SZHAB v Minister for Immigration - [2007] FMCA 693

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHAB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 693

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 91X, 424A , 425, 483A

Applicants S1527 of 2003 v Minister for Immigration [2005] FMCA 1846
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration; Ex parte Durairajasingham (2002) 168 ALR 407
SZAYW v Minister for Immigration [2006] HCA 49
SXFB v Minister for Immigration [2005] FCAFC 164

Applicant:

SZHAB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2326 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

17 April 2007

Delivered at:

Sydney

Delivered on:

11 May 2007

REPRESENTATION

Advocate for the Applicant:

Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents:

Ms A Nanson of Australian Government Solicitor

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 23 August 2005 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

SYG2326 of 2005

SZHAB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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 23 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 29 June 2005 and handed down on

19 July 2005, affirming a decision of the delegate of the first respondent made on 3 February 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHAB”.
A Court Book ("CB") prepared by the first respondent’s solicitors was filed on 6 September 2005 and marked Exhibit "A". It was read into evidence.

Background

The Tribunal decision of Dr I O’Connell, reference N05/50728, provides the following background information:
The Applicant, who claims to be a citizen of The People’s Republic of China arrived in Australia on 3 August 2004. On 16 September 2004 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 3 February 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 8 March 2005 the Applicant applied for review of that decision.(CB 74)
The applicant’s claims are summarised in written submissions prepared by Ms Nanson, solicitor for the first respondent, and I adopt paragraphs 6 to 8 of those submissions:
6.The applicant’s claims are set out in a statement which accompanied her application for a protection visa and as summarised in the Tribunal’s decision. In essence the applicant claims to be a member of the Shouters sect and that she was subject to surveillance and detention. She claimed should she return to China she would not be able to practice her religion freely and that she feared further harm from Chinese authorities.
7.With her application for review to the Tribunal, the applicant provided a copy of the delegate’s decision and expressed dissatisfaction with the delegate’s use of independent country information and the delegate’s apparent lack of knowledge about the “Shouters” and Chinese authority. The applicant claimed she believed her claims had “never ever” been carefully assessed by the delegate.
8.The applicant attended a hearing before the Tribunal on 10 June 2005. Before the Tribunal, the applicant tendered a letter (with no letterhead), dated 5 June 2005, signed by two persons confirming that the applicant “often attends our church meeting in Blacktown on Sunday mornings.”
The submissions also provided a convenient summary of the Tribunal’s findings and I adopt paragraphs 9 to 15:
9.The Tribunal did not accept the applicant’s claim to be credible.
10.The Tribunal did not accept the applicant was a member of the Shouters sect because she was unable to provide any relevant detail about that sect consistent with her claimed long term involvement.
11.The Tribunal also noted the applicant displayed only limited knowledge of the Bible which was inconsistent with her claim to have read the Bible on a regular and longstanding basis.
12.The Tribunal accepted the applicant was a kindergarten teacher, but, for the reasons set out above, did not accept she was involved in setting up a kindergarten under the umbrella of the sect or that she preached the gospel to schoolchildren.
13.On the basis of evidence given by the applicant to it, the Tribunal did not accept that she had suffered harm from Chinese authorities prior to her arrival in Australia. The Tribunal found the evidence given by the applicant to it in relation to this issue to be “vague, shallow, script like and lifeless”.
14.Accordingly, the Tribunal did not accept the applicant would face harm from the authorities should she return, nothing that the applicant only claimed she would be kept under surveillance. The Tribunal saw no reason to find that the applicant would be subject to anything other than surveillance which was normally applied to all Chinese citizens generally.
15.With regard to the letter produced by the applicant in support of her claimed practised religion, the Tribunal considered the letter to be “vague in the extreme” containing no letterhead or relevant detail. The Tribunal also noted the applicant could not provide any pertinent details about the church she claimed to attend (such as its name) and, for these reasons, found itself unconvinced as to the genuineness of the applicant’s claimed religious convictions.

Application for review of the Tribunal’s decision

On 23 August 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 6 December 2005, which was complied with. She filed an amended application with the following grounds:
12.There was an error of law in the Tribunal’s decision constituting a jurisdictional error
13.There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars-
14. The Tribunal failed to assess my application properly, and particularly the Tribunal failed to consider important issue, such as the term “well-founded fear of persecution which is affected by the provisions of section 91 R of the Migration Act.
15. As a matter of fact, I have been subjected to a threat to my life and liberty; significant physical harassment; significant physical ill-treatment’, significant economic hardship that threatens my capacity to subsist; denial of access to basic services, where the denial threatens my capacity to subsist; denial of capacity to earn a livelihood of any kind, and so on.
16.The Tribunal has, apparently, failed to consider important independent country information, such as US Human Rights Report 2004 regarding to freedom of Religion in China.
17. The Tribunal has, absolutely, made erroneous findings and a big mistaken conclusion in a way that affects the exercise of the Tribunal’s power, because it has-:
•      Ignored important independent country information and important legal issue; and
•      incorrectly found major reason why I claimed to have a well-founded fear of being persecuted on my return.
18. The Tribunal’s decision is mainly relied on the basis of”...the Applicant level of knowledge of the Shouters sect inconsistent with her claimed long term involvement with the sect...”, because the Tribunal found that at the hearing the Applicant vas unable to provide   the Shouters sect over and above the general and fairly commonly known feature of the Shouters that the shout as she pray... “.
19. However, the Tribunal has ignored an important facts as follows:
·    I was pregnant before and during the hearing; and
·    The hearing was held at a particular time when I nearly gave a birth to my unborn baby (my baby was born shortly after the hearing); and
·    Especially, I was suffering from strong pregnant reaction during the hearing owing to huge mental and psychological pressure. As a result, I was unable to have normal thinking during the hearing. In most of time, I indeed felt that my brain was totally empty without anything; and 1 was unable to remember what had happened in the past, and even could not well understand the questions given by the Tribunal.
20. Based on the evidences above, the Tribunal has actually failed to comply with its obligations under s425 of the Act, because I have been denied to present my evidences and arguments during the hearing in a proper situation.
21. Moreover, the Tribunal has in fact failed to comply with its obligation under s424A of the Act. It is because that before the Tribunal made a finding about my poor knowledge about the Shouters sect, it should give me a chance to make my comment on the issue, and particularly it should give mean opportunity to explain the reason why I was unable to answer those questions in relation to the basic knowledge of the Shouter sect.
22. It was particularly unfair that the Tribunal doubted the letter from my church in Australia. it is true that the letter seems to be vague and extreme, having no letterhead or relevant detail. However, it indeed included the name of the pastor and his contact phone numbers. The Tribunal should take necessary step to verity the letter, such as contacting the writer of the letter before it made a finding. At least, the Tribunal should respect the church and respect the writer, and gave the church an opportunity to comment relevant issue arising from the letter. Unfortunately, the Tribunal did nothing, but just simply “look down upon” the church with its strong bias.
23. 1 have to say that the Tribunal has exceeded its powers and thus commits a jurisdictional error, because it has identified a wrong issue, ignores relevant important fact, made an erroneous finding and reached its conclusion in the way that affects the exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
24. In summary, I never ever believe that the Tribunal has assessed    my application fairly and carefully.(copied without correction or alteration)

Submissions and reasons

The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. In accordance with orders made at the directions hearing of 16 February 2006, the applicant filed written submissions. The submissions only address one of the grounds of the amended application, that is, the Tribunal’s failure to comply with s.424A of the Act. However, the particular, although differently expressed, sequenced and formatted, covers most of the issues referred to in the amended application. When the applicant was invited to make oral submissions, she focussed on the fact that she was pregnant at the time of the Tribunal hearing, which made it extremely difficult for her to give evidence. She stated that she gave birth shortly after the hearing (approximately one month), which inhibited her ability to adequately explain to the Tribunal the circumstances of her application because she was extremely anxious due to the impending birth of her child.
The applicant also made oral submissions in respect of s.425(1) of the Act. This issue also appears in the applicant’s written submissions and the amended application. The point that the applicant appeared to be arguing was that the Tribunal failed to allow her to give evidence or present arguments in relation to her application. This argument appears to have two limbs – that she was not in a suitable physical state to satisfactorily argue her position because of the advanced pregnancy, and that the Tribunal did not give her an opportunity to adequately explain her involvement in the Shouters religious movement. The applicant also complained that a friend was not given any legal status at the hearing. However, this argument is not easy to follow and the Tribunal hearing record indicates that the applicant attended the hearing alone.(CB 69) Although she was advised by Priscilla Yu of Priscilla International Co, the hearing record notes that the adviser was not in attendance. The only other person present at the hearing was the Mandarin interpreter.
The third issue raised by the applicant in oral submissions concerns the operation of s.424A of the Act. The applicant claims that she was not provided with the opportunity to respond to information, being a letter she provided during the Tribunal hearing which contains the following information:
TO WHOM IT MAY CONCERN
This letter is to confirm that [SZHAB] often attends our church meeting in Blacktown on Sunday mornings.(CB 68)
This letter, dated 5 June 2005, was signed by two individuals who included their names, addresses and telephone numbers. The document contains no information about the identity of the church group or the office held by the signatories.
Ms Nanson filed written submissions prior to the hearing which address the amended application. Ms Nanson also made oral submissions in response to the applicant’s oral submissions. As the issues addressed in the applicant’s amended application and written submissions are substantially the same, I will first consider the first respondent’s written submissions and then deal with the additional matters arising from the applicant’s written and oral submissions to the Court.
In the first group of particulars in which the applicant claims that the Tribunal failed to observe s.91R of the Act, the applicant identified the Tribunal’s failure to consider important country information. Ms Nanson submits that the decision discloses that the Tribunal was aware of the requirements of s.91R and that it did not accept her claims as credible based on the evidence before it. Ms Nanson submits that the findings made by the Tribunal were open to it on the evidence before it and that no jurisdictional error is disclosed in its reasons. I agree with Ms Nanson’s submissions because the Tribunal decision makes no specific reference to any independent country information, particularly any reference about the Shouters group. A fair reading of the decision indicates that the Tribunal performed its task appropriately. I refer to SZAYW v Minister for Immigration [2006] HCA 49 at [4] per Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ:
…The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The Tribunal investigates an applicant's claims in a process of administrative merits review of the delegate's decision.
It is quite apparent that the Tribunal member was familiar with the operations and religious observances of the Christian group known as the Shouters, a knowledge developed by previously considering similar applications. This has enabled the member to gain knowledge by a process of absorption. See Applicants S1527 of 2003 v Minister for Immigration [2005] FMCA 1846 at [25] per Smith FM:
…I am inclined to think that it may be open to a Tribunal member to rely upon and adopt summaries or assessments of country information prepared by research staff or other persons, provided that this was reasonable in the circumstances. Moreover, there are suggestions that the Refugee Tribunal may gain knowledge of general country information through a process of absorption and experience over its whole work (c.f. A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545 at 555, Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [32], and Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [263]).
The applicant also asserts that the Tribunal exceeded its powers thereby committing jurisdictional error. This assertion is made without any particularisation and I accept the submission of Ms Nanson that this particular of the general ground cannot be sustained.
In the second group of particulars, the applicant asserts that the Tribunal failed to comply with s.425 of the Act and referred to her pregnancy at the time of the hearing. Ms Nanson submits that the Tribunal’s decision discloses that the applicant said she feared for her child in China, whom she felt would be persecuted for the same religious reasons.(CB 82.8) However, it does not disclose that the applicant was unwell or unable to continue with the hearing for that reason. Nor is there medical certification to this effect or a transcript of the proceedings. This makes it impossible to determine whether the applicant was in any way inconvenienced at the time of the hearing. In the absence of any evidence in support of this ground, I agree with the submission of Ms Nanson that this ground cannot be sustained.
The third group of particulars of the amended application, and the applicant’s written submissions, focus on the Tribunal’s failure to comply with s.424A(1) of the Act. The applicant argued at the hearing that she did not believe that the material she referred to under this alleged breach fell under the exception in s.424A(3).
The first issue raised by the applicant under this ground was the Tribunal finding that her level of knowledge of the Shouters sect was inconsistent with her claimed long term involvement with that group. The applicant claims that this information should have been put to her in accordance with s.424A. Ms Nanson submits that the finding was based on the oral evidence given by the applicant at the hearing. Accordingly, this is information which falls within the exemption in 424A(3).
The second issue raised by the applicant under s.424A was that the Tribunal failed to put to her its doubts about the letter she provided to the Tribunal from her Blacktown church. The letter (which is briefly described at [10] above) was received at the hearing and stamped with that notation.(CB 68) However the Tribunal did raise the applicant’s attendance of church in Australia which prompted her to produce the letter in question.(CB 80) The applicant confirmed that it was a small church and she did not know its name. She could also not account for the fact that the letter did identify the religious group. Ms Nanson submits that the reasons disclose that the Tribunal member’s doubts about the applicant’s membership of the Shouters group were discussed with her at the hearing.(CB 80.6)
The applicant also asserts that the Tribunal failed to comply with s.424A by failing to put to her its finding that she had “poor knowledge” of the Shouters group. Ms Nanson submits that this ground is misconceived as the Tribunal is not required to put to the applicant its concerns arising from information provided her: s.424A(3)(b).
The applicant submits that the Tribunal was “unfair” in doubting the letter provided by her: [10] above. Also that the Tribunal should have made enquiries of those who signed the letter. Ms Nanson submits that the Tribunal is under no duty to make such enquiries: SXFB v Minister for Immigration [2005] FCAFC 164 at [8] per Finn, Emmett and Bennett JJ:
…It is well accepted this does not give rise as of course to any mandatory obligation: see Re Minister for Immigration and Multicultural Affairs; ex parte Cassim (2000) 175 ALR 209 at [13]. This claim is obviously misconceived even if the appellant had adequately identified intelligible subject matter for the investigations contemplated, which he did not.

The remaining issue raised under the s.424A ground, and also raised under the s.425 ground above, was that the Tribunal ignored the fact that the applicant was pregnant at the time of the hearing and “was unable to have normal thinking” during the hearing. This submission is not further particularised and does not appear to be relevant to those sections of the Act. I am satisfied that the issues regarding the applicant’s pregnancy have been satisfactorily addressed above at [14] above.
I am satisfied that the particulars raised in the amended application, oral and written submissions in respect of an alleged breach of s.424A do not arise. The issues raised arose during the Tribunal hearing and were fully discussed with the applicant then. They therefore clearly fall within the exemption in s.424A(3). The particular in relation to the is misconceived. It was not apparent to the Tribunal member that the applicant was suffering any stress during the hearing due to her pregnancy and the issue was not raised by the applicant. The concerns expressed by the applicant about her unborn child was that it face future problems because of her religious adherance, and nothing more.
Ms Nanson submits that the merits of a case, including the weight to be given to items of evidence, and the credibility to be attached to witnesses, are for the Tribunal to determine: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259. The Tribunal principally rejected the applicant’s claims by making credibility findings, which are findings of fact not of law. Such findings are strictly for the Tribunal’s determination: Re Minister for Immigration; Ex parte Durairajasingham (2002) 168 ALR 407. I agree with the submission made by Ms Nanson that the Tribunal’s findings were open to it for the reasons it gave and that no jurisdictional error has been disclosed.

Conclusion

I am satisfied that none of the grounds contained in the amended application, written or oral submissions can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 11 May 2007