SZHID v Minister for Immigration
[2007] FMCA 551
•19 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHID v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 551 |
| MIGRATION – Refugee – Christianity – “one child” policy – adverse credibility – opportunity to present case – claims considered properly – country information – information previously given at hearing – no breach of s.424A – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.424A |
| Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 204 ALR 12 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural Affairs[2000] FCA 1679 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 |
| Applicant: | SZHID |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2927 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 12 April 2007 |
| Date of Last Submission: | 3 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr. J. Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2927 of 2005
| SZHID |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 12 October 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 16 August 2005 and handed down on 6 September 2005 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 12 December 2004 and lodged an application with the first respondent’s Department on 24 January 2005. On 9 April 2005 a delegate of the respondent Minister refused to grant a protection visa to the applicant and on 3 May 2005 the applicant applied to the Tribunal for review of this decision.
Applicant’s claims before the Tribunal
The applicant claimed that he was persecuted by the authorities in China because of his membership of a group called the “Free Christian Group”. He also claimed that in 2002 he had intended to build a Christian church in his local area and this “caused dissatisfaction to the government”. He further claimed that he suffered persecution because he was fined after his second child was born in breach of the “one child” policy. Even further, he claimed that because of these events he was asked to resign from his employment.
The applicant’s claims are set out in his application for a protection visa reproduced in the Court Book (“CB”) at CB 1 to CB 26, and particularly in a statement at CB 27 to CB 28, and in oral evidence at a hearing before the Tribunal on 15 August 2005. The Tribunal’s account of what occurred at the hearing before it is reproduced in its decision record at CB 70.5 to CB 73.2.
Tribunal’s findings
The Tribunal’s “Findings and Reasons” (in its decision record) are reproduced at CB 73.3 to CB 75.6. The Tribunal concluded that the applicant was not a witness of truth and rejected all of his claims based on the following reasons:
1)The applicant was unable to tell the Tribunal anything about the Christian religion and his practice of it (CB 74.6).
2)The Tribunal did not accept the applicant’s explanation for this as credible, that is, that he was “too busy working and did not learn much about the religion”, given his other evidence that his family had practiced Christianity and that he had done so since he was a child (CB 74.7).
3)The Tribunal found that the applicant’s claims about his Christian religion and being a member of the “Free Christian Group” was “invented” to assist his claim for protection (CB 74.8).
4)The Tribunal rejected the applicant’s claim that he was fined for breaching the “one child” policy, and that the authorities were looking for him because of this. The Tribunal noted that based on his own evidence his family were still living in their family home in China, and he himself was living there up until the time he left China and that he continued in the same employment until one month before he left China and that he departed China to come to Australia without difficulty using a passport in his own name (CB 74.9 to CB 75.1).
5)The Tribunal found that the above was inconsistent with the applicant’s claim that he was persecuted in China (CB 75.2).
6)The Tribunal did not accept the applicant’s claims that he had difficulty obtaining his visa (CB 75.2).
7)Nor did it accept as truthful the claim that the authorities came to see him at his home after the visa was issued and noted that the applicant agreed that this claim was made for the first time at the hearing. The Tribunal considered this to be a recent invention for the purpose of assisting his claims to protection (CB 75.3).
The Tribunal concluded, on the evidence, that there was no plausible evidence before it that the applicant would suffer persecution from authorities in China either at the time of the decision, or in the foreseeable future, for any Convention related reason if he returned to his country, nor that he had a well founded fear of persecution in China within the meaning of the Refugees Convention.
Application to Court
The application before this Court put forward no formal stated grounds, but does contain the following:
“The grounds of the application are:
Particulars:
1. The Tribunal found that the applicant had not suffered any persecution from authorities in China because of his religion or because of the application of a fine under the one child policy or for any convention reason if he returns to his country. By reaching such finding the Tribunal failed to properly consider the applicant’s claims and the relevant country information concerning the one-child policy and underground Christian in China.
3. The Tribunal did not accept the applicant’s credibility by testing his knowledge about Christianity. The applicant claims that was a wrong test and it constitutes judicial error.”
Hearing
Before me today the applicant appeared unrepresented. He was assisted by an interpreter in the Mandarin language. Mr. Mitchell appeared for the respondent. The applicant stated that the Tribunal refused his application because it said he was not “familiar” with Christianity, resided at the same address and had not changed his “job”. The applicant submitted that he did not express himself “well” at the hearing and there was no opportunity to explain. Further, that he lost the opportunity to explain through the Tribunal’s failure to apply s.424A of the Migration Act 1958 (“the Act”).
Applicant’s grounds
In all, I took the applicant’s complaints to be that:
1)The Tribunal failed to properly consider the applicant’s claims.
2)The Tribunal failed to consider relevant country information concerning the one-child policy and “underground” Christians in China.
3)The Tribunal was in error in making a credibility finding based on testing the applicant’s knowledge of Christianity. In the alternative, the Tribunal’s credibility finding was flawed because it did not test the applicant’s knowledge of Christianity.
4)He was denied the opportunity to properly explain his case. This was with reference to what occurred at the hearing before the Tribunal, in that he did “not express himself well”, and was therefore denied the opportunity to explain.
5)Because the Tribunal failed to comply with s.424A, he lost a further opportunity to explain.
Response
The respondent submitted that the findings as to the applicant’s credibility were open to the Tribunal and were based on rational grounds (Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”). Further the respondent submitted that the credibility finding subsumed the applicant’s evidence and the Tribunal was not obliged to make any further investigations or speculate on possible claims that did not arise on the evidence submitted (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 204 ALR 12 at [1], [42] and [43]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [55]-[63]).
Ground one – failure to properly consider claim
The applicant’s complaint that the Tribunal failed to properly consider his claim to have suffered persecution from the Chinese authorities because of his religion, or the application of a fine under the so called “one child” policy is not made out.
On the material before the Court, the Tribunal clearly understood the applicant’s claim in this regard. In the exposition of the applicant’s claims (CB 70.5 to CB 71.4) the Tribunal identified these claims, and in fact also noted a third claim that he had been asked to resign from his employment.
The Tribunal’s account of what occurred at the hearing before it on
15 August 2005 reveals that the Tribunal discussed both the issues which particularise this complaint. Further, in its “Findings and Reasons”, the Tribunal, in my view, accurately captured the applicant’s claims. The Tribunal said:
“The essence of the applicant’s claims is that he was persecuted by authorities in China and fears further persecution because he is a Christian and a member of a group called the Free Christianity group and he expressed the intention to build a Christian church in his local area. He also said that he was persecuted and fears further persecution because he was fined a greater than normal fine after his second child was born in breach of the one child policy and he has not paid that fine. He also claims that because of these events he was asked to resign from his employment.” (CB 73.4 to CB 73.5)
The Tribunal’s analysis of the applicant’s evidence before it led it to it’s rejection of the applicant’s claim that he was a Christian and/or a member of a Christian group. Nor did it accept that he was fined because of a breach of the “one child” policy. Nor for that matter did it accept that he had been asked to resign from his employment.
Having understood the applicant’s claims the Tribunal could not be satisfied that the applicant was a witness of truth (CB 74.6). As Mr. Mitchell submits, findings of fact, including findings on credibility, are for the decision maker “par excellence”, as so described by McHugh J in Durairajasingham at [67]. In my view on a plain reading of the Tribunal’s decision record and in the circumstances before it, the Tribunal’s findings were open to it on what was before it, and it gave reasons for its findings. I cannot discern jurisdictional error in this regard.
Ground Two – country Information
The applicant also complains that the Tribunal failed to properly consider relevant country information about the “one child” policy and the “underground” Christian church in China.
The simple answer to the applicant’s complaint is that the Tribunal was not obliged to do so. The Tribunal found that the applicant was not a Christian, or a member of an underground Christian church (CB 74.3), Nor that he was fined after his wife had a second child (CB 74.9). In these circumstances there was no need to further consider any country information about “underground” churches or the “one child” policy. Whatever such country information may say about adherents of underground Christian churches, or those who are fined for breaching the one child policy, it would not, given the Tribunal’s findings, apply to the applicant.
Ground Three – christianity and credibility
I have already considered above the Tribunal’s findings as they relate to the issue of the applicant’s credibility above. The applicant’s complaint specifically is also that either the Tribunal should have tested him on his knowledge of Christianity, or that it should not have reached an adverse view of his credibility based on its test of his knowledge of Christianity.
I should at first note that the applicant has not put any evidence before the Court, say by way of transcript, as to what occurred at the hearing with the Tribunal. The Court can only proceed on the evidence before it (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 (“NAOA”)). The only account of what occurred at the hearing is what is reported by the Tribunal in its decision record.
If the applicant’s complaint is that the Tribunal should have tested him on the issue of his knowledge of Christianity, then on the Tribunal’s account, that is just what it did (CB 73). If a further iteration of this complaint is that it should have done more in testing his knowledge, then he does not say what more should, or could, have been done. In any event, on what is before me there is no obligation on the Tribunal to have made any further enquiries of the applicant or otherwise. It is difficult to see what the Tribunal could have done to have further tested the applicant’s knowledge in light of its report that:
“…he was unable to tell the Tribunal anything about the Christian religion and his practise thereof.” (CB 74.7)
If however, the complaint is that it should not have made a finding about his credibility by testing him in his knowledge of Christianity, then this must be rejected. There is clearly no obligation on the Tribunal to uncritically accept an applicant’s claims. I should note that the Tribunal’s credibility finding was not only based on the applicant’s lack of credible evidence in relation to the issue of his claimed Christianity. But even to the extent that its credibility finding was, in part, based on the issue of the applicant’s lack of knowledge of Christianity, it was open to the Tribunal to proceed in the way that it did.
The applicant said he was a Christian and connected to an “underground” church. The Tribunal did not find his evidence in support of this claim to be credible. I cannot see that the Tribunal applied any “wrong test” as is asserted. It simply, for reasons which it gives, was not persuaded as to the applicant’s credibility in this regard. I cannot discern jurisdictional error in what the Tribunal has done in this regard.
Ground Four – denied opportunity at hearing
As Mr. Mitchell submitted, there is no evidence before the Court (the only report of what occurred at the Tribunal hearing is the Tribunal’s decision record) on which the Court could draw such an inference that the applicant was denied the opportunity at the hearing to “properly explain his case” (NAOA).
On what is before the Court, and with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63 (“SZBEL”) in mind, the applicant was given the opportunity to respond to the Tribunal’s concerns relating to matters relevant to the issue of his credibility, such that the issues to which its reasoning processes were directed had been adequately notified to the applicant ( see SZBEL in particular at [21] and [22] to [44]).
On the issues determinative of the applicant’s credibility:
1)That the applicant was asked to pay a fine when his daughter (his second child) was born, and that he intended to build a church, led to his coming to the notice and concern of the authorities (CB 72.4 to CB 72.6) were discussed with the applicant at the hearing and the Tribunal:
“…told the applicant that it found his evidence difficult to accept…” (CB 72.7).
2)That the authorities visited him regularly (“harassed/watched/persecuted”) because of the unpaid fine and his religious activities and this would resume if he returned to China, was inconsistent with his statement that he was living at his usual address in China and working in his usual job (since 1999) (CB 72.7 to CB 72.8). The Tribunal:
“…pointed out to the applicant that his evidence is that he worked in China up until a month before he left China despite the difficulties he mentioned…” (CB 72.9).
3)The applicant’s lack of knowledge of Christianity and his claimed practice of it was discussed as recorded at CB 73.1 to CB 73.2. The Tribunal’s notice of this issue to the applicant is reported at CB 73.3:
“The Tribunal put to the applicant that it did not find his evidence credible…”
Ground 5 – Breach of s.424A
The applicant complains that because the Tribunal did not comply with the provisions of s.424A he lost the opportunity to explain himself to the Tribunal. I understood that applicant’s complaint to be that he was unable to explain himself at the hearing and the Tribunal therefore should have written to him (pursuant to s.424A) and given him the opportunity to comment.
The Tribunal’s obligations in relation to s.424A (with SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 24 (“SAAP”), Al Shamry v Minister for Immigration & Multicultural Affairs[2000] FCA 1679 (“Al Shamry”), and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) in mind) are in short, to put to the applicant in writing (subject to the exceptions in s.424A(3)), information on which it relied, even in part, in making its decision.
In the context of the applicant’s specific complaint, and in the circumstances before the Court, there was no obligation on the Tribunal to put to the applicant for comment, in writing, that information which the applicant gave to the Tribunal for the purposes of the review. Such information of course comes within the exception contained in s.424(3)(b) from the obligation in s.424A(1) and s.424A(2). Nor is the Tribunal’s adverse thought process about what the applicant said “information” for the purposes of s.424A (SZEEU per Allsop J. at [206]). This specific complaint does not succeed.
Mr. Mitchell submitted further that while some of the information that the Tribunal relied upon was contained in the application for a protection visa (the applicant’s employment, travel, and residence information), that the applicant himself also gave this information (with reference to the Tribunal’s account of what occurred at the hearing – CB 71.4 to CB 71.7) to the Tribunal at the hearing. I accept his submission that the Tribunal’s reliance on this information does come within the exception in s.424A(3)(b). With reference to SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 (“SZDPY”) (particularly at [35]), the Tribunal relied on answers to questions which, on what is before me, were specific and arose from the applicant’s application. I note further the reference in SZDPY on this issue to SZEEU at [91], [173] and [264] for the proposition that where an applicant affirms a fact before the Tribunal, such information comes within the ambit of s.424A(3)(b).
Grounds – further consideration
I did give consideration to a particular not raised by either party. In its “Findings and Reasons”, the Tribunal stated:
“The Tribunal does not accept as truthful the applicant’s claims that he had difficulties getting his visa or that authorities came to see him at home after his visa was issued. The applicant agreed he made the latter claim for the first time at the hearing. The Tribunal considers that this claim is recent invention to assist his claim for protection” (CB 75.3).
With s.424A in mind, and in light of SAAP, Al Shamry and in particular SZEEU (SZBMI) at [221] per Allsop J, I did consider whether the extract above could be said to reveal some reliance on an inconsistency between information provided at the hearing, and that if that information were true (which the Tribunal found otherwise), it would have been included in some prior statement. That is, was the information at the hearing being compared to information previously given by the applicant (for a reason other than for the purpose of the review – that is the protection visa application statement), which was did not include the claims put forward at the hearing.
The first issue therefore is what was the information in this regard, which was a part of the Tribunal’s decision as to the applicant’s lack of credibility, whether this was a part of the Tribunal’s decision, and whether this was a part of the Tribunal’s decision (with reference to SZEEU at [215]).
Amongst other matters, the applicant claimed at the hearing before the Tribunal that the authorities came to visit his home:
“Also in 2002 he intended to build a church in a local place and this caused “caused dissatisfaction to the government”. Government officials came to his house and talked to him about this and the last time they came to his house was about 10 days before he left China.” (CB 72.4)
Looking at the decision record as a whole (in particular the account of the hearing and the “Findings and Reasons”), the applicant claimed at the hearing before the Tribunal that the authorities were watching him and harassing him (by visiting his work and home) because he was a Christian, because he intended to build a church in China, and after April 2003 because he and his wife had a second child. All of this was information provided at the hearing.
The Tribunal noted (CB 72.7) the applicant’s evidence that “he ran away when he got the visa”. The Tribunal found the applicant’s evidence difficult to accept as on the one hand he claimed he was being harassed, watched and persecuted because of the birth of his daughter and because of his religion and his intention to build a church, but on the other hand that he and his family continued to live at the same address, where his family continued to reside after he left for Australia, and that he was working at his usual job up to a month before he left for Australia.
In my view, when the decision record is read as a whole and the extract at CB 75.3 is put in context, the Tribunal did not accept that the authorities came to visit his home after the visa was issued, because it found what the applicant had said at the hearing before it in this regard as, along with other matters, implausible and inconsistent with his other claims. The Tribunal saw the applicant’s claim of harassment because of his claimed Christianity as an “invention” (CB 74.8). Similarly, it saw the claim made for the first time at the hearing, that the authorities came looking for him at his home because of his second child, as a “recent invention” because the applicant’s other evidence was that (although the authorities were looking for him), he lived at the same address for some years up until he left China, his family continued to live at that address after his departure, and that he left China using a passport in his own name (the passport was given to the Tribunal at the hearing) without difficulty, and further that all this was inconsistent with the claim of persecution (CB 75.2).
On a plain reading of the decision record, I do not see that the Tribunal was comparing the applicant’s account at the hearing with some prior statement absent information subsequently provided to the Tribunal. While the Tribunal recognised that the claim of this visit to the home was made at the hearing for the first time, its consideration of this to be a “recent invention” derived from the inconsistencies inherent in what the applicant had said at the hearing. As such this was information provided by the applicant to the Tribunal for the purposes of the review, such that it came within the exception in s.424A(3)(b) from the obligations imposed by ss.424A(1) and (2).
In all, the applicant’s complaints do not reveal jurisdictional error in the Tribunal’s decision. Nor can I otherwise discern such error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 19 April 2007
0
10
1