SZHAK v Minister for Immigration - [2007] FMCA 645

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHAK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 645

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.91X, 424A, 483A

Abebe v The Commonwealth (1999) 197 CLR 510
NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1
SZBEL v Minister for Immigration (2006) 231 ALR 592

Applicant:

SZHAK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2371 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

4 April 2007

Delivered at:

Sydney

Delivered on:

1 May 2007

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

Ms Sirtes

Solicitors for the Respondents:

Ms G Broderick of Clayton Utz

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 25 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

SYG2371 of 2005

SZHAK

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 25 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 10 August 2005. A letter was forwarded to the applicant on 11 August 2005 affirming a decision of the delegate of the first respondent made on 24 May 1999, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs 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 “SZHAK”.
The solicitors for the respondents filed a Court Book (“CB”) on 11 October 2005. I have marked this as “Exhibit A” in these proceedings.

Background

The decision of Tribunal member, J Silva, reference N05/51556, provides the following background information:
The Applicant, who claims to be a citizen of the People’s Republic of China (PRC or China), arrived in Australia on 17 March 1999. On 6 May 1999, he 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 24 May 1999, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 20 June 2005, the Applicant was notified under section 66 of the Act, and on 26 June 200t, the Applicant applied for review of that decision.(CB 62)

The applicant’s claims

Attached to the applicant’s protection visa application is a personal statement setting out his claims. However, when he was detained on 10 June 2005, it became apparent that there was some doubt that he had been formally notified of the delegate’s decision, so on 20 June 2005, he was provided a copy of the decision made on 24 May 1999. The applicant then lodged a review application, which was received by the Department on 26 June 2005 and he was invited to attend a hearing of the Tribunal on 28 July 2005. At the outset of that hearing, the applicant advised the Tribunal that his protection visa application of May 1999 did not represent his refugee claims. He said that the migration agent who had assisted him put forth claims that did not reflect his instructions. The Tribunal member set out the new claims as follows:
The Applicant said that the real reason he had left China was because of religious persecution, directed towards him by the government because he was a Christian. He had also suffered harm in the past because of the implementation of the one-child policy, and he had become Christian in the period after that experience. His sole claim for refugee status was his fear of prospective persecution as a Christian.
Regarding his identity, the Applicant said that his real name was [SZHAK], the name which appears on his PRC identity card. He travelled to Australia on a passport issued in the name of Chen Lang. This was the name he used in Australia, because he had to rely on his fake passport to conduct transactions (such as opening a bank account).(CB 67)
The Tribunal asked about the Applicant’s fear of persecution. He said that he was a member of a Chinese underground church. The Tribunal asked for details of which church. The Applicant said it did not have a name; it was simply the local one.
Regarding his claimed persecutory experiences, the Applicant said that his interest in the church arose out of his experience with family planning policy. Around April 1994, just after his wife had given birth to their second child, they were called in and pressed upon for her to be sterilised. The Applicant said (later in the hearing, but not initially) that he was detained around this period for one week.
After joining the church, the Applicant was arrested on a number of occasions in the following years. He was first arrested in July 1994 for one day (he later changed this to 1997); for one week around January 1998 and for almost a month in November 1998. It was this last occasion which led him to flee China.(CB 68-69)

Tribunal’s findings and reasons

A summary of the Tribunal’s reasons is contained in the first respondent’s written submissions prepared by Ms Sirtes and I adopt paragraph 6 of those submissions for the purposes of this judgment:
6. The Tribunal:
(a)   was not satisfied that the applicant’s use of a passport in another person’s name(a claim the Tribunal found as plausible (CB 71.1)) demonstrated that he had been unable to obtain genuine travel documents in his own name because of any adverse attention from the Chinese authorities (CB 71.4);
(b)   did not draw any adverse conclusion from the omission of the applicant’s religion claims from his protection visa application or from any discrepancies between the applicant’s ozig4nal and substituted claims (CB 72.1);
(c)   found the applicant’s presentation of his claim of religious persecution to be “wholly unconvincing” (CB 72.2) and noted that its attempts to elicit information from the applicant resulted in very little detail about his claims. The applicant was mainly “nonchalant and defensive in his oral evidence”(CB 72.3);
(d)   was not satisfied that the applicant’s lack of formal education explained his lack of familiarity with Christianity (CB 72.5) and found the information he gave to be “limited and rehearsed” (CB 72.6);
(e) found the applicant’s evidence regarding his practice of Christianity in Australia to be evasive and did not accept that the applicant would not have been able to provide more detail about his involvement with, and commitment to, the Christian faith whilst in Australia. This was so particularly given that he had been in Australia for 6 years, during which time he had successfully navigated other aspects of day to day life (CB 73.2 to 73.6);
(f)    was not satisfied that, based on the combination of the applicant’s limited knowledge of Christianity and lack of religious practice in both China and in Australia, the applicant is, or was, a Christian or would be perceived to be a Christian by the Chinese authorities or anyone else (CB 73.7). The Tribunal also found the applicant not to be a credible witness (CB 73.8); and
(g)   concluded that the applicant was not a person with a well-founded fear of Convention related persecution for reasons of his religion, imputed/political opinion or any other reason (CB 74.5).

Application for review of the Tribunal’s decision

On 25 August 2005, the applicant filed an application for judicial review under s.39B of the Judiciary Act. In accordance with orders made at the first Court date on 21 September 2005, the applicant filed an amended application dated 28 November 2005 which contained the following ground:
1. The Tribunal constructively failed to exercise its jurisdiction in accordance with the Migration Act 1958 by not considering the Applicant’s claims to fear of persecution by reason of PSB spies infiltrating Australia and informing PSB in China of my religious belief.
a. While acknowledging the Applicant is a recent adheret to religious belief the Tribunal nevertheless unreasonably reject the applicant’s claim based on a disproportional interrogation of my religion.
b. The Tribunal committed a jurisdiction error of law by failing to apprectial that in some circumance persecution may include transgressions on the freedom traditionally associated with democratic including economic discrimination.(copied without correction or amendment)

Submissions and reasons

The applicant is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. At the first Court date he stated that he wished to participate in the Court sponsored Legal Advice Scheme and was subsequently allocated a panel adviser. He also filed an outline of submissions prior to the hearing. At the hearing, he indicated that he would rely on those submissions and did not wish to make any substantive oral submissions in support of his application.
The applicant’s written submissions repeats the ground which appears in his amended application. It also states that the Tribunal did not give him written notice that it was going to use information in the Public Security Bureau (PSB) documents against him. It then goes on to repeat particular (a) and a slightly modified particular (b).
The written submissions then introduces an apparent new ground of review: that the Tribunal failed to comply with s.424A(1) of the Act by not giving the applicant a chance, after the hearing, to comment in writing on information relevant to a potentially adverse decision. It is claimed that the exceptions in s.424A(3) do not apply to the material the Tribunal consulted, which led to jurisdictional error.
A further new ground was introduced by the submissions, claiming that the Tribunal did not determine the applicant’s claim of persecution as a member of a particular social group, being an underground Christian church.
Ms Sirtes, appearing for the respondents, provided written submissions addressing the ground of review in the applicant’s amended application. Ms Sirtes then made oral submissions in respect of the new grounds raised by the applicant’s written submissions.
In respect of the ground of a constructive failure to exercise jurisdiction, Ms Sirtes submits that the Tribunal did not constructively fail to deal with any aspect of the applicant’s claims. It is further submitted that such a claim could not arise from the material before the Tribunal, let alone “squarely arise” in the manner contemplated in NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at [63] per Black CJ, French and Selway JJ:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error…
The applicant’s claims in respect of Christianity were first raised at the Tribunal hearing. The applicant said to the Tribunal that these were new claims due to a failure on the part of his migration agent. The claims were not recorded in any documents tendered by the applicant and only appear in the Tribunal decision. A fair reading of the Tribunal decision does not make any reference to “PSB spies” or any other individuals that had infiltrated the church in Australia with a view to providing information about him to the Chinese authorities, as implied by the applicant. There is no other material, such as a transcript of the proceedings, that provides support for this claim. I agree with the submissions made by Ms Sirtes that this ground is without basis and should be dismissed.
In respect of particular (a) of the ground, Ms Sirtes submits that it is difficult to understand what the applicant means by “disproportional interrogation” of his religion. Ms Sirtes referred to SZBEL v Minister for Immigration (2006) 231 ALR 592 at [40] per Gleeson CJ, Kirby, Hayne, Callinan and Hayden JJ:
More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made…
The High Court referred to Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] where it stated that it is for the applicant to put his case and the Tribunal to decide whether it is made out. In the matter before this Court, the applicant made refugee claims entirely on religious persecution and the Tribunal rejected that sole claim. Ms Sirtes submits that to allege that the Tribunal gave “disproportional” consideration to the applicant’s religion fundamentally misunderstands the Tribunal’s task.
As indicated above, the claims with respect to Christianity were raised for the first time by the applicant during the Tribunal hearing. The Tribunal decision records the aspects of the applicant’s claim which applied when he was in China. It then asked a series of questions about his adherence to Christianity from his arrival in Australia to the Tribunal hearing date. The Tribunal clearly indicated that there were certain aspects of this claim (relating to the period of time that the applicant has been in Australia) that it was not satisfied with and required further explanation.(CB 73) I accept the submission of Ms Sirtes that the Tribunal was acting appropriately and within the criteria as set down by the High Court in Abebe and SZBEL, and there was no error on the part of the Tribunal. This ground cannot be sustained.
Ms Sirtes submits that particular (c) seeks merits review under the guise of alleging the Tribunal misunderstood the meaning of persecution. She submits that the Tribunal’s ultimate conclusion was that the applicant was not a person to whom Australia owed protection obligations, which is not a misapplication of the law, or gives rise to jurisdictional error. I accept Ms Sirtes’ submissions in respect of particular (c) and agree that this ground cannot be sustained.
One new ground raised by the applicant’s written submissions refers to an alleged breach of s.424A(1) of the Act. This ground is not particularised, nor is it apparent that any material in the Tribunal decision falls within this provision. I accept Ms Sirtes’ oral submission in respect of this new ground and find that this ground cannot be sustained.
The last ground raised by the applicant’s written submissions is a claim of membership of a particular social group. The applicant’s definition of this particular social group is confined to his family and their claim of persecution by virtue of membership of an underground Christian church. The claim does not appear to define the particular social group as the underground church generally. The issue of precisely what particular social group the applicant claims to be a member of, was considered by the Tribunal:
All of the above factors, combined – the Applicant’s knowledge, religious practice in China and religious practice in Australia – leave the Tribunal unsatisfied that the Applicant is a Christian, or will be perceived as one by the PRC authorities or anyone else. The Tribunal concluded that the Applicant is a witness of low credibility. It is also not satisfied that the Applicant has suffered harm, let alone persecution, for reasons of his now-rejected Christianity or for any other reason.(CB 73)
Given this broader finding that the Tribunal did not accept that the applicant fell within any Christian group, his family constituting a particular social group does not support this ground of review. I am satisfied that this ground cannot be sustained.

Conclusion

The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. I am satisfied that he was given an opportunity to receive independent legal advice under the Court-sponsored scheme and was able to file an amended application supported by written submissions. However, it was apparent that he had little comprehension of the nature of these proceedings. It was also apparent that whoever assisted in the preparation of those documents possessed limited knowledge, but ultimately did not understand the nature of the applicant’s claims.

Ms Sirtes assisted the Court with written submissions which were supplemented by oral submissions. I am satisfied that no ground of review in either the applicant’s amended application or written submissions exists. Also, no other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the applicant’s claims 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-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 1 May 2007