SZHCW v Minister for Immigration - [2007] FMCA 151

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHCW v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 151

MIGRATION − Review of RRT decision − where the Tribunal questioned the applicant about his religious beliefs − whether in doing so the Tribunal erred by taking on a role of arbiter of doctrine − whether the Tribunal’s conclusions were open to it upon the facts − whether the applicant received a copy of the court book of evidence − whether the Tribunal failed to take into account relevant materials and information before it − whether the decision of the Tribunal evidences bias.

Migration Act 1958

WALT v Minister for Immigration [2007] FCAFC 2
Re Minister for Immigration: ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
A165 of 2003 v Minister for Immigration [2002] FCA 877
Seyfarth v Minister for Immigration [2004] FCA 1713
Dranichnikov v Minister for Immigration [2003] 197 ALR 389
SZAGT v Minister for Immigration [2004] FCA 1595

Applicant:

SZHCW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2594 of 2005

Judgment of:

Raphael FM

Hearing date:

8 February 2007

Date of last submission:

8 February 2007

Delivered at:

Sydney

Delivered on:

8 February 2007

REPRESENTATION

Applicant in Person

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5000.00.
The name of the First Respondent shall be changed to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2594 of 2005

SZHCW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 9 September 2004. On 8 October 2004 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 10 March 2005 the delegate of the Minister refused to grant a protection visa and on 7 April 2005 the applicant applied for review of that decision. The Tribunal wrote to the applicant offering him the opportunity of an interview which the applicant accepted. The applicant attended before the Tribunal on 12 July 2005. On 29 July 2005 the Tribunal determined to affirm the decision under review and handed that decision down on 18 August 2005.
The applicant’s ground for claiming that he was a person to whom Australia owed protection obligations under the Refugee Convention and Refugee Protocol was that he was liable to suffer religious persecution in his homeland as a result of him being a member of an underground Christian church. Full particulars of his grounds are contained in a statement found at [CB25]-[28].
In short he alleges that he came from a Christian family and in 1991 commenced worshipping in the underground church and being subject to religious training. The applicant named one of the leaders of the church who sought legal registration between 1990 and 1995 but that registration was refused. It appears that the applicant, at the request of the elders of the church, assisted in the establishment of a commercial enterprise for the benefit of the church. This caused him to come into contact with the PSB.
On 7 August 2004 he was copying and binding some bibles provided from Hong Kong. He was asked urgently to go and deliver these bibles and whilst he was away from the farm a raid took place; about six people were arrested. The applicant claimed that the police were looking for him and if they had found him he would have been taken into custody.
At the hearing before the Tribunal the member sought to obtain from the applicant some details as to his religious beliefs and observances. The questioning that took place and which the Tribunal has described at [CB75]‑[78], does not seem to me to suggest that the Tribunal was taking on the role of arbiter of doctrine: WALT v Minister for Immigration [2007] FCAFC 2. It was merely a questioning of the applicant about his beliefs on matters “which that particular religion teaches or its tenets”: WALT (supra) at [29].
The Tribunal found the applicant’s responses to its questions concerning his activities in China to be vague, ambiguous and generalised. These are findings upon the evidence provided by the applicant which constitute the essential duty of the Tribunal. It is not the job of this Court to interfere or substitute its own views for those of the Tribunal which is the sole arbiter of fact in these matters: Re Minister for Immigration: ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272]. There is no jurisdictional error in a Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137].
The Tribunal gave its reasons for coming to the conclusion that it did about the applicant’s evidence and those reasons indicate that the conclusions which it came to were reasonably open to it upon the facts. For example, the applicant sought to persuade the Tribunal of his attachment to the Christian church by the production of a document purportedly signed by the pastor of the Padstow Chinese Congregational Church. That document, which was not on letterhead, merely says:
“This is to certain [sic] that Mr Applicant attends Sunday worship from 26 September 2004 til [sic] now.”
Even if those words were accepted as truthful and coming from the pastor, they give no indication of the applicant’s religious commitment. The Tribunal concluded that the applicant did not belong to or participate in an underground Chinese church and therefore could not have come to the attention of the authorities as he indicated. The Tribunal also discounted the applicant’s claim that he had arrived in this country on a false passport for reasons which are set out at [CB79] and were certainly open to the Tribunal on the facts as disclosed.
The applicant claimed that he did not receive a copy of the green book. I did not ask him to go into the witness box but he did respond to questions from the bar table. I note that on 13 October 2005 the applicant attended a directions hearing before a registrar of this Court at which time an order was made that the green book be filed by 3 November 2005. There were tendered copies of two letters, one dated 2 November 2005 addressed to the applicant and one dated 1 December 2005 addressed to the applicant’s Minister’s scheme lawyer enclosing copies of the green book.
On 10 February 2006 the applicant attended a further callover of this matter before the same registrar. He does not appear to have made any comment at that time about the non-appearance of the green book which had been promised some months beforehand. The case was then set down for hearing a year in advance and in none of the months that have since passed has he suggested to those acting for the Minister that the green book was still missing.
I am unable to accept that the applicant did not have a copy of the green book, particularly as he filed on 12 January 2006 an amended application which gives quotations from the Tribunal’s decision which is reproduced in the green book, although, of course, I understand that the applicant may have received the decision alone. The amended application alleges a number of errors of law which constitute jurisdictional errors. The first is that the Tribunal failed to consider his claim properly. This is divided into three subparagraphs. Subparagraph (a) relates to the Tribunal making a wrong finding concerning the vague, ambiguous and generalised nature of the applicant’s evidence. This is particularised in subparagraph (b) suggesting that the views were solely based upon the applicant’s responses to questions about the church structure in China. The applicant also suggested that the Tribunal ignored his responses to those questions. A reading of the whole of the particulars reveals them to be no more than a disagreement with the Tribunal’s fact-finding. That, of course, does not constitute a matter that this Court can take into account as a jurisdictional error.
The next matter referred to by the applicant was that the Tribunal ignored relevant information and materials that were before it. The applicant sets out certain independent country information and then proceeds to rehearse the argument which was made in the earlier submission, that his answers to the Tribunal were perfectly reasonable and full, given that there were only two types of church in China. It is, of course, possible that the question and answer session between the Tribunal and the applicant was misunderstood by both of them but on [CB76] there is a description of some other questions asked by the Tribunal concerning the applicant’s knowledge of Christianity which tend to indicate his views were somewhat rudimentary. This may well also have influenced the Tribunal in coming to the conclusions which it did concerning the applicant’s commitment to the religion he espoused.
The third matter raised by the applicant was that the Tribunal made a mistake in relation to an important finding of fact. He alleged that he was actually a major activist at the Padstow Chinese Congregational Church. He suggests that the Tribunal could have found that out by making enquiries of the church. As Healy J said in Seyfarth v Minister for Immigration [2004] FCA 1713 at [95]:
“There is no general duty on a decision-maker “to prompt and stimulate an elaboration which the applicant chooses not to embark upon”: Re Minister for Immigration and Multicultural Affairs ex part Applicant S154/2002 (2003) 201 ALR 437 at 451 (Gummow and Hayden JJ). There is no general obligation on the Minister to make his own inquiries particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the Minister: Lorenzo v Minister for Immigration [2004] FCA 435 at 45,51 (Hill J)...”
The applicant has an obligation to advance his own case: Dranichnikov v Minister for Immigration [2003] 197 ALR 389 per Kirby J at [78]; Abebe v Commonwealth of Australia (supra); SZAGT v Minister for Immigration [2004] FCA 1595 at [36].
Finally the applicant argues that the Tribunal failed to give him an opportunity to comment on the matter. He does not actually tell us what matter it is that he was not giving an opportunity to comment upon. Mr Reilly, who appears for the Minister, suggests that this might represent a request for a copy of preliminary findings prior to the Tribunal’s decision being handed down. But that has never been an obligation of the Tribunal.
Before me the applicant made some suggestion that the Tribunal was biased. In applicant A165 of 2003 v Minister for Immigration [2002] FCA 877, Lander J said at [59]:
“Actual bias is not easily proved. It requires proof that the decision-maker was biased and that the decision-maker approached his or her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision maker, the decision‑maker’s pre-determined decision would not vary.”
The applicant has provided no particulars of this alleged bias which would allow the Court to make the assessment that Lander J indicates is required.
In all the circumstances, I am unable to see that the Tribunal made a jurisdictional error in the way in which it came to its decision in this case. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,000. The name of the first respondent be amended to “Minister for Immigration and Citizenship.”

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: