SZEXT v Minister for Immigration - [2005] FMCA 1377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXT v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1377

MIGRATION – RRT – Chinese applicant – claimed persecution due to involvement in Christianity – disbelieved by Tribunal – no error found.

Migration Act 1958 (Cth), ss.424A, 424A(3), 424A(3)(a), 474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28

Applicant:

SZEXT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2223 of 2004

Judgment of:

Smith FM

Hearing date:

7 September 2005

Delivered at:

Sydney

Delivered on:

7 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms T Wong

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be 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 $4,170.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2223 of 2004

SZEXT

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 under s.483A of the Migration Act 1958 (Cth) which seeks judicial review of a decision of the Refugee Review Tribunal dated 26 May 2004 and handed down on 16 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction in the matter such as the present is under section 39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations on my powers 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 should be believed or not, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The present applicant arrived in Australia in February 2004 from his country of nationality, The People's Republic of China. On

23 February 2004 he lodged an application for a protection visa assisted by an agent, Priscilla Yu.
The application attached a typed five page statutory declaration, in which the applicant recounted circumstances which he claimed gave him a fear of returning to China. He said that he was a Christian, and had been baptised in July 1995 at a State approved church. He said that under the influence of his employer who had encouraged his conversion, he joined the employer in organising an independent Christian group which sought approval from the local Religious Affairs Administration and the Public Security Bureau. He said that a decision on their application was not announced for more than one year, but during that period “government officials many times warned us not to have any religious gatherings before the application was decided”.
However, they did hold weekly gatherings. In March 2000 he and others attending a meeting were arrested by the PSB, and his employer was sentenced to three years labour reform. He was himself released after a one month detention. He then began personally to organise the Christians in the public church to protest against a leader imposed by the State, and in support of religious freedom. He said that in January 2002 he led a peaceful sit-in protest, which lasted for three days and gathered nearly 100 Christians. He was then arrested, subjected to interrogation every day, and physically tortured by policemen. He was then sent to “do hard manual job”, and was only allowed to return to his home in March 2003.
He then joined his former employer in a different area of China under different names to establish “our underground religious organisation”. However at the end of December 2003, he was informed that the PSB suspected where they were, and a friend arranged his departure from China.
A delegate refused the visa application on 12 March 2004. In his reasons, the delegate referred to inconsistencies between the statutory declaration and some aspects of the application form, and what the delegate thought was the vague nature of his claims.
The applicant appealed to the Refugee Review Tribunal on 13 April 2004 assisted by his agent. He presented a submission which argued with the delegate's reasoning, but did not provide more information. The applicant did, however, suggest that the name in which the visa application had been made and under which he had arrived in Australia, was a “new name” and not his real name.
The applicant attended a hearing by the Tribunal on 26 May 2004.

A transcript of the hearing is not in evidence before me, but the Tribunal gave a description of the hearing in its reasons.
As I shall indicate below, the absence of a transcript renders many of the applicant's complaints to me unproven. However, I am satisfied that the applicant has had sufficient opportunity to prepare and present a transcript to the Court. His original application, which shows assistance by someone with some familiarity with the nature of judicial review, made allegations about the hearing but was not accompanied by any evidence. The applicant was then directed at the first court date in October 2004 to file “any affidavit containing additional evidence relied upon, including transcript of a Tribunal hearing” by January 2005. The applicant was also referred to an experienced barrister for advice under the Legal Panel Scheme. In those circumstances I did not feel it necessary for the Court to take any further steps to procure additional evidence as to the Tribunal hearing, but proceeded with the matter today.
The Tribunal's substantive reasoning was that it accepted that the applicant was a national of the PRC, and it said that he:
showed some familiarity with Christianity, but no more than could have been gained, say, from friends and from magazine articles.
The Tribunal referred to its questioning of the applicant about his knowledge of Christianity and about the organisation and practices of Christian churches in China and in Australia, and it made various points about his responses. Ultimately the Tribunal decided that he had given “inconsistent, evasive and contradictory evidence about his so-called ‘formal’ baptism.” It said:
Since the poor quality of the applicant's evidence strongly founds the view that he did not belong to the authorised PRC church in the first place, his evidence as to why he joined a breakaway group is all the more difficult to accept.
Upon reasoning, which in my opinion was open to it, the Tribunal reached a conclusion that:
the Tribunal does not believe that the sit-in occurred. Consequently, the Tribunal does not accept that the claimed consequences of the sit-in ensured.
The Tribunal also said:
“The Tribunal does not accept on the applicant's evidence he was or is a Christian. It accepts that he has attended a church in Sydney on three occasions but this infrequent attendance is found by the Tribunal to be evidence of a lack of commitment on his part.
The Tribunal considered the applicant’s claim that his real name was different to the name in which his applications had been made to the Department and Tribunal (and I might also say to this Court). It was ready to accept that his real name was different, but did not consider that his adoption of a false name when acquiring a Chinese passport evidenced a Convention-related reason for this action. It concluded that any punishment he might receive if this were discovered in China could not “rightly be viewed as Convention-related persecution”.

I consider that the Tribunal's reasoning in relation to that matter did not reveal misconception of law.
The applicant filed an amended application on 7 January 2005, which essentially repeated the grounds which had been made in his original application. They were provided as a list of “particulars”:
a)The Tribunal’s decision has greatly relied on the reason that I was “vague” or “evasive” as to some of the claims.
b)The Tribunal, however, has failed to arrange a fair hearing for me actually because
·During the hearing, the Tribunal never gave me any opportunities to allow me to provide complete oral evidences in support of my claims;
·The Tribunal indeed raised some of questions in relation to my applicant, but then interrupted, or tried to conduct me into a wrong direction, which I have to say – misleading me;
·The Tribunal was very imperious and despotic, and always intended to force me to accept his opinions;
·The Tribunal indeed gave me strong mental and psychological pressure so that it was definitely impossible for me to feel to be really given a fair opportunity. On the contrary, I was really scared, and I difficult believe that the Tribunal could make a fair decision on my application.
·As a matter of fact, the Tribunal’s hearing remind me of those questions or interrogation of those cruel Chinese policemen, which indeed made me suffered a lot.
c)The Tribunal said that it “…tried to find independent evidence of the events the Applicant described …: But, the Tribunal obviously failed to indicate me how and when the Tribunal did so, and the Tribunal has never given any chance to comment it.
d)The Tribunal failed to take any steps to verify my religious activities in the church in Australia, which is obviously very important to determine whether or not I am a genuine Christian.
e)The Tribunal, obviously, tried to distort my claims in regarding to my departure from China with a false document.
f)The Tribunal failed to give me complete information, such as information regarding to my genuine identity or information regarding to my religious beliefs and religious practice, which has, in fact, been used as the reason for affirming the unfair decision of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”).
g)The Tribunal failed to explain to me, clearly and thoroughly, the information he used in his decision later on, will directly relating to my review application for DIMIA’s decision.
h)The Tribunal failed to ensure that I fully and complete understand the information that he would be used in its decision before and during the hearing. The Tribunal failed to provide me any fair opportunities to comment the negative information, which it used in its decision later on to affirm unfair decision of DIMIA.
i)The Tribunal failed to provide me the information by one of the methods specified by section 441A of the Act
Ground A does not itself raise an issue as to jurisdictional error, but I think was presented as a preamble to the subsequent ground.
Ground B combines complaints about procedural fairness in relation to being given an opportunity to give evidence, with complaints going to the other requirement of procedural fairness: an unbiased decision. The complaints which I have set out above were amplified by the applicant in his oral submissions to me today. In particular, he complained that he was not provided an opportunity to give his evidence, because the Tribunal asked all the questions. He complained that the Tribunal appeared to be asking questions which it had devised before the hearing, and that it interrupted him and prevented his ability to follow “logical thinking” in giving his evidence. In effect, he said that he felt that the questioning by the Tribunal, with the characteristics he described, meant that it was not possible for him to provide all the evidence he would have wanted to provide in support of his claims.
Unfortunately, as I have pointed out to the applicant, it is impossible for me to assess these criticisms in the absence of evidence presented by him as to what actually happened. The Tribunal's reasons give me no cause to think that its questioning was conducted in an unfair manner, or in a manner which might give rise to the apprehensions in an objective bystander which are referred to in the authorities (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28). As I pointed out to the applicant, his concerns might amount to no more than the common experience of somebody attending an unsatisfying, but properly conducted, interview. On the evidence before me I am not persuaded either that the Tribunal did not afford the applicant sufficient opportunities to give additional evidence to supplement his written statements, nor that it conducted the hearing in any manner which might give rise to a reasonable apprehension of bias.
Grounds C and D complain about the Tribunal's use of country information without warning the applicant, and its failure to conduct further investigations into his claims. However, in my opinion, both of these complaints are founded upon the existence of legal duties which the Migration Act does not impose upon the Tribunal. Section 424A(3)(a) expressly excludes an obligation on the Tribunal to give an applicant an opportunity to address adverse country information relied upon by the Tribunal. In any event, in the present case I do not think the Tribunal's reasoning essentially was based upon any such information, but rather was based on an assessment of the applicant's own story.
As to the complaint about the Tribunal's investigation, there is clear authority from the High Court that the Tribunal is under no obligation generally to conduct investigations to verify the claims made by applicants (c.f. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]). Its task is to assess the evidence put forward by an applicant. In the absence of verification put forward by the applicant I consider that the applicant cannot complain if the assessment is adverse.
Ground E makes a complaint which I do not understand, and which was not expanded upon by the applicant in written or oral submissions. Whatever it means, I have not been able to identify a ground of jurisdictional error made by the Tribunal concerning its reasoning in relation to the applicant's claim that he travelled on a false passport.
Grounds F, G and H were amplified by the applicant in the course of today's hearing. In particular, he complained that the Tribunal in the course of the hearing did not explain to him “where I answer wrong”. He criticised the Tribunal for not believing his answers, in circumstances where the Tribunal had not indicated the points at which it felt disbelief.
However, I accept submissions of the counsel for the Minister that the Tribunal was under no obligation to expose its thinking and assessments about the applicant's evidence before arriving at its decision. I therefore do not consider that these grounds establish jurisdictional error. To the extent that they suggest that there was unfair reliance on general information without inviting the applicant to comment, as I pointed out above, the Migration Act as applicable to the applicant did not give rise to any duty on the Tribunal to do this.
Ground I was not developed by the applicant in his submissions, but would seem to be premised on a duty to serve a written notice under s.424A in relation to information relied on by the Tribunal. However, particularly in the absence of better particulars of this complaint, I have not been able to identify any information forming part of the Tribunal's reasons for affirming the delegate's decision, which was not covered by one of the exclusions in s.424A(3).
For the above reasons I have not been persuaded that the Tribunal's decision was affected by any jurisdictional error. The consequence is that the decision is a privative clause decision within s.474 for which relief is barred under s.474(1). I must therefore dismiss the application.

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

Associate: Iliya Marovich-Old

Date: 29 September 2005