SZHJH v Minister for Immigration - [2007] FMCA 1830

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHJH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1830

MIGRATION – Review of decision of RRT – membership of underground church – whether Tribunal decision and actions indicated apprehended bias.

Migration Act 1958, ss.424, 425

Applicant:

SZHJH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File number:	SYG 2357 of 2006

Judgment of:

Raphael FM

Hearing date:

22 October 2007

Date of last submission:

22 October 2007

Delivered at:

Sydney

Delivered on:

22 October 2007

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2357 of 2006

SZHJH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 12 December 2004 and applied for a protection (Class XA) visa from the Department of Immigration & Multicultural Affairs on 25 January 2005. A delegate refused to grant the visa on 29 April 2005. The applicant applied to the Refugee Review Tribunal for a review of that decision on 3 June 2005. The decision was affirmed by the Tribunal on 21 September 2005. On 23 March 2006 the decision of the Tribunal was quashed by the Federal Magistrates Court and the matter was remitted to the Tribunal to be heard and determined according to law. The second Tribunal held a hearing which the applicant attended with his adviser. On 12 July 2006 the second Tribunal determined to affirm the decision not to grant a protection visa. The decision was handed down on 25 July 2006.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the Convention reason of religion. The applicant claimed that he was an important member of the underground Roman Catholic Church in China. He claimed that he had received instruction in that religion from his parents and first fell foul of the Chinese authorities in about 1986. He claimed that his mother had been arrested and detained for some time. In 1999 he began an association with an underground church with two persons whose names he gave. Eventually these persons were arrested and the applicant first became what he described as “the leader of the church” and then risked arrest because he felt that the two persons would have given his name away and caused him to be the subject of interest and possible persecution from the PSB. He stated that he had been regarded as a key member of the Roman Catholic underground Church by the PSB and that he and his family had been subject to investigation by the authorities.
The Tribunal hearing dealt with a number of inconsistencies between the applicant's story before the first Tribunal and other evidence. For example, he had apparently told the first Tribunal that he had been in Singapore for some eight years but he told this Tribunal that he had only been there for about a year. The Tribunal then questioned the applicant about his religious knowledge and, without rehearsing the questioning it is sufficient to say that the applicant appeared to exhibit a very skimpy knowledge of the essence of the Christian religion.
The Tribunal questioned the applicant about his concerns if he should return to China and put to him some independent country information which indicated that there had been some lightening of the clampdown on religious intolerance that the world had come to know about in recent times.
"In view of this and the significant growth in the Christian and Roman Catholic Church in China, the Tribunal asked the Applicant why he claimed he was afraid of [sic] because he claimed to be a Christian, the Applicant claimed it was because the Chinese government did not accept the Roman Catholic Church. The Tribunal put to him that there were no signs of persecution of the Roman Catholic Church but he claims they do not support the Roman Catholic Church. The Tribunal put to the Applicant that he knew that there were differences between the official Chinese Catholic and Vatican based Roman Catholic Churches in China, but it was having difficulty accepting that there had been persecution on this basis. The applicant claimed he was a key member of the Roman Catholic Church and was wanted by them. The Tribunal put to the Applicant that from his claims at the hearing it was having difficulty in accepting he was a key member of the Roman Catholic Church as his knowledge of it was very small.”
At the end of the hearing the Tribunal handed to the applicant what was a s.424A letter. The applicant told me today that he thought it was the rejection of his application but it clearly was not. It was responded to on behalf of the applicant by his advisers. The letter referred to the inconsistencies in the applicant's claims, the ease with which the applicant was able to obtain two passports and the ease with which he was able to leave China. The letter went through the independent country information that the Tribunal had referred the applicant to concerning religious tolerance in the PRC. All these matters were responded to and the Tribunal's findings and reasons note both the questions and the answers before coming to a general conclusion that it was not able to accept that the applicant was a key member or major activist in the underground Roman Catholic Church. The findings were based upon discrepancies in the applicant's evidence and the Tribunal's preference for certain evidence, particularly that from independent country information, over the evidence given by the applicant. The Tribunal repeated the concern it had expressed as to the applicant's knowledge of the Roman Catholic faith and declined to find that he was a person of interest to the authorities or that he would be arrested upon his return.
The applicant did submit to the Tribunal a letter from a Roman Catholic priest in Australia and it was aware of a letter from the chief priest of the Fuqing Parish that had previously been submitted. Whilst not in any way resiling from its views about the applicant's adherence to the faith, the Tribunal took these letters into account and gave consideration to whether or not if he returned to China he would take part in underground church activities.
"The Tribunal is also willing to give the applicant the benefit of the doubt and accept that he may again become associated with the Roman Catholic underground Church if he returns to China. However, the applicant does he claim to have undertaken[sic] any theological study or to have become evangelical in his religious belief and the promotion of his faith, and the Tribunal has already found that he was not even an active member of the Roman Catholic underground Church. In regard to any subjective fears the applicant may have on this basis the Tribunal put to the applicant some independent country information at both the second hearing and in its letter of 23 June 2006 about the Roman Catholic underground Church in China and put to him that even if he was a member, a claim which subject to further information he may provide the Tribunal has serious doubts about, and while accepting there are some continuing issues and differences between the official Chinese Catholic Church and the Roman Catholic Church based in the Vatican, these do not amount to there being a situation where members of the Roman Catholic Church are being persecuted in China, especially in Fujian Province, and therefore there is not a real chance that he would be persecuted in China if he was in fact a member of the Roman Catholic underground Church now or in the foreseeable future.
Invited to comment on this material, the applicant in his response dated 10 July 2006 simply referred to additional country information which he provided but did not refute the independent country information put to him, and while the Tribunal also accepts that Father Magee has in his letter summarised why he believes that the applicant has applied for a protection visa, based on this information alone and in view of all the country information available to it and all its earlier findings, including the applicant's limited knowledge of the Christian faith and his lack of credibility, the Tribunal has not been able to satisfy itself that as a person involved in the Roman Catholic underground Church in China the applicant would be subjected to serious harm amounting to persecution for a Convention reason if he returns to China now or in the foreseeable future."
The applicant filed an amended application under the Migration Act1958 (the “Act”) on 30 January 2007. The applicant told me today that he had written the application himself but he clearly had not because it goes into some detail about s.424 and s.425 of the Act which the applicant did not know anything about. However, whilst it would always be preferable to have the author of these documents in court to explain them the court must give attention to them. The grounds of the application appear to be claiming that the Tribunal had some obligation under s.424 to seek additional information. However, a reading of s.424 makes it quite clear that there is no obligation. The Tribunal has merely the ability to obtain such information and a failure to do so except in very special circumstances, about which I do not believe I have any need to go into at this hearing, is not a jurisdictional error. The application then goes on to deal with s.424A of the Act.
"As a matter of fact the presiding member has considered the information which was in the letter that the Tribunal had given to me during the Tribunal's hearing, being the reasons or part of the reasons for affirming the decision that is under review; and the Tribunal had already obtained such information before the Tribunal's hearing. Therefore it is definitely unfair while the presiding member before the Tribunal's hearing failed to comply with his obligation under s.424A of the Act.”
What appears to have happened here is that the Tribunal anticipated that it would be asking the applicant certain questions and that his responses would be in a particular form. Based upon that anticipation it prepared a letter. The questions that it asked were those it proposed to ask and it appears that the responses were those it expected to received. Whilst the writing of a 424A letter before the hearing even starts may be an unwise move it does not constitute jurisdictional error. Furthermore, it does not constitute apprehended bias which I feel may well have been what the writer of the application really intended to say. The writing of such a letter in no way reveals that the Tribunal has come to the hearing with a mind closed. In fact it could be said quite the contrary. Upon further reflection I concede that it is possible the Tribunal only wrote the letter after the interview had finished and, having asked the applicant to wait, handed it to him before he left. In this case (and there was no evidence either way) there would certainly not be any criticism that could be made of the Tribunal.
The next complaint in the application relates to s.425 of the Act and is a general complaint about the quality of the hearing and the failure of the Tribunal to consider the materials before it. In para. 10 the applicant says:
"I firmly believe that the presiding member had arranged a hearing for me as a mere formality or had done it perfunctorily and I never believed that the presiding member was willing to or genuinely intended to provide me a fair chance to present my oral evidences and to give my arguments. I have to say that the presiding member had already made his decision before the Tribunal's hearing and thus the Tribunal's hearing as well as the letter given to me in the Tribunal's hearing was just for the purpose to go through the motions.”
This is an allegation of ostensible bias which I believe was foreshadowed in the earlier complaint. A reading of the Tribunal's decision indicates that it did take into consideration all the relevant material that was before it and before the previous Tribunal. It made its own independent testing of the applicant's knowledge of the Roman Catholic faith and gave him every opportunity to deal with the independent country information that seemed to indicate more tolerance of the underground church than the applicant may have believed existed. A hearing conducted in this manner is not indicative of a hearing conducted by a person whose mind is fixed. A person who might come to such a hearing with some knowledge of the Tribunal's activities and purpose but who was otherwise an objective bystander would not to my mind take the view that this Tribunal was one that was incapable of movement or persuasion.
The applicant then goes on to describe his condition at the hearing and how he was unable to think clearly and he says that the Tribunal did not take that into account. However, the Tribunal was aware of these matters and indicated that notwithstanding the stress under which the applicant was, he would still have been able to have provided more information about the Catholic Church than he was able to do.
In all the circumstances, having considered the matters raised in the amended application and the Tribunal's grounds and reasons in some detail, I am unable to see anywhere in which the Tribunal has fallen into jurisdictional error in the manner in which it came to its decision. It is understandable that the applicant is upset about this and upset that the Tribunal did not accept his story but for this court to interfere with the Tribunal's decision making in that regard would be to provide impermissible merits review. For that reason the application must be dismissed and the applicant must pay the respondent's costs which I assess in the sum of $3,000.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: