SZGKU v Minister for Immigration
[2006] FMCA 550
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGKU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 550 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X , 424A , 425, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559 |
| First Applicant: | SZGKU |
| Second Applicant: | SZGKV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1387 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 29 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| Applicants: | Applicants appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1387 of 2005
| SZGKU AND SZGKV |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 27 May 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 21 March 2005 and handed down on 22 April 2005, affirming the decision of the delegate of the first respondent made on 3 August 2004, refusing to grant the applicants a Protection (Class XA) Visa. The applicants seek unstated relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZGKU” (applicant husband) and “SZGKV” (applicant wife).
The applicants have not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Professor Samuel Blay of reference number N04/49830, contains the following background information. The applicants are husband and wife and claim to be citizens of the People’s Republic of China (“the PRC”). They arrived in Australia on 14 June 2004, and on 28 July 2004, lodged an application for a Protection (Class XA) visa under the Act with the Department of Immigration. On 3 August 2004, a delegate of the Minister refused to grant a Protection (Class XA) visa, and on 9 September 2004, the applicants applied to the Tribunal for review of the delegate’s decision. (Court Book (“CB”) 81)
The applicant husband claims to be a member of the “True Jesus Church”, which is an underground unregistered Christian based religion. He claims he was a leader of the church and was involved in the construction of a church building on land allocated for farming. As a result, he was targeted by the Public Security Bureau. The applicant husband claimed that if he returned to the PRC he would be arrested by the authorities for his religious activities. He was able to resist arrest in the past by bribing officials for a passport and spending seven years in Japan. (CB 86.9) He provided documents to the Tribunal, which stated he was fined RMB30,000 and sentenced to six months detention for illegally building the church on farm land. The applicant husband also claimed that the authorities had detained his parents to force him to return to the PRC. (CB 96.8)
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings and reasons are contained in the first respondent’s written submissions prepared by Ms Johnson and I adopt the following for the purposes of this judgment:
4.The Tribunal accepted that the applicant was a Christian and that he engaged in missionary work (CB 93.2). The Tribunal was not satisfied that there was any credible evidence to support the claim that he was a member of an illegal organisation in the PRC on the basis that the Public Security Administrative Sanction document submitted to the Tribunal by the applicant made no mention of the applicant belonging to an unregistered, underground organisation (CB 93.9).
5.The Tribunal accepted that the applicant may have assisted with the construction of a church building (CB 94.3) however, the penalties faced by him as a result of the construction did not amount to persecution (CB 95.5).
6.The Tribunal did not accept as credible the applicant’s claim that the authorities had detained his parents as it was not plausible to suggest that “since he left China, the authorities have developed an adverse interest in his parents because he the Applicant assisted in building the church in 2001” (CB 97.1).
7.The Tribunal relied on independent country information to find that the claim that the applicant bribed the authorities in order to procure a passport, to leave China and avoid being arrested was simply not credible (CB 96.4). It preferred the view that the applicant was not of adverse interest to the authorities.
8.The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason (CB 97.5). As the applicant wife made no specific Convention related claims, it followed that the Tribunal was not satisfied that she met the applicable criteria.
Application for review of the tribunal decision
On 27 May 2005, the applicants filed an application for review under s.39B of the Judiciary Act setting out the following ground:
The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision.
Particulars
The Tribunal misconstrued or misapplied the law concerning its determination. (copied without alteration or correction)
On 4 August 2005, the applicants filed an amended application which contained the following amended grounds:
1.On 9 June 2005 at 2.15pm we attended a Directions Dearing at the Federal Magistrates Court. By consent the Court orders that: “The applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 4 August 2005.” This “Amended Application” is filed and served in accordance with the Order.
2.We have been requested to provide an amended application BEFORE being given any opportunity to seek legal advice. This is unfair to us. We feel that we have been unfairly treated. We wish that we could still submit amended application in the future if our solicitor believes necessary. We hope that today’s chance is not final.
3.The Tribunal did misconstrue and misapply the law concerning its determination.
4.Many of our important claims, facts and evidence were not considered and assessed carefully when the decision was made by RRT. We do not have funds to prepare the RRT transcript. We would like RRT or the Respondent to provide us a RRT transcript if possible.
5.The nature of refugee claims involves risky factors when hard evidence was to be transferred from China to Australia. When some hard evidence was not yet available, we should be given some opportunities and benefits of doubts and our written and oral claims should be treated as evidence and be given sufficient weight. Let alone we DID provide lots of hard evidence to RRT. RRT Member chose not to believe us.
5.We need time to engage a proper solicitor to prepare for the case. We have not yet received any free legal advice from the lawyer appointed or recommended by the Court. This is unfair to us. We await an appointment from the “scheme”. We are not legally trained persons. We DO need legal advice to prepare legal documents. (copied without alteration or correction)
Reasons
The applicants appeared as self-represented litigants with the aid of a Mandarin interpreter. Although the applicants did not file any written submissions prior to the hearing, they took the opportunity to address the Court in support of their application.
The first issue raised by the applicants was that the Tribunal had breached s.425 of the Act. They then immediately complained about the way the Tribunal hearing was held. Before moving to those issues, the Court Book indicates that the applicants were originally invited to attend the Tribunal hearing on 25 November 2004 by letter dated
29 October 2004. (CB 61) This letter was forwarded to the applicant husband and a copy sent to the applicants’ agent, Ms Grace X Chen of Aussie Sino Angel Pty Ltd. The day before the Tribunal hearing, the agent forwarded a letter to the Tribunal seeking an adjournment on the basis that the applicant husband had been seriously ill, but indicated that he wished to attend and participate in the hearing. That adjournment was granted and a new hearing was scheduled for 1 December 2004. (CB 64)
The applicants attended the adjourned hearing, however, it became apparent during the course of the hearing that the translator had no comprehension of the concepts of Christianity, and was having trouble interpreting the circumstances relating to the issues being discussed. (CB 84) Consequently, the Tribunal rescheduled a further hearing for 24 February 2005 where the applicants gave comprehensive evidence to the Tribunal. Again, as the Court Book indicates, the applicants were correctly notified of the hearing in accordance with the Act to enable them to appear, which they did.
The applicants raised the issue before me regarding the problems in giving oral evidence before the Tribunal. Presumably this is a reference to the problem experienced with the interpreter service at the first Tribunal hearing. As has already been pointed out, this problem was recognised by the Tribunal member who adjourned the Tribunal hearing, rescheduled it and arranged for a more appropriate interpreter service. In the absence of a more specific complaint by the applicants, it appears that the Tribunal member took the appropriate steps to provide the applicants with the necessary arrangements for the hearing.
The applicants complain that they were deprived of the right to comment and adequately put forward their case. The applicants have not attempted to file a transcript of those proceedings, verified by affidavit, or any other form of evidence, other than oral submissions from the bar table. These remain allegations without substantiation.
The applicants raised a second claim that they were deprived of an opportunity to respond to certain issues. They claim that the Tribunal member did not disclose the errors that they had made in their submissions, resulting in the applicants being misguided. They therefore formed the wrong impression: that their submissions were accepted positively. They claim they formed the view that they were not required to give further explanation, other than the submissions they had already made and believed that they were accepted by the Tribunal.
The relevant facts pertaining to an application need to be supplied by the applicants themselves in as much detail as necessary to enable the applicants to establish the facts. It is for the applicant to make out their case: Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559 at 596 per Kirby J. In the present case, the applicants had the opportunity to attend both the adjourned hearing and the rescheduled hearing. At the end of the second hearing, the applicants’ adviser made a number of submissions and subsequently requested leave to file further written submissions post-hearing. To prepare those post-hearing submissions the adviser sought access to a copy of the Tribunal tape in order to review the issues raised during the proceedings, and to assist in the preparation of further written submissions to the Tribunal. The Tribunal provided the applicants’ adviser a 12 day period in which to make those submissions. After 21 days the Tribunal had not received any further material from the applicants or their adviser. The applicants cannot now complain that other facts were not taken into account in the Tribunal’s deliberations. His Honour Kirby J Minister for Immigration v Guo Wei Rong at 596 states the requirements as:
It remains for the Minister in the first place to be "satisfied" and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.
The Tribunal member conducts an inquisitorial hearing and consequently “is not obliged to prompt and stimulate an elaboration which the applicant choses not to embark upon”: Minister for Immigration; Ex parte Applicant S154/2002 [2003] HCA 60 at [58] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. However, although the Tribunal member has and inquisitorial function, he/she has an obligation to do so fairly. In the absence of Tribunal hearing tapes or any affidavit material from the applicants or their agent, there is no evidence before the Court other than the assertion made from the bar table at this hearing that the Tribunal did not conduct its hearing appropriately.
In Minister for Immigration; Ex parte Applicant S154/2002, Their Honours, Gummow and Heydon JJ acknowledged that a Tribunal member may find that it can be necessary to be confrontational and aggressive in order to carry out the inquisitorial function of the Tribunal. However in some circumstances, this may be seen or inferred as the Tribunal member displaying bias in his/her conduct of the hearing. This is the allegation made by the applicants. I shall return to this issue after.
However, I note this raises a contradiction between these two claims. The current claim is that the Tribunal member misled the applicants into believing that their submissions were accepted positively and that no further explanation was required. This type of claim is normally at odds with a claim of bias. Unfortunately, no independent evidence has been presented to enable this issue to be resolved. In the absence of such evidence, I am not satisfied that the Tribunal member has conducted the hearing in a way other than is required and this claim cannot be sustained.
The applicants claim a breach of s.424A of the Act, in that adverse information was not given to them in order for them to respond. They claim they were unable to refute that information. The information was not identified and is not particularised in any of the written submissions, their original application, or amended application. The Tribunal did refer to independent country reports, namely a US Department of State 2003 International Religious Freedom Report on China. There is also reference in its decision regarding the correct security administrative sanctions and the Chinese Penal Code Article 342. Both these documents fall within the exception in s.424A(3), in that it is information that applies to a broad category of people, not to the applicants specifically.
The applicants allege that the Tribunal member was both biased and unreasonable. Again these are all submissions made from the bar table without substantiation.
The claim of bias and unreasonableness may have arisen from the applicants’ earlier claim that the Tribunal member conveyed to the applicants that their submissions were complete and satisfactory in nature, needing no further explanation. Unfortunately, I do not accept this approach in the context in which the applicants made their limited submissions during this hearing.
The limited manner in which they raise this claim strongly suggests that the Tribunal member was not lulling the applicants into a false understanding or belief of their submissions being satisfactory, but rather, the Tribunal member was making the hearing difficult for the applicants. I note that this submission is at odds with the applicants’ second claim.The post-hearing submissions provided the applicants and their adviser with an opportunity to address the Tribunal with further material. These were ultimately not forthcoming.
In respect of the applicants’ original visitor’s visa, it is claimed that the church in China assisted the applicants in obtaining their visa and that the applicants themselves had no knowledge of the function or scope of the visa.
I note in respect of this claim that the original visa application was completed by the applicants in the presence of Ms Grace Chen, who appears on the application form as a qualified interpreter in the English/Mandarin medium. That application forum was completed on 22 July 2004. Although the Court Book does not contain the documents identifying Ms Chen as the applicants’ agent, the Department wrote to Ms Chen on 3 August 2004 advising her that the application for Protection (Class XA) visa by the applicants had been reviewed.
Ms Chen remained the authorised recipient of all correspondence to the applicants and also appeared at the Tribunal hearing. Ms Chen made submissions at the hearing and subsequently contacted the presiding member requesting an opportunity to make post-hearing submissions. Again, there is no particularisation of the applicants’ claim about the misunderstanding regarding the original visitor’s visa or any such evidence before the Court. I find it difficult to accept that the agent who had been representing the applicants since the time they filed their original visa application, did not explain to them the nature of their visa application, or the restrictions placed on it. Nor is there any explanation why the applicants proceeded with a Protection (Class XA) visa application if they remained ignorant of the limitations on their original visa obtained in China by their church group. I reject this claim.
Ms Johnson, in her written submissions, addresses the issue of the applicants’ amended application filed on 4 August 2005. Although the amended application is vague and unparticularised, it appears to take issue with the weight the Tribunal gave to the evidence before it. I accept Ms Johnson’s submission that the weight to be given to the evidence is a matter for the Tribunal: Minister for Immigration v Indatissa [2001] FCA 181. No error is disclosed.
In respect of the issues that arise on the pleadings, I am satisfied that there has been no jurisdictional error on the part of the Tribunal. However, I believe it necessary to consider the recent decisions in SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2, which have an impact on this decision.
In the Tribunal decision under the heading ‘Claims and Evidence’ there is a subheading ‘DIMIA File’, which contains the following comments (CB 84):
In a statement that accompanied the primary application, the Applicant claimed that he is a Christian who was involved in an underground church in China. He claimed that if we were to go back to China he would be arrested and imprisoned. He also claimed that he would be persecuted by the Chinese authorities represented at various levels of the leadership in his district. When asked why he thinks this will happen if he returned to China, he responded by writing that it is because his underground church was ransacked and some members were arrested and detained by the authorities. He also claimed that he would most certainly not be protected but would rather be persecuted if he returned to China.
Attached to the applicants’ review application to the Tribunal there is a statement which contains this material. (CB 58 to 59) There is also a certification from the True Jesus Church Fuqing Chengguan Church, which certifies that the applicant and his wife are members of that church and had raised money to establish it. It also states they had been detained for six months by the Public Security Bureau and investigations continue into which parties were responsible for establishing the church privately. The Tribunal review application also contains translated documents from the Fuqing Municipal Public Security Bureau, a witness statement from a Brother of the church giving details of the collection of donations, building of the illegal structure and the persecution of the applicant husband through his involvement. I am satisfied that the material before the delegate was resubmitted by the applicants and their agent to the Tribunal. The Court Book does not supply details of the original statement submitted with the visa application and it is not possible to determine whether the statement attached to the application for the Tribunal is the same as that submitted. However, the contents that appear in that statement cover all the issues raised by the Tribunal member when discussing the Department file.
In the Tribunal decision under the ‘Findings and Reasons’ there is no direct reference to the Department file. Neither is there material that cannot be identified as being made available to the Tribunal, by oral or written submissions submitted to it during nor post the rescheduled hearing. I am satisfied that s.424A, SAAP v Minister for Immigration and SZEEU v Minister for Immigration obligations have been complied with.
Conclusion
The applicants appear before me as self-represented litigants and that places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. In order to fulfil that obligation, I have reviewed the contents of the Court Book and the Tribunal decision. I have also considered the oral submissions made by the applicants from the bar table. I am satisfied that none of the grounds pleaded by the applicants can be sustained. Neither is it apparent that any other ground of review exists which suggests the Tribunal has made a jurisdictional error in its decision to reject the applicants’ application for a protection visa. The applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 5 May 2006
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