SZHDM v Minister for Immigration

Case •

[2005] FMCA 1823

•

29 November 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDM v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1823
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of People’s Republic of China claiming a fear of persecution for religious reasons – claim of membership of Shouters underground church – one child policy – credibility – where applicant did not argue concerns about one child policy before RRT – no reviewable error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss. 424, 424A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94
VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 277
NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547
SBBS v the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361

Applicant: SZHDM
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 2630 of 2005
Delivered on: 29 November 2005
Delivered at: Sydney
Hearing date: 29 November 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Potts
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.

  3. I allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2630 of 2005

SZHDM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for a review of the decision of the Refugee Review Tribunal. The decision was made on 25th July 2005, after a hearing that took place on 22nd July. The Refugee Review Tribunal handed down its decision on 16th August 2005.

  2. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, made on 4th March 2005, not to grant a protection (class XA) visa to the Applicant.

Background

  1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 6th November 2004. On 20th November 2004, he applied for a protection visa, which was subsequently refused.

  2. In a statutory declaration attached to his application for a protection visa, the Applicant claimed that he had left China because he feared persecution:

    a)because of his religious beliefs and

    b)because he and his wife had breached the one child policy by having four children. 

  3. The Applicant claimed that he used to run a chicken farm with the aid of a relative who he called Uncle Wu.  Uncle Wu not only helped him with the farm, he also taught him about Christianity, as he was a key member in the “Shouters” underground Church. The Shouters have been regarded as an illegal and anti-government religious organisation by the Chinese government.  

  4. The Applicant said that his wife became pregnant for the second time in 1997, and Uncle Wu persuaded them not to have an abortion. He arranged for the Applicant's wife to stay in his village until the child was born. Wu's sister then looked after the baby. Uncle Wu came under notice by the Public Security Bureau, who arrested him and searched his home.  The PSB found the child and discovered that the Applicant was the father. The applicant states that he was forced to pay a penalty of 15,000 yuan. 

  5. The Applicant's wife was to undergo a forced sterilisation operation, but the Applicant states that he bribed the doctor to avoid the operation. 

  6. Uncle Wu was sentenced to three years imprisonment in 1999 for his religious activities. The Applicant described how his life took a different turn as his wife became pregnant again in late 2001. He arranged to move his wife and the new baby to another village.  The authorities found out, but the Applicant arranged for his wife and child to go into hiding.

  7. The Applicant claims that he was arrested and detained by the PSB during June and July 2002, because he would not disclose his wife's whereabouts.  At the end of July he was released. 

  8. The Applicant said that his wife remained in hiding and he only saw her every three or four months.  Nevertheless, she became pregnant yet again. Uncle Wu suggested that the Applicant should go overseas to avoid trouble from the authorities.

  9. The Applicant did so, and claimed that he later heard that Uncle Wu and more than 10 members of the Shouters had been arrested in December 2004.  He stated that the PSB obtained confessions from some of the people they arrested, which identified him as a key figure in the Shouters Church.

  10. The Applicant claimed a well-founded fear of persecution for those reasons. 

The Tribunal’s Decision

  1. The Applicant gave evidence at a hearing of the Tribunal on 22nd July 2005. The Tribunal noted at Court Book page 73 that the Applicant did not pursue his claims about having breached the one child policy, referring only to his claims about persecution based on his religion. The Applicant maintained that position when he appeared before the Tribunal. 

  2. The Tribunal found that the Applicant did not have a genuine fear of persecution in China for reasons of his religion.  The Tribunal based that finding on the fact that the Applicant appeared to have little knowledge of Christianity, and also appeared to have little knowledge about the Shouters underground Church. The Tribunal concluded that the Applicant's claims had been fabricated by someone else on his behalf. 

  3. The Tribunal took the view that the Applicant's statement at the hearing, to the effect that he came to Australia to earn money for his family, outlines the main reason for his journey to Australia. 

  4. The Tribunal was not satisfied that the Applicant faced a persecution as a result of having four children, in breach of the one child policy.  The Tribunal noted that whilst the Applicant produced photographs of a woman with three children, he had no evidence to show his relationship with any of them, such as a photograph had showed him with any of them. 

  5. The Tribunal also noted the Applicant's evidence that his wife had returned to the family home and had been living there for more than two years.  From the age of the child, the Tribunal concluded that the child was born whilst the wife was living in the family home, so her whereabouts would be known to the authorities.

  6. The Tribunal stated that the Applicant had not claimed that any harm he feared would be different to anything faced by any other Chinese parent who had violated the provisions of the one child policy. Accordingly, the Tribunal found that even if it were satisfied that the Applicant was the father of four children, any disadvantages that he might face as a result would not be for a convention reason.

  7. The Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa.

The Applicant’s Applications

  1. The Applicant filed his application for judicial review on 19th September 2005 and his Amended Application on 21st November 2005. In the Amended application, the Applicant seeks:

    a)a declaration that the decision of the Refugee Review Tribunal was made in excess of jurisdiction and is therefore null and void;

    b)an order of prohibition against the Respondent Minister; and

    c)a writ of certiorari quashing the decision of the Tribunal.

  2. The Applicant relies on two grounds:

    a)error of law constituting jurisdictional error; and

    b)procedural error constituting an absence of natural justice. 

  3. The Applicant provides these particulars of his claim:

    a)failure to comply with s.424A(1) of the Migration Act 1958;

    b)bias;

    c)failing to contact local Church members to obtain corroborating evidence;

    d)failure to rely on independent information about the underground Church and sufferings of the “one child” policy;

    e)failing to provide the opportunity to comment on the Tribunal's “opinions of bias” in rejecting the Applicant's claims that he has four children;

    f)failing to give the Applicant the chance to provide documentary evidence to support his claims;

    g)failing to “properly assess” that he would be subjected to persecution on return;

    h)failing to “properly assess” that his fear of persecution is based on his religious beliefs and his violation of the “one child policy”, and

    i)failing to “properly assess” that his fear of persecution must be well-founded, because it was supported by certain factual evidence.

Submissions

  1. The Applicant did not provide any Written Outline of Submissions to the Court.  He did, however, make oral submissions.  When asked from the Bench why he made a claim of bias about the Tribunal, he asserted a claim that the Tribunal had a strong bias towards his application.  He said that the Tribunal said that he had little knowledge of his religion, that he did not participate in the Shouters’ activities in China and that his oral evidence was inconsistent with his written statements.

  2. He went on to speak about sub-section 424(1) and his claim that independent country evidence had been used and was not told about it. He did say that he had provided certain documentary evidence and had handed that in to the Tribunal. He told the Court to the best of his knowledge Uncle Wu was still in China, and asked for a fair judgment.

  3. He brought with him submissions written in Chinese and sought to read those out. He was allowed to do that, although it became quite clear that he was not able to read that document, and the interpreter read it out for him.

  4. He went on to say that he had been deprived of the opportunity to give evidence, and the Tribunal had showed great bias towards him. 

  5. Mr Potts of counsel, for the Respondent, provided Written Submissions in answer to the Applicant's application and in fact his Amended Application.

  6. In respect of the Applicant's first, fourth and fifth grounds of apprehended or actual bias, he put to the Court that in each case, whilst complaining about bias the Applicant in fact complained about a number of adverse findings of fact.  He submitted that whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal. 

  7. He referred the Court to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at paragraph 10. He reminded the Court that it is not a jurisdictional error to make a wrong finding of fact. Refer to MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at paragraph 28.

  8. He went on to say that making adverse findings of fact would not leave any fair minded and informed bystander to suppose that the Tribunal might approach its task other than on its legal and factual merits.  It certainly would not lead to any finding of actual bias in the sense that the Tribunal approached its task with a closed mind.

  9. In respect of the sixth ground, as far as it alleges bias, Mr Potts pointed out that notwithstanding the fact that the Tribunal was not satisfied that the Applicant had four children, that the Tribunal did proceed to consider the claim on the basis that the Applicant did in fact have four children.  That, he submitted, was not indicative of bias.

  10. In respect of the second, third and sixth grounds about a breach of s.424A of the Migration Act, Mr Potts submitted that the second and third grounds do not in fact identify the information that the Applicant asserts was subject to s.424A.

  11. The sixth ground suggests that the Tribunal's failure to invite comments on the Tribunal's rejection of the Applicant's claim that he had four children was a breach of s.424A.

  12. In response to that Mr Potts submits that the Tribunal's conclusions about the four children did not comprise information. He submitted that no information which formed the reason or part of the reasons for the Tribunal's decision appears to have fallen within sub-section 424A (1), requiring written disclosure.

  13. In respect of the fourth ground relating to failure to investigate, Mr Potts points out that the ground comprised both the aspect of bias, which has been dealt with, and the claim that the Tribunal failed to directly contact pastors or other leaders in the local Church so as to get independent information in relation to the Applicant's practice and commitment to Christianity.

  14. Counsel pointed out that the Tribunal was under no obligation to do so.  It was not under any duty to investigate the Applicant's claims or any duty to consider utilising permissive statutory powers that it had which might enable to investigate, such as subsection 427(1) (d).  He referred to VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 459 at paragraph 727, WAGJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 277 at paragraphs 21, 24, 25, and a number of other cases.

  15. Relating to the fifth ground, which is failing to rely on the important independent country information, he submitted that it was not clear precisely what country information the Applicant was referring to, and whether that was material before the Tribunal or not.

  16. He quoted from the decision of the Full Court in NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 at paragraph 11, where their Honours said:

    By subsection 420 (2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By subsection 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on country information. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.

  17. In respect of the sixth ground, failing to give any chance to provide documentary evidence in support of the Applicant's claim, the Tribunal did determine the Applicant's claim on the basis that he did in fact have four children, even though it was not in fact satisfied that he did. 

  18. The seventh, eighth and ninth grounds he submitted were no more than challenges to the merits of the Tribunal's decision.  They related to factual findings and do not demonstrate any jurisdictional error.

  19. The tenth ground, relating to ignoring important facts and making erroneous findings. That, he submitted, does not identify important facts that he claims were ignored, and findings of fact for the Tribunal and an error of fact is not a jurisdictional error.

  20. The eleventh ground, which was the Tribunal never assessed the Applicant's application fairly and carefully, he submitted could not stand as the Tribunal plainly did attend to its task with some care, even though it decided adversely to the Applicant. 

  21. In short he submitted that the Tribunal's decision does not disclose any reviewable error.  The conclusions reached by the Tribunal on the facts were open to it on the material before it.  The rejection of the Applicant's credibility was based on the material before it. The findings on credibility of the functions of the primary decision-maker, paragraph excellence, citing Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407 at paragraph 67.

  22. So long as the Tribunal's credibility findings were open to it, no error is demonstrated in such conclusions. (See Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 at pages 558 to 559).

  23. The Applicant had nothing further to add. 

  24. In my view the main reason why the Tribunal did not grant the Applicant's application was that the Tribunal did not accept the Applicant's evidence on the two key points of his claim.  Credibility, as has been submitted, is a matter for the administrative decision-maker and is not a matter for a Court conducting judicial review.

  25. Turning to the claim of bias, there is no evidence to support a claim of bias. The Full Court of the Federal Court has made a number of comments about bias and bona fides in cases such as SBBS v the Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361, (2002) 194 ALR 749.

  26. As their Honours have said, an allegation of bad faith is a serious matter involving personal fault on the part of a decision-maker.  The allegation was not to be lightly made and must be clearly alleged and proved.

  27. The circumstances in which the Court will find an administrative decision-maker have not aced in good faith are rare and extreme.  This is especially so where all that the applicant relies upon is the written reasons for the decision that is under review.  And I refer to paragraphs 42 to 44 of their Honours decision in SBBS.

  28. There is no evidence of bias. 

  29. There is no requirement on the Tribunal to attempt to contact local Church members to obtain corroborating evidence of the Applicant's claim.  It was up to the applicant to provide corroborating evidence.  If he wished to bring witnesses he could have asked the Tribunal to hear witnesses, but he did not. 

  30. The claim of failure to rely on independent information about the underground Church in China and the sufferings under the one child policy is a claim that goes, to my mind, to the merits of the case.  In any event, I note that the Applicant did not pursue the claim about the one child policy, and the Tribunal was at pains to find out whether or not he was arguing that case, as well as his claims about persecution for religious reasons.

  31. The Applicant told the Tribunal that he was not making a claim on the basis of the one child policy. In any event, the Tribunal did give consideration to his claim on that basis, and rejected it.

  32. There is no substance to the Applicant's complaint that the Tribunal failed to provide him the opportunity to comment on the Tribunal's alleged opinions of bias in rejecting his claims that he has four children.

  33. The Tribunal was sceptical about the Applicant's evidence but did assess his claim on that basis.  The Tribunal did not fail to give the Applicant a chance to provide documentary evidence to support his claims.  The Applicant submitted documentary evidence in the form of a statement and the Tribunal referred to it in the decision.

  34. The grounds of failure to "properly assess" a variety of issues are no more than a request for merits review.  The Court conducting judicial review does not undertake a challenge of the factual findings and it certainly does not substitute the factual findings of the administrative decision-maker of its own findings.

  35. As I said, the main reason why the Tribunal did not accept the Applicant's claim was because they did not accept his evidence - it did not accept his evidence on the vital points of his claim.

  36. There is no reviewable error.  I read this matter through quiet carefully, not only today but also before the hearing started.  I have read the Tribunal's decision thoroughly, and I am unable to discern any jurisdictional error that the Applicant may not have discovered.  I am satisfied that there is none. 

  37. In my view the decision of the Tribunal is a privative clause decision. The decision enjoys the protection of s.474 of the Migration Act. The application will be dismissed.

  1. There is an application for costs. Counsel for the Respondent Minister seeks an order for party and party costs in the amount of $4,500.00.   The Applicant is of a view that $500.00 would be a fair amount. 

  2. The Applicant has been unsuccessful in his claim, and costs usually follow the event in this jurisdiction.  That means that the unsuccessful party can expect to pay a contribution to, if not all of, the costs of the party who is successful. 

  3. I am afraid that the Applicant's assessment of costs in this jurisdiction is significantly below the scale and it may well be that he does not understand the amount of work that has to be done before lawyers actually get to Court on the final hearing.

  4. In my view the amount sought is within the range set out in Schedule 1 of the Federal Magistrate Court Rules 2001.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  8 December 2005

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