SZHJN v Minister for Immigration
[2007] FMCA 1334
•1 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHJN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1334 |
| MIGRATION – Credibility of applicant – finding of fact not subject to review – conclusion not “information” within s.424A – no denial of procedural fairness. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 474 |
| SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 |
| Applicant: | SZHJN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1173 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 1 August 2007 |
| Date of last submission: | 1 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitor for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1173 of 2007
| SZHJN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 11 April 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 13 February 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 14 July 1978 and claims to be from China and of Christian faith.
The applicant arrived in Australia on 5 January 2005 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 16 February 2005. In this application he claimed to be a “key member” of an underground Christian church in China, namely, a “very influential shouting branch”. The applicant claimed that his responsibilities within the church included: the provision of assistance to the church’s leader (Priest He), recruitment of new members, distribution of church materials, and the organisation of Bible study groups. The applicant claimed that in early 2004 he began his own study group which rapidly developed in size. In May 2004 “the authorities were alerted” to his activities and the applicant was accused of conducting illegal meetings. The applicant claimed that he was detained, interrogated, and “brutalised” by the Public Security Bureau from 28 May to 27 June 2004 (Court Book “CB” 23-4).
This application was refused by a delegate of the first respondent on
11 March 2005 (CB 25-39). On 12 April 2005 the applicant filed an application for review with the Refugee Review Tribunal (CB 40), and on 29 August 2005 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 56). The applicant then sought judicial review of the Tribunal’s decision with this Court, and on 14 October 2006 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law (CB 44, 56).
By decision signed on 13 February 2007, the Tribunal as reconstituted affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 62-3) (highlighting added):
The Tribunal accepts that the applicant is a citizen of the People’s Republic of China.
The Tribunal is aware that an assessment of credibility should be approached with caution (SAAK v MIMA [2002] FCA 367 (28 March 2002) and Kopalapillai v MIMA (1998) 86 FCR 547) and that it is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras 196-197 and 203-204). A decision-maker does not have to have rebutting evidence available before she or he can lawfully hold that a particular assertion by an applicant is not made out (Selvadurai v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal, Heerey J, 20 May 1994, at page 7). It is also clear that the Tribunal is not required to accept uncritically all claims made by applicants. In Rhandawa v the Minister for Immigration, Local Government and Ethnic Affairs (1994 52 FCR 437 at page 451) Beaumont J observed that a liberal attitude concerning proof of persecution in the context of an application for refugee status “should not, however, lead to an uncritical acceptance of any and all allegations made by supplicants”.
The applicant claims to fear persecution because of his religion. He claims that he is a Christian and a member of the Shouters and if he returns to China he will be arrested. In assessing the applicant’s Convention claims the Tribunal is required to determine if he has a well founded fear, and if so, whether what he fears amounts to persecution for a Convention reason. The applicant’s claims are entirely dependent upon an acceptance of him as a credible witness. The applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters stated above as explicable in terms of any difficultly he faces as an asylum seeker. The Tribunal does not accept the applicant is credible and consequently rejects all of his material claims.
The applicant stated during his evidence before the Tribunal that he became involved with the Shouters religion in 2002 in China and was baptised a Shouter in China in 2000. He claimed that he did not undergo any preparation for the baptism. He claimed during his evidence before the Tribunal that he was baptised for the second time in Australia because the Shouters in Australia did not accept his first baptism. The Tribunal does not accept that the applicant was baptised in China or Australia. The Tribunal is supported in its findings by the applicant’s lack of knowledge about all matters relating to the religion. In particular, he was unable to inform the Tribunal who founded the Shouters and stated it was Maria. He was unable to provide relevant information during the Tribunal hearing about the beliefs and practices of Shouters. His evidence about the Bible gave the clear impression that he had never studied its contents. He agreed that he knew nothing about the Bible. The country information cited above indicates that the Bible is central to Shouters’ beliefs and ‘it is the duty of every Shouter to go out and preach the gospel to relatives, neighbors, friends, and colleagues.’ The applicant, in his evidence demonstrated that he has little interest in the Bible and when the Tribunal mentioned that the country information indicated that Shouters have a duty to go out and preach the gospel to everyone he stated that he did not enjoy “finding people to preach.”
The Tribunal finds that the applicant is not a Shouter and that he has not joined any Christian/Shouter group in Australia. As the Tribunal does not accept that the applicant is a Shouter the Tribunal does not accept that he was of adverse interest to the Chinese authorities prior to leaving China or that he will face harm in the reasonably foreseeable future from the authorities in China should he return.
Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason on his return to China.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application filed 11 April 2007, the applicant states the following ground for review:
The Tribunal committed jurisdictional error of law in that it failed to comply with the Migration Act 1958, especially it denied the applicant of a fairness.
The applicant has not filed an amended application or written submissions.
The applicant was invited to put submissions to the Court but declined to do so.
Findings as to the ground in the application
The Tribunal rejected all of the applicant’s material claims because it did not accept that the applicant is credible. As stated in W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court has had regard to the Tribunal’s reasons for finding that the applicant was not credible. The Court finds that the findings of fact were properly open to the Tribunal on the material before it. The Tribunal did not act on evidence that was “inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.”
The ground in the application alleges that the Tribunal denied the applicant fairness. Section 422B provides that “This subdivision [Division 4 of Part 7 of the Act] is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters they deal with.” The reason for the decision of the Tribunal was its rejection of all material claims because it did not find the applicant to be credible. That conclusion is not “information” covered by s.424A (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]) and disbelief of an applicant’s evidence is not “information” (Ibid [18]).
The Court accepts the submission for the first respondent that:
In making its adverse credibility findings, the Tribunal relied on inconsistencies in the applicant’s evidence given to the Tribunal and on independent country information about the practices and beliefs of Shouters. The independent country information falls within s.424A(3)(a) of the Migration Act 1958 (Cth) as it is information that is not specifically about the applicant, but a class of persons of which the applicant is a member. The applicant’s oral evidence to the Tribunal falls within the exception contained in s.424A(b) of the Act. The Tribunal was therefore not required to put any of that information to the applicant for comment and no obligation under s.424A arises.
The Court finds no breach of s.424A.
As a matter of fairness the Tribunal raised with the applicant at the hearing his evidence compared with the country information, and the inconsistencies and shortfalls in his evidence (CB 59-61). By s.425(1), the Tribunal must invite an applicant to appear before it, to give evidence and present arguments. The applicant was invited to appear to give evidence and present arguments (CB 46), and appeared on
8 February 2007 (CB 58). Section 425 was complied with.
The Court finds no breach of Division 4 of Part 7 of the Act. The applicant was not denied fairness. The Court finds no breach of the Migration Act. The ground in the application is dismissed.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, which has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 8 August 2007
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