SZFEJ v Minister for Immigration
[2005] FMCA 1535
•12 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEJ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1535 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of People’s Republic of China who claims a well-founded fear of persecution for reasons of religious belief – applicant claims to be a follower of the Christian religion – claim of membership of religious group called the Shouters – alleged bias – allegation interpreter spoke Mandarin whilst the applicant claimed religious services used the Fukien dialect – whether RRT complied with s.424A Migration Act 1958 (Cth) – whether RRT had duty to investigate applicant’s claims – no evidence of bias or bad faith. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A, 424B and 441A
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 194 ALR 749
Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham [2000] 168 ALR 407
| Applicant: | SZFEJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3562 of 2004 |
| Delivered on: | 12 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 12 October 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Leave granted to join Refugee Review Tribunal as the Second Respondent.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3562 of 2004
| SZFEJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a review of the decision of the Refugee Review Tribunal.
The Tribunal made its decision on 22nd October 2004. It handed down its decision on 11th November 2004. In that decision the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 24th February 2004.
On 7th April 2004, he applied for a Protection (Class XA) Visa with the Department. That application was refused on 21st May 2004. On 22nd June 2004 the Applicant applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal conducted a hearing on Tuesday 21st September 2004. The Applicant attended that hearing and gave evidence.
The Applicant seeks a protection visa on the basis that he claims a well-founded fear of persecution for reasons of his religious beliefs. He claims to be a follower of the Christian religion, and in particular is a member of the underground Church known as the Shouters.
He claimed that as a result of his involvement with the Shouters, he was a self-employed truck driver and in that occupation transported religious materials from Hong Kong to Mainland China. He claimed that he was interrogated by the PSB between March and May of 2002.
Eventually, he was informed by his parents that the police had come to his home with an arrest warrant and one of his associates was sentenced to prison for eleven years. Eventually he escaped to Hong Kong and from Hong Kong travelled to Australia.
The Tribunal asked the Applicant a number of questions about his following of the Christian religion, and about his membership of the Shouters underground Church.
In the Tribunal's decision, the Tribunal referred to independent country information, namely United States Department of States, International Religious Freedom Report for 2003, and the United States Department of States Country Report on Human Rights Practices in China for 2003.
The International Religious Freedom Report refers to the situation of Christian Churches in China generally, and the Tribunal quotes from it at pages 82 and 83 of the Court Book.
The Report also referred to the Shouters and described how the state council and the central committee of the Chinese Communist Party banned the Shouters as a cult and made it illegal.
The United States Department of States Country Report on Human Rights Practices in China for 2003 was quoted by the Tribunal on page 84 of the Court Book. That quote referred to the Shouters in a paragraph relating to the authorities having singled out groups that they considered to be cults. The report says in part:
For example, the police continued their efforts to close down an underground evangelical group called the Shouters, an offshoot of the pre-1949 indigenous Protestant group.
In its findings and reasons at pages 86 to 88 of the Court Book, the Tribunal refers to the Applicant's claim that he fears that he would be arrested by the PSB on his return to China, because he was involved in the transportation of illegal Bibles and religious materials.
The Tribunal also referred to the Applicant's claims that he had to leave China because he had been subjected to persecution due to his religious beliefs and practices.
The Tribunal accepted that the Applicant was a citizen of the People's Republic of China and assessed his claims against that country. The Tribunal was not satisfied that the Applicant was a practicing and committed Christian who has risked detention or imprisonment because of his religious beliefs.
The Tribunal gave its reasons for that, stating that the Tribunal would expect that the Applicant would have readily demonstrated his knowledge of and familiarity with the Bible. This, however, was not the case. The Tribunal said on page 87 of the Court Book:
His knowledge was limited and responses to a variety of questions were confused. He was able to state that the Bible consisted of the Old and the New Testaments but could not answer basic questions about the contents of the New Testament or the source of the writings. Whilst he was able to answer some basic questions about Christianity, he was not familiar with the concept of the Gospel and its message, which is another key aspect of the Shouter creed.
The Applicant was unable to tell me anything of the origins or history in the Shouter movement, and his responses to my questions about the beliefs and practices were vague and unconvincing.
At page 88 of the Court Book the Tribunal said:
I do not accept that the Applicant is, or ever has been, a committed and practicing Christian of the Shouter movement.
It was for those reasons that the Tribunal did not accept that the Applicant had been detained, as he claimed in February 2002, or that he had any involvement in the transportation or delivery of Bibles or other religious materials in China.
In summary, on page 88, the Tribunal said:
On the basis of all the evidence before me, I am not satisfied as to the credibility of the Applicant's claims to an involvement with the Christian Shouter religion, or in the smuggling and distribution of bibles in China.
The Applicant, in his Amended Application, gives two grounds. One, there was an error of law in the Tribunal's decision constituting a jurisdictional error. Two, there was procedural error in the Tribunal's decision constituting an absence of natural justice.
The Applicant gives six particulars of his grounds in the Amended Application.
The first particular consists of direct quotes of sections 424, 424A, 424B and 441A of the Migration Act 1958, the second particular refers to the reliance by the Tribunal on the Independent Country Information, being two reports from the United States Department of State.
The final four particulars in the Amended Application set out the Applicant's other claims. Paragraph 3 expresses the view that the Tribunal's decision should not rely on the independent country information because that information only reflected the general situation in China.
Paragraph 3 also claims that the Tribunal could easily find out a great deal of independent evidence that the Tribunal failed to do so. The Applicant says that the Tribunal failed to find out that information because it never ever intended to make a fair decision on his review application.
Particular 4 if the Tribunal did rely on the independent evidence, according to section 424 of the Migration Act, the Tribunal failed to invite him to give additional information against that independent evidence.
Particular 5 claims a breach of s 424A of the Migration Act in that the Tribunal did not give to the Applicant particulars of any information that the Tribunal considered would be the reason or a part of the reason for affirming the decision that is under review, and ensure that the Applicant understood why it was relevant to the review and invite him to comment on it.
Particular 6 is in effect a repeat of number 5, claiming a failure by the Tribunal to ensure that the Applicant understood the independent information and the Tribunal failed to give the Applicant any fair opportunity to comment on it.
In his oral submissions at the hearing, the Applicant complained that the Tribunal member interrupted him when he was thinking about the answers that he would give to her questions and complained that the interpreter for the RRT hearing interpreted in the Mandarin dialect, which he found difficult to understand when dealing with religious questions.
He said that when dealing with matters of religion - because many of the members of the Shouters Church were old people, aged 70 or 80 years in his home town, they spoke the Fujian dialect rather than the Mandarin. And it was difficult for him to understand.
The Applicant also complained that the Tribunal member did not make a proper investigation of his claim.
I have had the opportunity of reading the written submissions prepared by Ms McNaughton of counsel for the Respondent Minister. She refers to the Applicant's Amended Application as raising a ground of absence of natural justice, particularised as failure to comply with s.424A of the Migration Act.
She submits that that particular ground must fail as the independent information used by the decision maker was not information that was specifically about the Applicant, just about the class of persons of which the Applicant was a member. And such is covered by the exceptions set out in s.424A (3) (a) of the Act.
She relies on the Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.
In my view, that contention is correct.
I have read the Independent evidence contained in the Tribunal decision. It is general information about religious freedom, or the lack of it in China, and about the authority's negative view of the Shouters underground Church in particular. To my mind that is clearly information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant is a member, and comes clearly within the exceptions set out in s 424A(3)(a). That ground of review therefore must fail.
The Applicant's claim that the Tribunal should not rely on independent evidence must also fail. It is quite clear that s.424 of the Migration Act allows the Tribunal to seek additional information that it considers relevant, and if the Tribunal gets such information it must have regard to that information in making the decision.
To my mind, that is what the Tribunal appears to have done.
The Applicant also claimed, of course, the Tribunal should have made further investigations to find out other independent information. He says that the Tribunal failed to do so because it never intended to make a fair decision on his review application.
The fact is, of course, that s.424 of the Migration Act does not require the Tribunal to make independent inquiries. It may do so, but it is not obliged to do so.
Ms McNaughton of counsel referred the Court to the decision of NAHI v Minister for Immigration and Multicultural and Indigenous Affairs, a decision of the Full Court of the Federal Court constituted by Gray J, Tamberlin J and Lander J, particularly at paragraph 11.
Their Honours say at [11]:
By s.424 (1) in conducting a review the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on country information. The weight that it gives to such information is a matter for the Tribunal itself. As part of its fact-finding function, such information as the Tribunal obtains for itself is not restricted to guidance, as the appellants submitted.
It may be used to assess the credibility of a claim of a well- founded fear of persecution. It is not, as the first appellant submitted, an error of law or a jurisdictional error, but the Tribunal could base a decision on country information that is not true.
The question of the accuracy of the country information is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of the country information, it would be engaging in merits review.
The Court does not have power to do that.
In my view the Tribunal made appropriate use of country information, which was of a general nature, and it had no obligation to make further inquiries. And it is, of course, no part of the Tribunal's function to make out the Applicant's case for him. It is for the Applicant to provide the information sufficient to allow the Tribunal to be satisfied that his application should be successful.
The Applicant also claimed in particulars 3 that the Tribunal “never ever” intended to make a fair decision on his review application. This is in fact an allegation of bias and bad faith. Ms McNaughton of counsel submitted, and I believe correctly, that there is no evidence at all of bias or bad faith.
I am mindful of the decision of the Full Court of the Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 194 ALR 749.
In the joint decision of Tamberlin J, Mansfield J and Jacobson J, their Honours set out a number of propositions about bad faith. At [43 ]their Honours said:
First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved.
Their Honours went on to say at [44]:
The fifth proposition is that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
In my view there is no evidence advice or bad faith on the part of the decision maker. It is all too frequent that the Court sees allegations of bias or bad faith, which appear to be included in applications without any evidence whatsoever. It is a regrettable tendency and the Court will take a serious view of it.
I am satisfied that the Tribunal did not breach ss.424 or 424A of the Migration Act. Whilst particulars refer to ss.424B and s.441A, there is no submission that any breach of those has been committed by the Tribunal and I certainly cannot see any.
The Applicant made the point at the hearing today that he was hampered at the Tribunal hearing because of the fact that the interpreter translated the English into Mandarin dialect, and that when dealing with matters of religion back in his home town, the applicant spoke in the Fujian dialect.
Well, not only did the Applicant not raise this point in his application or his Amended Application for review, but to this Court when he made his application for review to the Refugee Review Tribunal, the form asked him to specify if he needed an interpreter, and if so, in what language and what dialect.
This application appears to have been prepared with the assistance of a Migration Agent whose address is given for correspondence.
I note on page 55 of the Court Book that the Applicant asked for an interpreter in the Chinese language and in the box for dialect, has specifically been typed in the word "Mandarin".
The fact is that at the RRT hearing the Applicant got the interpreter he asked for. It can hardly be an error on the part of the RRT if the Applicant would have preferred an interpreter who spoke in the Fujian dialect.
I am mindful of the fact that the Applicant is not legally represented.
I have read through the decision carefully and I cannot see any error on the part of the Refugee Review Tribunal that would amount to jurisdictional error.
The fact is, as the Tribunal makes quite clear at page 88 of the Court Book, the Tribunal was not satisfied as to the credibility of the Applicant's claims to involvement with the Christian Shouter religion or in the smuggling and distribution of Bibles in China.
It is well known that the question of credibility is a finding which is the function of the primary decision maker. It is not a question for the Court. I refer to Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham [2000] 168 ALR 407 at paragraph 67, where McHugh J said that a finding of credibility:
Was essentially a finding as to whether the prosecutor should be believed in his claim - finding on credibility which is the function of the primary decision-maker.
There is no reviewable error. I find that there is no jurisdictional error which would remove the decision of the Refugee Review Tribunal from the protection of the privative clause section of the Migration Act s.474. I am satisfied that this decision is a privative clause decision and I dismiss the application.
There is an application for costs. The Applicant has been wholly unsuccessful in his claim. The First Respondent is, to my mind, entitled to an order for costs. Having decided that, I consider that the sum of $4,500.00, which is sought as a lump sum is an appropriate figure.
I note that it includes counsel's fees and I note, as Ms McNaughton has pointed out, that there were in fact two direction hearings.
The Applicant did not appear on the First Court Date, 15th December 2004, but he did appear at the second Directions Hearing on 12th January 2005. It is the practice of the Federal Magistrates Court to make costs orders in a lump sum, and as I said, I considered the amount sought to be within the scale prescribed by the Federal Magistrates Court Rules.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 18 October 2005
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