.6 to CB 64.9).
3)That the applicant’s claim to be a Christian was a recent invention (CB 64.9 to CB 65.1).
Mr. McInerney’s submission was that each limb of the Tribunal's reasoning in this regard was an independent and alternative basis upon which the Tribunal's finding on credibility could be sustained, and that the substance of the information contained within the applicant’s protection visa application and statement, which formed part of that application, was included by the applicant as part of the information that he gave to the Tribunal for the purposes of his application for review.
The respondent’s relevant submissions in answer to the SAAP issue, and as pressed by Mr. McInerney at the hearing before me, are at paragraphs 21 to 27 of the respondent’s initial written submissions. Following the hearing before me the Full Federal Court handed down its Judgment in SZEEU. The respondent’s filed supplementary written submissions.
In light of SZEEU Mr. McInerney submitted that the respondent no longer sought to rely on paragraphs 23 to 27 of the original submissions. The matters asserted in those paragraphs have clearly been resolved by SZEEU and do not assist the respondent.
The respondent’s supplementary submissions note that:
1)The Tribunal found that the applicant had fabricated claims that he was a Christian to enhance his refugee claims (CB 64.3) and that it was significant that the claims were not made by the applicant in his protection visa (CB 60.2 to 60.5).
2)The applicant had stated in his review application “Please refer to my statement at DIMIA” (CB 38.2).
3)The statement originally provided to the Department made no mention of the claim subsequently put forward that the applicant was a Christian (CB 1).
4)The Tribunal, during the course of the hearing it conducted, asked the applicant how his protection visa application had been “filled in” (CB 57.7) and this was done in circumstances where the applicant expressly relied on his statement made to the respondent’s Department (CB 1) through his statement in the application to the Tribunal (CB 38.2).
5)The Tribunal did not accept the applicant’s explanation that he had raised the “religion claim” with his agent who had told him “he had enough grounds for refugee status [without it]” (CB 60.5).
Mr. McInerney argues now that the Tribunal’s decision is not infected by jurisdictional error with regard to SAAP, Al Shamry and SZEEU in that:
1)There is support in SZEEU for the proposition that the applicant’s silence as to his “alleged Christianity” was not “information” for the purposes of s.424A(1) of the Act.
2)Even if the Court were to find against the respondent on the above issue, any such “information” was provided to the Tribunal for the purpose of the application for review, thus engaging the exception contained in s.424A(3)(b) from the requirements set out in s.424A(1).
In relation to 34.1) above Mr. McInerney invites the Court to find that the circumstances of this case falls within the category described by Weinberg J. in SZEEU at [117]:
“…If the applicant has never at any stage said anything about the particular subject, and mentioned it for the first time at the Tribunal hearing, an inference might be drawn that his or her account was a recent invention. It is questionable whether there would be an obligation under s 424A(1) to invite comment upon the applicant’s previous silence since this may not relevantly constitute "information" within the meaning of s 424A(3)(b)…”
Mr. McInerney submits that the “applicant’s silence as to his alleged Christianity” fell into the category as described by Weinberg J. and as such was not “information” for the purposes of s.424A(1) of the Act. He conceded however that Allsop J, took a different approach. He referred to [223] in SZEEU where His Honour stated:
“…I do not see Finn J and Stone J in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant.”
He further submitted that Moore J., in the same case, did not address this issue.
The respondent’s submission is that neither the comments made by Weinberg J., nor those articulated by Allsop J., are binding on this Court as both are properly described as “dicta”. He invites the Court to prefer what was said by Weinberg J. over what was said by Allsop J, but other than saying that the respondent’s submissions probably find support in what Weinberg J. said, he does not really say why. I should note that in relation to Weinberg J.’s comments at [177], the extract of His Honour's Judgement relied on by the respondent now has, with respect, a degree of qualification as it relates to the respondent’s submission. His Honour says an inference “might be drawn”, that it is “questionable” whether there would be an obligation, and in the latter (and more relevant) distinction that there is some support for the proposition that this may not relevantly constitute “information” for the purposes of s.424A(3)(b) of the Act. It may be therefore that His Honour’s statement at [177] provides some support for Mr. McInerney’s second reason for upholding the Tribunal’s decision, rather than the first. I also note, with respect, that the extract from the Judgment of Allsop J. does not appear to contain any such qualification on the issue of what may constitute information. I should further note that I did not find as useful the submission that both comments were “dicta” but that I should prefer the dicta statements of one Federal Court Judge over another without any explanation as to why.
However, it is not necessary for the purposes of this Judgment to resolve this contention because I do agree with Mr. McInerney’s second submission that even if the “form” provided to the respondent’s Department was “information” for the purposes of s.424A(1), that such “information” was provided to the Tribunal for the purposes of the review such as to bring in within the exception to the obligation in s.424A(1), contained in s.424A(3)(b) of the Act.
In this regard Mr. McInerney relied on the Judgment of Gray J. in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131. I took this to be a reference to [25] in that Judgment:
“That is the not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A(1) and (2).”
Some support for Mr. McInerney’s position can also be found in SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 (“SZDMJ”), on which Mr. McInerney had relied at the hearing before me, where Gyles J. said at [5] and [6] (certainly to the extent that in some circumstances it is possible for an applicant to republish claims and that such information “contained” as part of that republication comes within s.424A(3)(b) of the Act):
“[5] In a well-constructed argument, counsel for the respondent put forward various bases upon which it could be said that the Tribunal did not breach s 424A. I need not set them all out as, in my opinion, one of them is decisive. The appellant’s application for review to the Tribunal incorporated a statement in the form of a statutory declaration by the appellant. That declaration consisted of a critical examination of the reasons given for the decision by the Delegate of the Minister to refuse the appellant’s application for a visa. In the course of that declaration the appellant referred several times to the claims that he had originally made and which were the subject of the Delegate’s decision. Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the Tribunal made reference.
[6] In my opinion, the appellant clearly republished the original claims to the Tribunal and relied upon them for the purposes of the review by the Tribunal. It follows that all such information was given by the appellant to the Tribunal for the purpose of the application even if ‘application’ is limited to the original application and so falls within the exception in s 424A(3)(b). Therefore, the obligations imposed by s 424A do not apply to that information. In other words, the case is within the reasoning of M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 rather than NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744. (See also SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998.)”
Mr. McInerney sought to distinguish the approach taken in M55 from that taken by Jacobson J., in NAZY vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744. In that case Jacobson J. appeared to take the approach that if the Tribunal poses a question to an applicant during the course of the hearing and the applicant answers that question, and then the Tribunal relies on that answer, the answer is “information” and that it is not given to the Tribunal by the applicant for the purposes of the application to the Tribunal. Mr. McInerney submitted that the situation in the case before me clearly shows that the applicant expressly incorporated his protection visa application in the application to the Tribunal as opposed to responding to a question under examination by the Tribunal.
In looking at the particular circumstances of the case before me, I agree with Mr. McInerney’s submission that the applicant's statement in his application for review to the Tribunal clearly refers the Tribunal to the statement of his claims made to the respondent’s Department. The applicant, who was assisted by a migration agent at the relevant times, volunteered in his application to the Tribunal that he wanted the Tribunal to refer to his “statement to DIMIA”. This is not a situation where the Tribunal can be said to have inferred that the applicant wanted to rely on his previous statement. Nor is this, clearly, the situation as envisaged by Rares J. in SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 (“SZGGT”) at [42], where an applicant for review is treated as having put before the Tribunal what he had previously put before the Minister’s Department merely because he was seeking a review of the delegate’s refusal. In his application for review the applicant before me said nothing else in support of his claim to be a refugee other than:
“Please refer to my statement at DIMIA.”
The facts in this case, in my view, support the respondent’s submission that the applicant sought to put before the Tribunal what he had previously put to the Minister’s Department and thereby republished his “statement”. In this sense, the information contained in that statement falls within the exception provided in s.424A(3)(b) from the obligation to put information on which the Tribunal relied to the applicant pursuant to s.424A(1) of the Act. As stated, nor does this information fall within the “divergent” interpretation of this issue adopted by Jacobson J. in NAZY. This was not a situation of an applicant answering questions put to him by the Tribunal at a hearing. Clearly, in the case before me, it was the applicant who voluntarily put this to the Tribunal at the beginning of the process of the application for review.
Further, I also consider as relevant the Judgment of Rares J. in SZGGT [and I note that this Judgment was handed down after SZEEU], which qualified SZDMJ and at [42] His Honour stated:
“In SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 Gyles J held that there was a clear republication of original claims made in a declaration by the applicant for review as part of his application for review. That declaration critically examined the reasons given by the delegate for refusing his application in the course of which the there applicant for review referred several times to the claims that he had originally made. Gyles J held that there was a republication of the original claims made to the delegate in the application for review. The precise terms in which the republication was said to have taken place are not set out in his Honour’s judgment. Each case will obviously depend on its own facts. In one sense applicants for review could be treated, on every occasion to be asking the Tribunal, because it is reviewing the original refusal, to review all that they had previously put to the delegate. But I am of opinion that that is not the proper construction of the general position having regard, to the terms of s 424A as construed by the High Court.”
His Honour then when on to emphasise that whether or not an applicant’s claims had been republished to the Tribunal was to be assessed on a case by case basis. At [44] His Honour further stated:
“Attention needs to be paid in each case to what s 424A(3)(b) identifies as the information ‘that the applicant gave for the purpose’ of the application for review. Of course, there will be cases where the applicant puts forward everything in the departmental file provided originally by him or her to the delegate. But such a result flows from the facts of the individual case. If the Parliament had intended otherwise it would have been easy to make the natural exception in s 424A(3) of the material which the applicant provided to the Minister originally and then to provide, as is now discretely provided in s 424A(3)(b), for other information. Because the Parliament has identified the elements integral to a fair procedure of review in the way in which Division 4 of Part 7 of the Act provides, I do not think it appropriate to add glosses to that or to provide easy means for avoiding consequences which may be inconvenient in the construction of the provision.”
The applicant made claims before the Tribunal in relation to two issues. His fears of the loan shark arising out of his failing business and his claims relating to his fear of persecution because of his religion. In relation to the loan shark claims, the Tribunal made reference at the hearing with the applicant to differences in some respects between what was in the protection visa application and what was said at the hearing. However, it accepted in its findings “that any misrepresentation in the protection visa application of the applicant’s claims concerning his business and the person to whom he owed money is not the applicants fault” (CB 63.2). The Tribunal ultimately clarified with the applicant at the hearing exactly what his claims were in this regard and found that while the applicant “genuinely” feared returning to China because of the loan shark, and as there was a good chance that he would be harmed, it was not satisfied that such harm was for a Convention reason (CB 63.9). Further, it found that he could approach the authorities for assistance (CB 64.1).
In this regard therefore, in my view, the Tribunal relied on what was ultimately put to it at the hearing by the applicant in the making of its decision. It found that the harm feared was not Convention related. This finding was open to the Tribunal on what was before it.
In relation to the applicant’s claim based on religion, it is clear that the Tribunal’s rejection of this claim was based on the applicant’s “scant knowledge of Christianity” as demonstrated at the hearing before the Tribunal (CB 64.5). But a clear and “significant” part of the reason for its decision in relation to religion was that the applicant had omitted to raise this issue in his protection visa application. The Tribunal did not accept the applicant’s explanation that he was following the advice of his migration agent in leaving it out (CB 64.4). Had the applicant not “republished” his original claims in his application for review then I would have found jurisdictional error in the Tribunal’s decision for a failure to put to the applicant in writing information in his protection visa application (being, as Allsop J. explained in SZEEU, information which played some part in the Tribunal’s conclusion, including as here, the truthfulness of the applicant’s claims in relation to religion, which the Tribunal described as being “fabricated” (CB 64.3)). But as I have set out above, I accept the submission that the applicant republished his claims and that such information can be said to have then been given to the Tribunal for the purpose of the review and as such falls within the exception set out in s.424A(3)(b) from the obligation arising from s.424A(1) of the Act.
For the reasons set out above there is no jurisdictional error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 21 July 2006
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