SZFKI v Minister for Immigration

[2005] FMCA 1963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFKI v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1963

MIGRATION – RRT decision – Chinese claiming religious activism in underground church – disbelieved by Tribunal – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034
SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392
Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212

Applicant: SZFKI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG35 of 2005

Judgment of: Smith FM

Hearing date: 19 December 2005

Delivered at: Sydney

Delivered on: 19 December 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Potts

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Tribunal be included as second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $4,430. 

4. These orders shall take effect on 31 January 2006. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG35 of 2005

SZFKI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 6 January 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 November 2004 and handed down on 10 December 2004.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuation of these proceedings (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The Court’s jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Pt.8 of the Migration Act which 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’s claims to be a refugee should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia. The power to make those decisions is given to the administrative officers and Tribunals, including the Minister. It is not given to the Court.

4. The present applicant arrived in Australia on 31 May 2004 on a two weeks visitor’s visa after a visit to New Zealand.  On 10 June 2004 he made an application for a protection visa assisted by a migration agent, Priscilla Yu.  In his visa application he indicated that he was a 30‑year‑old single man, a national of The People’s Republic of China. 

5. A statutory declaration attached to the application set out a history which explained the applicant’s reasons for seeking protection from Australia under the Refugees Convention.  He said he had been a general manager of a branch of a trading company.  He said he was a pious Catholic and had become “an activist of Roman Catholic Underground Church (“the underground church”)”.  His activities had included establishing in January 2002 a secret “liaison station of the underground church (“the Station”)” to which students from universities were sent to receive “special religious training at a secret Catholic Training Centre of the underground church (“the Training Station”).  The Station was also in charge of editing and printing religious promotion materials, such as leaflets or handbills, which were widely distributed in campuses of the universities”. 

6. The applicant said two people, S and T, were in charge of selecting students, and he himself took the final decisions on who would be sent to the training centre.  The training course took two or three months and he attended it himself on two occasions.  Training classes were given by “different Bishops”.  He was also “the final decision maker to decide what kind of promotion materials should be made” at the Station.  He said that between January 2002 and February 2004 “more than 100 students have accepted religious training by the Training Centre”.  He said that in April 2004 his secretary P told him that she had been informed by somebody in the education bureau who was also a secret member of the underground church that “the PRC authorities established a special investigation group to investigate so‑called “illegal” religious activities in the campuses of the universities”.  He then arranged for S to leave the city, temporarily stopped the religious activities.  His narrative continued: 

   12)In case of dangers to me, I began to secretly make my arrangement to go to the overseas through Mr L who worked at the Tourism Bureau of [city].  I got my visa in the middle of May 2004, and then came to Australia in the end of May 2004.  Originally, I intended to return to China on time, because I did not have any troubles even before I left that country.  However, on 5^th June 2004, I was informed by Ms P that Mr S had been arrested by the PSB in [province]; and Mr T was arrested in [place].  Ms P also told me that the news had been confirmed by his friend in the education bureau; and suggested me never return to China.  Since then, I have lost my contact with Ms P. 

   13)On 7^th June 2004, I was informed by staffs of my company, [company], that many policemen had come to my office on the morning of that day, and confiscated all of documentary materials there.  The policemen also sealed the house where I rent for my Station.  My brother, and parents, has been required to confess my so‑called “illegal” religious activities. 

   14)I have then been confirmed by my secret contact in the [city] PSB that I have been listed as an internal target by the PRC authorities; and I must be arrested immediately as soon as I arrive in China. 

   15)In conclusion, I have to seek a protection in Australia, because I have become the target of the PRC authorities owing to my special role in the underground church; and I cannot return to the PRC because of my fear of being persecuted by the Chinese government. 

7. He did not present to the Department, nor to the Tribunal any corroborative evidence of these claims, apart from a certificate given to the Tribunal from a local church in Sydney certifying that he, the applicant, is a member of the Catholic community “being faithful to his religious duties”. 

8. A delegate refused the application on 17 June 2004, noting that the applicant had provided no evidence, and referring to country information.  The delegate concluded: “it is reasonable to conclude that his claims do not represent the reality of his situation”. 

9. The applicant appealed to the Refugee Review Tribunal on 21 July 2004 assisted by his agent.  His application said: “please refer to my claim document”, which I consider would reasonably be understood as a reference back to the applicant’s statutory declaration and also to a submission which was lodged with the Tribunal.  The submission referred to the DIMIA file, and argued against the reasoning followed by the delegate.  The submission included extracts, almost verbatim, of the factual claims which had been made in paragraphs 12, 13, 14 and 15 of the original statutory declaration, set out above. 

10. The applicant attended a hearing by the Tribunal on 29 October 2004, and it seems his adviser also attended and made submissions to the Tribunal.  In its statement of reasons the Tribunal referred to how it questioned the applicant about his claims, and the applicant elaborated them in terms which were mostly consistent with his written claim.  He indicated that he had been baptised in 2001, and showed some knowledge of the Christian religion.  The Tribunal put various matters to the applicant, including country information which it ultimately referred to in its reasons.  The Tribunal detected only one inconsistency arising from his evidence, and I shall refer to that below. 

11. The Tribunal’s assessment of the applicant’s claims under the heading “Findings and Reasons” occupies some seven pages.  At times the Tribunal’s syntax is flawed and its reasoning not clear.  It is apparent to me reading the material as a whole in the light of the impression given to me by the applicant’s submissions to me today that it was not an easy case to decide.  The applicant presented an intelligent and polished set of claims devoid of any corroborative support.  It was the Tribunal’s job to assess the truth of his significant claims to have been an activist.  Ultimately, I have not been persuaded that its conclusion, that the claims should not be accepted as true, was not open to it as a matter of law. 

12. The Tribunal at the start of its reasoning accepted that the applicant “is a Christian and has been a member of the underground Church”.  It referred to his previous travels out of China every year since 2000, and also accepted “he never felt the need to seek asylum for any reason in any of these countries (including during his first visit to Australia and then New Zealand) prior to arriving in Australia for the second time on 31 May 2004”.  The Tribunal therefore correctly recognised that the applicant was “in effect making a sur place claim”. 

13. The Tribunal identified what it regarded as a significant inconsistency between his written claims, and what he said at the hearing and from his responses to the Tribunal’s questioning about that inconsistency.  Of itself, the inconsistency could not be regarded as conclusive of the truth of all the applicant’s claims.  It was that the applicant both in his statutory declaration and his written submission to the Tribunal referred to it having been “confirmed by my secret contact in the [city] PSB that I have been listed as an internal target by the PRC authorities”.  However, at the hearing he denied that he had said this, and referred to receiving information from somebody working in the Education Department.  The Tribunal made a positive finding: 

    The Tribunal does not accept these claims that he had been reliably advised that he has been “listed as an internal target by the PRC authorities” as [scilicet: because] how he learnt this, who from, and how that the person concerned was in a position to know changed in the course of the hearing from the claims made in his protection visa application. 

14. On my reading of the Tribunal’s reasoning, its finding about this change of evidence was one significant element leading it to reject what the Tribunal described as his “unsupported claims” that he had established a “station” of the underground church and had been involved in its activities as he claimed. 

15. Although at times the Tribunal framed its findings in terms that it “has not been able to satisfy itself” as to these claims, I consider that it is clear from its over‑all reasons that the Tribunal was in fact positively not satisfied as to their truth.  The Tribunal concluded this discussion:  

    It follows that the Tribunal finds that the Applicant has embellished his claims with the objective of enhancing his claim for a protection visa, and finds that this also goes to the matter of his credibility. 

16. Read in isolation, this part of the Tribunal’s reasoning is not persuasive.  However, I must give the Tribunal’s reasoning the latitude required under Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291, and must also understand this passage in the light of the Tribunal’s subsequent reasoning and the general nature of the claim which was before it.

17. The Tribunal then moved on to consider the claim that the applicant had decided not to return to China as a result of information reaching him by telephone from members of his family and others.  The Tribunal referred to having discussed the likelihood of this with him at its hearing, and to the absence of evidence supporting the communications having occurred.  The Tribunal found: 

    The Tribunal does not accept these claims and is satisfied that if his friends had been arrested, his business sealed, and he was told not to return to China, [sic: neither] he [n]or his sister (even if she called his mother from a public telephone in Taiwan) would have discussed these matters over the international land line or mobile network to China.  It follows that the Tribunal does not accept these claims and is satisfied that there is not a real chance that he would have any difficulties for a Convention related reason if he returns to China.  It follows that the Tribunal again finds that the Applicant has embellished his claims and does not [find] that he will be subjected to arrest on his return to China for this or any other Convention related reason. 

18. The Tribunal then referred to country information which was put to the applicant concerning the situation of the underground churches in China, noting that “there are some 50 million other underground church members in China”.  It referred to the applicant’s claims of religious activities which it had rejected, but considered his situation as  a Christian on a broader basis: 

    At one level these claims could also be taken to be a wider reference to his objection to the more generalised system of human rights abuse and religious suppression that he believes currently limit religious freedom in China, and particularly objection to the Chinese Communist Party’s dictatorship. 

19. The Tribunal referred to country information showing differences between freedom to express political and religious views in China compared to Australia, but concluded: 

    However, the Tribunal also accepts the abovementioned independent country information that was put to the Applicant at the hearing over the generalised and unsupported claims made by the Applicant who has been found not [to] be a credible witness and, accordingly, the Tribunal has not been able to satisfy itself that there is a real chance that he would experience serious harm amounting to persecution for a Convention reason on this basis if he were to return to China.  Further, given all the above, the Tribunal is satisfied that the Applicant has not had a high profile involvement in the underground church and is not of interest to the PRC authorities and does not accept that simply because he has grown up in [location] and his family and church is there that he would not be able to move to elsewhere in China.  The Tribunal accepts that the Applicant is [a] relatively young unmarried man and has been a very successful businessman.  It follows that the Tribunal is satisfied that if for any subjective reason the Applicant does not want to return to [location], then he would be able to live elsewhere in China and remain a member of the underground Roman Catholic church without there being a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason on this basis. 

    In short, having considered all the claims made by the Applicant, the Tribunal is satisfied that there is not a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason if he returns to China, either now or in the foreseeable future and, finds that he is not a refugee. 

20. Notwithstanding some defects in the Tribunal’s expression of its findings, I consider that its conclusion rejecting the applicant’s claims to have been a Catholic activist and, as a result, to have become the target of PSB attention after he came to Australia is clear.  I consider that its reasoning given for its conclusion was not irrational and was open to it on the material. 

21. I also consider that its reasoning sufficiently reveals that the Tribunal applied a “real chance test” to its assessment of the claimed history of persecution (see my recent extraction of the authorities in SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392). The Tribunal referred to that test in its “boilerplate” discussion of the definition of “refugee”, and it expressly reminded itself of this in its “Findings and Reasons” at a critical point, where it noted that “while it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt”.  Ultimately, its conclusions, in particular those that I have extracted immediately above, make it clear that the Tribunal found against the applicant based on a positive rejection of the credibility of his principal claims.  In those circumstances, the Tribunal was not required to engage in further discussion of the possibility that the applicant’s claims were true. 

22. Another aspect of the Tribunal’s reasoning which I discussed with counsel for the Minister, although it was not raised by the applicant’s application, was whether the Tribunal was obliged to give a written invitation to the applicant to comment upon information used by the Tribunal as part of its reasons for affirming the delegate’s decision pursuant to s.424A(1). It is plain, as I have indicated above, that a significant point in the Tribunal’s reasoning relied upon inconsistency between the original written claim attached to the visa application and what he told the Tribunal at the hearing. However, in my opinion the applicant “republished” that original document, or at least its critical parts, in the manner which I have described above. I therefore would apply Gyles J’s reasoning in SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034, and consider that no duty arose under s.424A(1).

23. The applicant’s application to this Court filed on 6 January 2005 makes a series of contentions that the Tribunal failed to address his claims.  In my opinion, these contentions largely went to the merits of the assessment arrived at by the Tribunal.  They were further elaborated in an amended application filed on 13 April 2005 which contained the following three grounds and particulars: 

    1.The Tribunal denied me a fair hearing which is a denial of procedural fairness. 

    PARTICULARS 

    1.1The decision was based on unwarranted assumption. 

    1.1.1That because I had travelled overseas and not claimed asylum that I did not have a real fear of persecution.  My evidence was that my religious activities had only been discovered by the PRC authorities after I had arrived in Australia. 

    1.1.2That an officer of the Education Department would not have become aware of an investigation into my affairs.  My evidence was that my affairs were carried out inside educational institutions. 

    1.1.3The Tribunal relied upon “Country Information” in relation to the “Official Catholic Church” to make findings in relation to the “Underground Catholic Church”. 

    1.1.4The Tribunal made findings about my sister and church based on the lack of evidence, without giving my opportunity to meet these concerns. 

    2.The Tribunal took account of irrelevant considerations. 

    PARTICULARS 

    2.1The Tribunal found, CB 93, that I had travelled to a number of countries “without claiming the applicant ever had any difficulties whatsoever on these occasions when he either left or returned to China.  Moreover, the Tribunal also accepts that he never felt the need to seek asylum for any reason in any of these countries.”  My  evidence, accepted by the Tribunal, was that my concerns only arose, from the action of the PRC government, after I arrived in Australia. 

    3.The Tribunal applied the wrong test to determine my credibility. 

    PARTICULARS 

    3.1The Tribunal, at CB 94, inferred that it would accept evidence if it was “supported”. 

    3.2The Tribunal found that my evidence was “embellished” which infers that it was based on the truth without going further to make finds or identify the truth upon which it was based. 

1. Counsel for the Minister in his written submissions has carefully addressed these claims and their particulars, and in my opinion has identified correctly the reasons why the applicant’s contentions do not establish a jurisdictional error.  The relevant parts of his submission are extracted and attached as a Schedule to this judgment.  It is unnecessary for me to elaborate the points he makes, and I adopt them as my reasons for rejecting these grounds.  

2. The applicant today presented a reasoned and emotional submission to me seeking to reveal the Tribunal’s error in its reasoning.  Understandably, he could not distinguish between criticisms revealing jurisdictional error from those merely taking issue with factual conclusions.  I think he made six points, which I should address. 

3. The applicant’s first point was that the Tribunal had not appreciated his important point, which was that he had not feared persecution, such as to lead him not to wish to return to China, until after he arrived in Australia.  However, in my opinion the Tribunal’s reasoning shows clearly that it was aware that it needed to address a sur place claim, and I have indicated how it did this above. 

4. The applicant’s second point was that the Tribunal referred to country information concerning the situation of Christians practising their religion in China which was irrelevant to his claims, because it did not appreciate that official churches were controlled by the State in important respects and his activities were performed in the “underground” church.  However, in my opinion the Tribunal did not base its decision on irrelevant country information.  Where, particularly in the later parts of its reasoning, the Tribunal drew a conclusion from the situation of Christians, it appreciated that the applicant should be considered in relation to participation in the “underground church”.  Its conclusions about the position of such people were, in my opinion, open to it, and it is not my function to determine whether they were correct on their merits. 

5. The third point made by the applicant, very strongly, was that the Tribunal had not appreciated the significance of the circumstance in his claims that he had been a successful business person in China and had no reason therefore to wish to remain in Australia if he had not feared persecution.  He contended that information about his business success had been put to the Australian authorities in China when he obtained his visitor’s visa, and the Tribunal should have looked at it. 

6. I accept that in some cases a Tribunal may need expressly to discuss a claimant’s motivations for wanting to stay in Australia when assessing the credibility of refugee claims.  However, it is not legally bound to do so in all cases, and in the present case this point was not, so far as I can detect on the material before me, put forward by the applicant with any particular significance in the written material presented to the Tribunal or at the hearing before the Tribunal.  In those circumstances, I do not draw any finding of jurisdictional error from the absence of more extensive discussion of this circumstance in the Tribunal’s reasons.  I consider that the Tribunal was under no duty to obtain the documents concerning the visitor’s visa application (c.f. Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at [18]; and Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 at [15]).

7. The applicant’s fourth point was that it was irrelevant for the Tribunal to have considered his travel out of China over the years prior to his last entry to Australia.  It is true that the Tribunal referred to this travel, but in my opinion it did not do so in a manner which drew adverse inferences against the applicant from it.  As I have indicated, it showed itself aware that the applicant made a sur place claim arising from events occurring within days of his last arrival in Australia. 

8. The applicant’s fifth point was that the Tribunal unreasonably rejected the credibility of his claims to have been an activist.  He submitted that the Tribunal should have appreciated why it was difficult for a person in his position to be able to put forward corroboration, and he made other factual points concerning why the Tribunal should have accepted his claims. 

9. As I have indicated above, the applicant’s claims were difficult for any Tribunal to assess the truth of.  It is possible that another Tribunal might have accepted their truth, but it was the duty of this Tribunal to make its own assessment of the applicant, and I can find no jurisdictional error in how it went about that task. 

10. The sixth and last point made by the applicant also sought to characterise the Tribunal’s rejection of his claims as unreasonable.  He claimed this was revealed because other people had made similar claims, and their claims had been accepted by the Tribunal in other decisions.  However, it is impossible for me to evaluate this submission without knowing all the facts and circumstances in each of those other claims.  As I have indicated to the applicant, a Tribunal is not expected to engage in that sort of comparison before it assesses somebody’s claims, but has the duty to assess each individual case on its merits.  I am not persuaded that the Tribunal did not do that in this case. 

11. For the above reasons and taking into account all the points raised by the applicant and other aspects of the reasoning which I have thought about for myself, I have been unable to identify jurisdictional error affecting this decision of the Tribunal. It is therefore a privative clause decision for which relief is barred by s.474(1) and I must dismiss the application.

I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  16 January 2006

SCHEDULE

First Ground – the Tribunal denied me a fair hearing which is a denial of procedural fairness 

1. The applicant has provided four particulars to this ground of review. 

2. In relation to the first particular, the Tribunal did not make any critical finding based on the fact that he had travelled regularly overseas, and accepted that he claimed that he feared persecution for events that occurred after he left China, and was making a sur place claim (CB at 93.3).  The first particular is misconceived and demonstrates no denial of procedural fairness. 

3. The second particular complains about the Tribunal making an “unwarranted assumption” that an officer of the Education Department would not have become aware of an investigation into his affairs.  This is essentially a challenge to a finding of fact and the merits of the Tribunal’s decision.  In any event, this was an issue raised with the applicant at the hearing, and he cannot be said to have been denied procedural fairness in respect of it (CB at 93.7). 

4. The third particular claims that the Tribunal made an unwarranted assumption in relying upon country information.  The Tribunal was entitled to rely upon country information and no objection can legitimately be made on this basis, see: NAHI v MIMIA [2004] FCAFC 10 at [11].

5. The fourth particular claims that the Tribunal made an unwarranted assumption because it made findings about the applicant’s sister and church based on the lack of evidence, without giving him an opportunity to meet these concerns.  There is no evidence in the form of a transcript before the Court.  The Court cannot, in these circumstances, make a finding that the applicant was not given an opportunity to meet these concerns: NAOA v MIMIA [2004] FCAFC 241 at [21]. In any event, the Tribunal’s reasons disclose that it canvassed various issues with him at the hearing, including those complained about in this particular (CB at 84.1‑84.4).

6. In any event, s 422B applied in this case.  That section excluded common law obligations of procedural fairness, see: SZBDF v MIMIA [2005] FCA 1493 at [11]‑[18]; and SZEGT v MIMIA [2005] FCA 1514 at [29].

Second Ground – the Tribunal took account of irrelevant considerations 

1. The matter complained of, namely the Tribunal’s comments about the applicant’s prior travels, did not form the basis of any adverse finding against the applicant.  This ground is misconceived. 

Third Ground – the Tribunal applied the wrong test to determine my credibility 

1. These findings really quibble with the Tribunal’s findings of fact, and the merits of its decision.  The Tribunal’s adverse findings as to the appellant’s credibility were unobjectionable.  Findings on credibility are the function of a primary decision maker “par excellence”: MIMA v Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. So long as the Tribunal’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v MIMIA (1998) 86 FCR 547 at 558‑559. Those findings were open on the evidence.

2. The first particular to this ground complains that the Tribunal “inferred that it would accept evidence if it was ‘supported’”.  The Tribunal merely said that the Tribunal had been unable to satisfy itself based on “the unsupported claims made by the Applicant” (CB at 94.5).  That was unobjectionable. 

3. The second particular asserts that the Tribunal: “found that my evidence was ‘embellished’ which infers that it was based on the truth without going further to make finds [sic] or identify the truth upon which it was based”.  The Tribunal’s findings of embellishment (CB at 94.7 and 96.9) were findings that the critical aspects of the claims were untrue.