SZFFJ v Minister for Immigration
[2005] FMCA 1034
•14 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFFJ v MINISTER FOR IMMIGRATION | [2005] FMCA 1034 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no lack of procedural fairness or error of law. |
| Migration Act 1958, ss.422B, 424A |
| Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZECH vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 246 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry [2001] FCA 919 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 178 ALR 421 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re RRT; Ex parte H (2001) 179 ALR 425 Commissioner for Australian Capital Territory State Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 |
| Applicant: | SZFFJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3613 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 14 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr J. Potts |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3613 of 2004
| SZFFJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 November 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant is a national of the People's Republic of China who came to Australia in May 2004 and applied for a protection visa. The application was refused and he sought review of the Tribunal. He attended a Tribunal hearing and gave oral evidence. His claims appear in a statutory declaration submitted in connection with his original protection visa application and a further declaration that appears in the form of a letter that was submitted with the application for review to the Tribunal and in oral evidence at the Tribunal hearing.
The applicant claimed to have a well-founded fear of persecution on the grounds of his Christianity and membership of and involvement in an underground church in China. He claimed to be a Christian who was baptised in December 1995 and was a key member of a branch of the ‘Shouters’ denomination of the underground Christian church whose leading priest, Priest He, had been arrested by the PSB at least three times since 1986.
The applicant claimed that from January 1996 to December 1998 he regularly joined in a bible study group and distributed religious promotional material, that he joined a construction team and was instructed by Priest He to set up a Shouters bible study group. He claimed that from January 1999 to October 2001 he actively spread the gospel among construction labourers. He organised a bible study group which came to the attention of the local government when distributing material. He claimed that the construction site was raided by the police on 28 October 2001 and that he and the construction team organiser were detained for over a month and subjected to interrogation and physical mistreatment. For a year thereafter he worked as a main assistant to Priest He in Fujian Province. From December 2002 until February 2004 he worked in Guangxi Province as a salesperson and organised bible study groups. The applicant claimed that he returned to Fujian Province in early 2004 at the request of Priest He to help to restructure the underground church.
The applicant claimed that on 12 April 2004 after a police raid one of the staff of an associate in Guangxi Province reported him as one of the most important members of the organisation. He claimed that he was in immediate danger although his special role in the church was not completely discovered by the government before he left China on 30 April 2004.
In a written submission to the Tribunal he claimed that:
In order to assist me to leave the country, Priest Xia Xing HE immediately used his secret contact […] in Guangxi … to arrange me to escape from the country as soon as possible. Carefully arranged by [this contact], I successfully left the country on 30th April 2004 …
Especially [this contact] has assisted me to change my name and other personal documents solely for the purpose to get my passport and smoothly leave the country.
He also claimed that in May 2004 his wife was interrogated by the local PSB and was told he was wanted by the authorities because of his involvement and special role in the Shouters denomination and also because of his special long term relationship with the priest.
The Tribunal recorded that at the Tribunal hearing the applicant claimed that he used another person's name on the passport that he used to travel to Australia. He confirmed that he had travelled to Hong Kong, Singapore and Malaysia using this passport in August 2003 and returned to China. According to the Tribunal, the identity of the applicant was also discussed at the hearing and the applicant elaborated on his claims.
In its reasons for decision the Tribunal outlined the evidence in relation to the applicant's identity and his production at the hearing of what he claimed was his personal Chinese identity card. It noted that at the hearing he had claimed first not to have any evidence to provide the Motor Registry Office in Australia about his identity in connection with a licence application and not to be able to get any, yet he later produced an identity card issued by the People's Republic of China.
The Tribunal was satisfied that the applicant lied to it at the hearing and found he was not a credible witness. It was not able to satisfy itself that the reason he obtained the passport in a different name (in August 2003) was to hide his identity from the authorities for a Convention reason shortly before he ultimately left China after the claimed report to the authorities that he was one of the most important members of the Church (which he said had occurred in March 2004). However it gave the applicant the benefit of the doubt and accepted that his real name was as he had claimed in the hearing and as shown on the identity card and that he was a national of the Peoples Republic of China.
Based on the applicant’s answers to questions at the hearing and in view of the letter of support he provided from “The Church in Sydney” dated 18 October 2004, the Tribunal accepted the applicant's claims that he was a Christian and was baptised in December 1995. It also accepted that he was, as claimed, a member of Priest He's underground Shouter Church, attended bible studies, distributed material and helped arrange for Priest He's program. However it did not accept that he was ‘one of the most important members’ of the underground church as claimed or that he had any religious profile. It found he had embellished his claims to enhance his claims for a protection visa.
The Tribunal gave reasons for its rejection of key aspects of the applicant's claims including his claimed detention and torture. It outlined concerns about these claims put to the applicant and his responses including a number of different answers he gave to the question of why, in view of the brutality of his claimed treatment, he returned to China after his travel to Singapore and Malaysia in August 2003 and did not seek international protection. It found that he had provided no evidence (other than his claims) to support his claims about past mistreatment, such as a copy of any detention order, a fine notice or a medical certificate about any injuries received when allegedly tortured. It noted that he had not sought asylum when he left China in August 2003, that he had provided a number of different answers as to why he had not done so and that he had not claimed that he went into hiding or even changed his address to avoid a repeat ocurrence of detention or mistreatment.
The Tribunal was satisfied that if the applicant had been detained and was brutally tortured as he claimed he would have taken the opportunity in his travel overseas in August 2003 to claim asylum outside China or to seek to go to another country where he could have sought protection and would not have been willing to return to China and risk being subjected to persecution again. It did not accept that he was held in detention and tortured as claimed or that he had a well-founded fear that he would receive more severe treatment on return to China.
The Tribunal also found no documentary or other evidence to support the applicant’s claims about the events shortly before he left China or his claims about having a special role in the underground church. It accepted that he was an ordinary Christian without any leadership role or profile and that the underground church had experienced some problems in the past, but was not able to satisfy itself that any subjective fear the applicant may have was a well-founded fear of serious harm amounting to persecution for a Convention reason.
It addressed his claimed fear based on his religious beliefs and lack of genuine religious freedom in China and the claim he made at the hearing that over the last few months he had been involved in church activities in Australia and felt there was greater personal and religious freedom here and that the society focused on human rights. The Tribunal noted that these claims were made in the context of the applicant’s claimed Christian faith and persecution in China which it had dealt with, but also considered such claims as a claim about human rights abuse and religious suppression in China. It found that it had dealt with such claims as the applicant made and that no further specific claims in this regard were made by him. It was not able to satisfy itself that the applicant had experienced any difficulty in the past on this basis or that there was any reason to suspect there was a real chance he would do so for a Convention reason if he were to return to China. It was satisfied there was not a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason if he returned to China either now or in the foreseeable future and found that he was not a refugee.
The applicant sought review of the Tribunal decision by application filed in this Court. He relies on an amended application filed on 17 March 2005. He did not file written submissions but made oral submissions in the hearing to which I will return. The grounds in the amended application are that there was an error of law constituting jurisdictional error and an absence of natural justice. Four particulars of both grounds are provided as well as a fifth particular being a belief that the Tribunal did not assess the application fairly and carefully.
The first set of particulars relied on in relation to both grounds relates to the Tribunal findings about the applicant's credibility, identity and the Tribunal consideration of what occurred in relation to his application for a driver's licence in Australia. The applicant claimed that the Tribunal had a ‘strong bias’ in making its decision had apparently ignored his claims on purpose and apparently confused right and wrong. I have considered each of these claims in relation to the matters particularised.
The complaint of bias appears to be a complaint of actual bias founded on a concern about the manner in which the Tribunal dealt with the applicant's evidence about his false passport. It also takes issue with the Tribunal’s knowledge about the situation in China and the factual findings of the Tribunal. The applicant contended first that he did not lie to the Australian government after he arrived in Australia, but had indicated on his application for a protection visa that he had another name as well as the name in which the passport appeared and that he used his genuine name in social activities such as at the church in Australia.
However, as indicated above, while the Tribunal did express concerns about the applicant's identity and raised with him the issue of the use of that passport and name, it gave him the benefit of the doubt and accepted that his real name was the name that he claimed. Its findings about his truthfulness and credibility related not to his travel on a false passport, what he had told the government when he arrived in Australia or his use of a false name to apply for a driver’s licence but, rather, to his claims in the hearing not to have any evidence of his true identity (such as to provide the Motor Registry Office) whereas in fact he produced a People's Republic of China ID card in that identity. The Tribunal did not, as contended, believe that the name in his passport was his true name. Rather these were matters put to the applicant for comment in the hearing. Insofar as he takes issue with the precise nature of the prerequisites of the Road Traffic Authority for the issue of a licence, while there was clearly some discussion of this issue it is not a matter that the Tribunal relied upon in reaching its decision except insofar as the applicant claimed he had no evidence of his identity other than his passport and subsequently in the same hearing produced an identity card. It must be borne in mind that, as stated in Re RRT; Ex parte H (2001) 179 ALR 425 at [30], where credibility is in issue the Tribunal member:
Will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
The other factor raised by the applicant in connection with the claim of bias in particular (1), relates to his claim that a named person assisted him to change his name and obtain other documents ‘solely’ for the purpose of getting his passport and smoothly leaving the country. He takes issue with the Tribunal's treatment of his motivation for obtaining a passport issued in another person's name in August 2003. The Tribunal findings related to the timing of issue of the passport, compared to the time at which he was allegedly reported as being ‘one of the most important members’ of the underground church. It had regard to the fact that this event was after the issue of his passport and hence that the passport could not have been issued in order to enable him to escape thereafter or to hide his identity from the authorities for a Convention-related reason after the claimed disclosure of his importance. Critically, the Tribunal accepted that the applicant's real name was as claimed. The applicant’s claim that he never lied to anyone takes issue with the merits of the Tribunal findings on credibility – findings that were open to it on the material before it for the reasons it gave.
It has not been established that the Tribunal exhibited bias in the way in which it dealt with the issue of the false passport and the applicant's identity or in any other way. Contrary to any suggestion of pre-judgment, (see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 178 ALR 421 at [72] per Gleeson CJ and Gummow J) the material before the Court indicates that while the Tribunal had, and expressed, some doubts in relation to particular matters based on the material put before it by the applicant, nonetheless it put matters to him for comment and accepted aspects of his claims, in particular in relation to his identity and religion.
On the material before the Court bias has not been established either in the form of actual or, indeed, apprehended bias or as constituting jurisdictional error.
The applicant also claims, arising out of the same particulars, that the Tribunal has ‘apparently ignored’ his claims ‘on purpose’. Such claim has not been established. The Tribunal disagreement with aspects of the applicant's evidence does not establish that it ignored his claims. Insofar as this contention relates to the applicant's claims that in December 2002 the priest suggested that he leave Fujian for the time being and that the priest was arrested by the authorities early in 2003, the Tribunal referred to these claims in its reasons for decision and sufficiently addressed them in the findings and reasons part of its decision. It accepted the underlying claims as to involvement in Christianity and the Shouters, but rejected for reasons which it gave which were open to it on the material before it, particular aspects of the applicant's claims, in particular as to an important role in that organisation.
Nor did the Tribunal ignore the reference provided by the Sydney church members. Indeed it was on the basis of that letter, as well as the applicant’s evidence at the hearing, that the Tribunal accepted that he was a Christian and was baptised in December 1995. The complaint that the Tribunal confused right and wrong is a complaint about the merits of the Tribunal decision. Merits review is not available in this Court.
In particular (2) the applicant takes issue with the Tribunal’s reliance on the absence of any supporting documentary evidence about his claims. He contended that this indicated that the Tribunal had made a biased decision. He doubted whether the Tribunal had even a basic knowledge about the situation in China. However, again, bias is not established by the fact that, in addition to other factors to which it referred in assessing the credibility of the applicant's claims about the activities he was involved in in China, the Tribunal had regard to the absence of documentary evidence in support of such claims. Nor does the claim about the Tribunal’s level of knowledge about China establish jurisdictional error.
I have referred to the evidence provided by members of the church in Sydney. The applicant, in addition to claiming that evidence was ignored, claimed that such evidence was helpful to determine his genuine identity, religious practices and beliefs. However the Tribunal accepted all of the claims made in the letter from the church in Sydney dated 18 October 2004 as to the applicant's identity, Christianity and involvement with the church since he arrived in Sydney. No error is established in its treatment of that material.
The final particular in the amended application is a contention that the Tribunal cited independent country information but failed to comply with s.424A of the Migration Act 1958 in respect of that country information. Insofar as the complaint is that an invitation to comment on country information was not given pursuant to s.424A, it did not need to be, as subsection 424A(3)(a) applied to such information and excluded it from the operation of s.424A(1). (Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). Nor is the factual basis for a claim that country information was not put and explained to the applicant in the hearing established insofar as that may be required under natural justice principles and whatever the operation of s.422B is in combination with s.424A may be (SZECH vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 246 at [34]). The applicant had the opportunity to file and serve a transcript of the Tribunal hearing by 17 March 2005 pursuant to the orders that were made at the directions hearing on 23 December 2004. He did not do so. This is not a case in which it should be inferred from the Tribunal account of the hearing that information was or was not put to the applicant. No error of law constituting jurisdictional error or lack of natural justice is established in the manner contended in the amended application. The general claim that the Tribunal did not assess the application fairly and carefully does not establish such error. No bias or lack of procedural fairness is established by this general contention.
In the hearing the applicant made six points which overlap with the grounds and particulars in his amended application. He alleged bias, apparently on the basis that the Tribunal made some adverse credibility findings. However credibility is a matter for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. As indicated, findings in that respect were open to it on the material before it for the reasons it gave. The fact that the Tribunal made some adverse credibility findings does not establish actual bias in the sense of pre-judgment or indeed, apprehended bias or in other way establish that the Tribunal fell into jurisdictional error. I am not persuaded that this is one of those rare and exceptional cases in which actual bias has been demonstrated solely from the published reasons for decision. Consistent with this conclusion is the fact that, as indicated above, the Tribunal accepted aspects of the applicant's claims, particularly in relation to the issue of his identity and Christianity. The fact that adverse findings were made is not sufficient to establish or demonstrate that the decision-maker was biased or that a “fair-minded lay observer might reasonably apprehend [the decision-maker] might not bring an impartial mind to the resolution of the question to be decided” (Re RRT; Ex parte H (2001) 179 ALR 425 at [27] or that he approached his task in a manner which did not demonstrate a mind open to persuasion.
The applicant claimed, without elaboration, that the Tribunal did not make its decision on the Refugees Convention. Such a general claim does not establish error. The Tribunal clearly set out and understood the applicable law. It has not been established that the Tribunal failed to apply the applicable principles. The applicant's related claim, that he was ‘not told why’ is contrary to the evidence of the lengthy Tribunal decision which was sent to him. The applicant contended generally that the Tribunal did not examine the evidence he had provided. It appears that this is a reference to the documents he submitted to the Department and the Tribunal explaining his experiences and his relationship with the priest. Insofar as the applicant complains that the Tribunal did not accept his claims in that respect, he takes issue with the merits of the Tribunal decision. The Tribunal examined the claims in the evidence before it and cannot be said to have failed to take into account aspects or integers of the applicant's claims.
The applicant also claimed that the Tribunal misled him and that this was not in accordance with the duty of a Tribunal member. This general claim does not establish a jurisdictional error on the part of the Tribunal and as put, does not in fact indicate that the Tribunal in any way failed to carry out its obligation to review the decision to refuse to grant the applicant a protection visa. The applicant made a related claim that the Tribunal ignored all of his statements and submissions and that this indicated bias or discrimination by the Tribunal. Insofar as the applicant claims that the Tribunal did not consider the issue of his identity, that is contrary to the Tribunal reasons for decision which accepted that his identity was as claimed.
The applicant also referred to being a follower of the local church. Again, the letter from the local church was accepted by the Tribunal in support of his claims about activities in Australia and his Christianity.
Finally, the applicant referred to s.424A suggesting that the Tribunal was obliged to invite comment on information about his identity. However the information about the applicant's identity was information that the applicant provided to the Tribunal in the course of the Tribunal hearing and in his review application. As such it is information within s.424A(3)(b). More importantly, the Tribunal accepted that his identity was as claimed. Hence his identity was not the reason or part of the reason for the Tribunal conclusion.
The applicant also appears to contend that the grounds of refusal by the Departmental delegate should have been put to him under s.424A. However s.424A(1) applies to particulars of information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. It is the reasons for the Tribunal decision to which s.424A applies. There is nothing to suggest that particular aspects of the delegate's decision constituted information relied on by the Tribunal and subject to the s.424A(1) obligation. The information that was ultimately used by the Tribunal in a manner adverse to the applicant stemmed primarily from the evidence he gave at the hearing and in writing to the Tribunal. Such information is outside s.424A. The Tribunal is not obliged to put its reasoning process to the applicant pursuant to s.424A or otherwise (Commissioner for Australian Capital Territory State Revenue v Alphaone Pty Ltd (1994) 49 FCR 576). This is not a case in which issues arise from the principles in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry [2001] FCA 919. Insofar as the Tribunal referred to changes in the applicant’s evidence and inconsistency this was a reference to changes in his evidence and inconsistencies arising in the course of the Tribunal hearing. Finally the non-acceptance of aspects of the applicant's claims is not of itself material that is subject to an obligation under s.424A(1). As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The applicant's lack of money is not a reason for not awarding costs, although it may be a matter taken into account by the respondent in determining when and how to seek to recover costs. The amount of $4,100 which is sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date:
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