SZHED v Minister for Immigration
[2006] FMCA 84
•19 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHED v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 84 |
| 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 China claiming a well founded fear of persecution for reason of religion – Shouters Underground Church – bias – credibility. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.474
Federal Magistrates Court Rules 2001 r. 13.03A
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421.
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 201 ALR 437
Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1968) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZFEG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1405
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 referred to
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
| Applicant: | SZHED |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2682 of 2005 |
| Delivered on: | 19 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 19 January 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs in the sum of $4,725.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2682 of 2005
| SZHED |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 2nd August 2005 after a hearing that took place on the 1st August 2005. The Refugee Review Tribunal handed down its decision on 23rd August 2005.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a Protection (Class XA) Visa to the Applicant.
Background
The Applicant is a citizen of the Peoples Republic of China. He arrived in Australia on 7th February 2005, left on 15th February and returned on the 25th February 2005. He applied for a Protection Visa on 8th March 2005 claiming to be a member of the underground religious group called The Shouters. He claimed to have been beaten by the police in mid 2004 and had to pay a large sum of money to secure his release from custody. He also claimed that the group was banned as a cult in 1996 and fears that he will face persecution if he returns to China.
The Minister's delegate refused his application for a visa on the 18th March 2005 so the Applicant applied to the Refugee Review Tribunal for a review of that decision on 21st April. He attended a hearing of the Tribunal on 1st August 2005.
The tribunal’s findings and reasons
The Tribunal was concerned about the Applicant's identity as he produced two passports in two different names. The Tribunal accepted that the Applicant did not arrive in Australia until the 25th February 2005 and that another person used his passport to arrive on the
7th February. The Tribunal was satisfied, at page 90 of the Court Book, that the Applicant had repeatedly lied to the Australian authorities about his true identity and did not accept his claim that he just did this because a friend told him to do so. The Tribunal was satisfied that the Applicant had not been truthful and was not a credible witness.
The Tribunal further found that this raised serious doubts about his other claims. The Tribunal, at page 93 of the Court Book, did not accept the Applicant's claims about the Christian faith and the Shouter Group and the Tribunal was not satisfied that the Applicant had any real knowledge of the Bible or the Christian religion.
The Tribunal was not satisfied that there was a real chance that the Applicant would experience serious harm, amounting to persecution for a convention reason if he were to return to China and affirmed the delegate's decision not to grant a Protection Visa.
Application and amended application
The Applicant applied to this Court for a review of the Tribunal's decision under the provisions of s.39B of the Judiciary Act. That application was filed at this Court on the 22nd September 2005. The Applicant attended Court on the morning of 24th October 2005 where I made certain directions, including granting leave to joint the Refugee Review Tribunal as Second Respondent to the application and also granting leave to file and serve an Amended Application by the 12th December 2005. I then listed the application for Final Hearing at 10:15am today, the 19th January 2006. I ordered a Mandarin interpreter for the purpose of the Final Hearing.
As is the practice of the Court, the Applicant received a copy of the Minutes of Order setting out all of these details. He has not attended Court today. The matter was called at 10:16am and the Applicant had not appeared. I stood the matter down for half an hour in case the Applicant had been delayed in making his way to the Court or in case he had become ill or injured and had sent a message indicating his inability to attend. No message has been received from the Applicant or anyone on his behalf indicating that he has been hindered, delayed or prevented in attending Court today for any reason. At 10:46am I returned to the bench and the Applicant was again called and still did not appear.
As this application has been listed for Final Hearing, I gave consideration to hearing this matter in the absence of the Applicant as is provided by Rule 13.03A, paragraph (d) of the Federal Magistrates Court Rules 2001. In my view it is appropriate to do so.
The application is listed for Final Hearing. The Applicant was aware, on 24th October last year, that the application was to be listed for Final Hearing today. The Applicant has filed an Amended Application as directed and counsel for the Respondent, Ms McNaughton, has prepared her submissions in answer to the Applicant's case, as put in his Amended Application. I do not see that there is any likelihood that the Applicant would have been confused about where to come because the hearing is taking place in the same Court before the same Federal Magistrate as was the case on 24th October 2005. It is normally my practice to explain to unrepresented applicants that the hearing will take place in this Court and it will take place before me.
In my view, these reasons justify proceeding with the hearing rather than just dismissing the application for the non-attendance of the Applicant. I have considered the Applicant's Amended Application. In that application he seeks writs of prohibition, certiorari and mandamus. He also seeks an order for costs and any further order that the Court considers appropriate. He has given six grounds:
i)That the Tribunal suspected his claims based on assumption not evidence or materials.
ii)That the Tribunal did not believe that he had a religious belief because he could not answer some of the questions and therefore the Tribunal failed to understand the Applicant's claims.
iii)A very lengthy ground; that the Applicant's convention related claims, which I have summarised, were not accepted by the Tribunal without reasons and then the Tribunal refused his application because of no convention related reasons and he, the Applicant, believed that the Tribunal failed to consider his claims.
iv)A ground that the Tribunal failed to assess the chance of his persecution on his return to China based on his membership of an underground church.
v)That the Tribunal did not refer to sufficient independent information in order to consider his application.
vi)A claim that he would submit more evidence and explanation in the outline of his review.
I would comment, as did counsel for the Respondent, that no outline of review was submitted. The Amended Application is the latest document filed by the Applicant.
I have had the opportunity of reading the Written Outline of Submissions prepared by counsel for the Respondent. In paragraph five of the Submissions, counsel noted that the Tribunal found that the Applicant's continued presentation in Australia under another name, in a situation where he was not trying to avoid detection or persecution, went to the matter of his credibility. Counsel also noted in paragraph six that the Applicant's claim about Christianity was rejected because of what the Tribunal found and I quote:
His extremely limited knowledge and understanding of the applicant about the Christian faith and the Shouter Group.
That quote is at page 92 of the Court Book. The Tribunal was not satisfied that the Applicant had any real knowledge of the Bible or the Christian religion or of his claimed faith. The Tribunal also considered whether or not the Applicant's claims amounted to a wider reference to the Applicant's objection to the more generalised system of human rights abuse and religious and political suppression. The Tribunal concluded that the Applicant did not make any further claims in this regard that had not already been dealt with and was not satisfied that there was a real chance that he would experience serious harm.
In my view, the points noted and the summary of the Tribunal's decision given by counsel in her Outline of Submissions is a correct and accurate summary of the decision, which I have of course read in full. Turning to the grounds in the Applicant's Amended Application; it is difficult to understand what jurisdictional error is contained in ground one:
That the Tribunal suspected the Applicant's claims based on assumption not evidence or materials.
Counsel for the Respondent submits that if it is a claim of bias or lack of good faith it must fail because there is an onus an applicant who claims lack of good faith, that allegation must be distinctly made and clearly proved. She cites Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [69]. I note that the Full Court of the Federal Court has also reiterated that point in the decision of SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749.
On the other hand; the ground may be no more than some form of a claim of merits review and of course merits review is not within the jurisdiction of this Court and this has been well set out by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [69]. Either way, whether it is an allegation of bias or lack of good faith or whether it is an attempt at merits review, the ground must fail. If it is a ground of bias of course, as Von Doussa J set out in SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668, whether actual bias has been shown must be determined in the context of the hearing as a whole and a finding of actual bias from the reasons for a decision alone are rare and exceptional. The Full Court also reiterated that finding by Von Doussa J in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs. For the same reasons, it is not a ground of apprehended bias.
Ground two deals with what appears to me to be the fundamental reason why the Tribunal rejected the Applicant's claims; being the Applicant's apparent lack of knowledge about his religious faith, the Christian religion and indeed about the Shouters Church. It is correct to submit, as counsel has done, that the Tribunal set out detailed reasons as to why the Tribunal did not accept the Applicant's claims in this regard and it certainly appears that this ground is no more than an attempt at a merits review which is not open to the Applicant.
The Tribunal gave reasons for rejecting the Applicant's claims and it is well known that the question of credibility is an issue for the Tribunal. The findings on credibility were open to the Tribunal on the evidence before me and I am referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67], also Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1968) 86 FCR 547, pp 558-9 and also W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69]. The ground must fail.
Ground three is the most garbled of the grounds given by the Applicant and quotes a passage from the Tribunal's reasons and alleges that the Applicant's convention related claims were not accepted by the Tribunal without reasons and then claims that the Tribunal refused the application because of no convention related reasons. The Applicant says that the Tribunal failed to consider his claims. The Tribunal did consider the Applicant's claims based on religion but did not accept those claims. The ground again appears to be no more than attempt at a merits review which, for the reasons I have already discussed, cannot be accepted. This ground has to fail.
The fourth ground, which says that the Tribunal failed to assess the Applicant's chance of persecution on his return to China based on his membership of an underground church, must also fail because the Tribunal did not accept that the Applicant was a member of an underground church. It therefore did not need to go onto assess the Applicant's chances of persecution based on something which the Tribunal did not accept as fact. The ground fails.
The fifth ground is a claim that the Tribunal did not refer to sufficient independent information for the consideration of his application. It is a matter for the Tribunal as to what assessment of independent country information should be made and what weight should be given to it. (See NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). It is also a further claim for a merits review and as such not open to review by this Court.
Counsel for the Applicant quite properly raised in oral submissions a
s.424A of the Migration Act point which relates to the Tribunal's concerns in the findings and reasons to the Applicant's two passports in different names and the Tribunal's concerns about the credibility of his evidence relating not only to the passports but to the production of a New South Wales Learner's Permit obtained in what was clearly not the Applicant's name. Clearly, there was an inconsistency there. The submission goes - and I believe correctly - that this was not the integral part of the Tribunal's decision. I am referred to a decision of
Jacobson J in SZFEG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1405 which is, as I see, an appeal from a decision which I handed down in this Court on the 1st June 2005 dismissing an application for review. Jacobson J dismissed the appeal and considered the question of inconsistencies between statements in the appellant's Protection Visa and the oral evidence which he gave to the RRT at paragraph 30, finding that those inconsistencies were not information for the purposes of s.424A. His Honour referred at paragraph 31 to the judgments of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]:
That the word information does not encompass the Tribunal's subjective appraisals or thought processes.
And that was what had occurred in that case and his Honour referred to the decision of Healey J in SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306. Importantly, paragraph 32 is relevant because his Honour says:
Second, the inconsistency was not part of the RRT’s reasons because it was not integral to the decision. See VAF at paragraph 33. It is true that the RRT referred to the inconsistencies between what was said in the appellant's Protection Visa application and in his oral evidence but it seems to me that the RRT rejected his claim because of its assessment of his oral evidence in which he claimed that his attackers were prominent criminals who claimed to support the governing party in order to obtain funds from him.
To my mind this is entirely on point with the case before me. True it is that the Tribunal referred to the concerns about the two passports and the continued use by the Applicant of an incorrect name and true it is that the Tribunal commented that those matters went to the Applicant's credibility, it needs to be remembered that the Tribunal's concern about the Applicant's credibility went to his concern about evidence that the Applicant gave to the Tribunal at the hearing. At page 89 of the Court Book the Tribunal noted that the Applicant produced his New South Wales Learner Driver's Permit at the hearing and the Tribunal accepted the Applicant's claim that he had continued to claim his name to be the other name even though this was not his real name and thereby breaching - which is misspelt - Australian regulations and laws.
I would also comment at this point that the Tribunal's findings and reasons were somewhat difficult to read in that the first paragraph of the findings and reasons begins at about point three on page 88 of the Court Book and continues in one solid block of text until approximately point five on page 93. It makes it a lot easier for Courts reviewing Tribunal decisions, and I daresay for lawyers representing either Applicants or Respondents in preparing the material, if the Tribunal decisions could be produced in a somewhat more readable form with greater use of paragraphs.
Turning from that digression back to the s.424A point; it is clear to me on my reading of the Tribunal decision that the real reason why the Tribunal rejected the Applicant's claims of a fear of persecution based on his membership of The Shouters underground church was that the Tribunal did not accept the credibility of his evidence about that issue. The two passports and the driver's licence issue are, to my mind, no more than a side issue and on my reading of the decision are not integral to the Tribunal's findings. It is the Tribunal's examination of the Applicant's religious beliefs, his knowledge of the Christian religion, his knowledge of the Bible and his knowledge of his own church that was integral to the Tribunal's finding and it was the paucity of information that the Applicant was able to give in reply to the very basis of his claim that caused the Tribunal to entertain such doubts about the Applicant's credibility that the Tribunal could not accept his claim on this regard. I do not consider therefore that there has been a breach of s.424A of the Migration Act.
It is noteworthy also that Jacobson J, in paragraph 33 of SZFEG, makes these comments which, in my respectful view, neatly encapsulate the issue:
The mere fact that within the hearing process and in the reasons of the RRT reference was made to the contents of the Protection Visa application does not make it an integral part of the RRT’s reasons. See for example SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197, Allsop J at para 22.
It is of course noteworthy that not only is SZFEG an appeal decision from the Federal Magistrates Court, so also is SZEBX and SZDXC and they, like VAF, are all binding on this Court.
In my view, the Applicant's claim must fail. I am mindful of the fact that the Applicant is unrepresented and I have read through the decision thoroughly myself in order to ascertain whether any other jurisdictional error might have appeared. In my reading I was unable to discern any. Counsel quite properly drew my attention to the potential of an s.424A point and provided what to my mind was a correct explanation as to why it was not such a point. There is no suggestion of jurisdictional error in this decision. It boils down to the question of credibility and the credibility of a witness is a case for the decision and the judgment of the decision maker.
As there is no jurisdictional error, the decision is a privative clause decision which attracts the provision of s.474 of the Migration Act. I dismiss the application.
There is an application for costs. I see no reason why the successful First Respondent should not receive a costs order. The amount sought is $4,725.00 inclusive of counsel's fees. To my mind, that is well within the scale envisaged by the Federal Magistrates Court Rules 2001 and it is an appropriate figure.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 27 January 2006
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