SZHLK v Minister for Immigration
[2006] FMCA 1484
•12 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLK v MINISTER FOR IMMIGRATION | [2006] FMCA 1484 |
| MIGRATION – Review of decision of Refugee Review Tribunal affirming delegate of Minister not to grant the applicant a protection visa – applicant a member of the Shouters alleging fear of persecution on account of such membership – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.476, 474, 424A, 441A, 441C |
| Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 Craig v the State of South Australia (1995) 184 CLR 163 SAAP v Minister for Immigration and Multicultural and EthnicAffairs [2005] HCA 24 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] 110 FCR 27 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 |
| Applicant: | SZHLK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | SYG3129 of 2005 |
| Judgment of: | Lindsay FM |
| Hearing date: | 12 September 2006 |
| Date of last submission: | 12 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Crawley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Application filed on 27 October 2005 be dismissed.
That the Applicant pay the First Respondent's costs fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3129 of 2005
| SZHLK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Before me this morning is an application pursuant to s.476 of the Migration Act 1958 (Cth). Pursuant to that section, this Court has the same jurisdiction as the High Court does in relation to matters of judicial review, pursuant to paragraph 75(v) of the Constitution of the Commonwealth of Australia. Section 476(2) does not apply.
The decision is not a primary decision, but sub-s.474 of the Act does apply. That is the decision the subject of the application will be taken to be a privative clause decision, and therefore final and conclusive, unless it can be demonstrated that the decision is vitiated by jurisdictional error, as that concept was explained in the context of applications under Part 7 of the Migration Act by the High Court in Plaintiff S157 of 2002 v The Commonwealth [2003] HCA 2, and as that concept has been explained more generally by the High Court in cases such as Craig v the State of South Australia (1995) 184 CLR 163.
The applicant made application for a protection visa shortly after his arrival in Australia on 20 May 2005. The grounds of his application are set out at CB [19]. He said when filing that application that he was from Fuqing. He came to Australia for protection:
Because I am a member of an underground Christian group in China and Chinese authorities banned this group in 1996 and anyone found to be related to this group is subject to prosecution. Mid of last year when members got together at our home for religious activities, police arrested 14 of us and accused us of getting involved with underground church activities. I was held in the police for questioning and interrogation. My wife and other family member paid large sum of money to get me out. I realised that I would not have any problem for a short period of time only. In a long run I would face persecution from the Chinese authorities as they have found out that I had been involved with activities of Shouters. Shouters has about 500,000 followers in China and is one of the 16 underground Christian groups in China. Because the Government believes that the group relates to overseas churches it was banned in 1996. As soon as I was released I paid large sum of money to come to Australia for protection. I knew that sooner or later they would send me to jail. I sincerely hope that Australian Government can consider my application for a protection visa favourably.
That application was considered by the delegate for the Minister but ultimately the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention and Refugees Protocol. At CB [50] the delegate relevantly said this:
The applicant provides little detail in support of his claims and no evidence. His claims are totally unsubstantiated by evidence and scant in detail. The applicant claims to have been detained and interrogated in mid-2004 but he provides no specific information such as where he was detained, for how long and by whom. He claims to be a member of an underground Christian group, the Shouters, but he does not indicate what the Shouters believe or how they practice their religion. He does not indicate whether he has continued to practice as a Christian in Australia. I consider that a person who has fled a persecutory situation because of their religious beliefs as a Christian would avail themselves of the opportunity to practice their religion feely and without hindrance and would be able to present evidence of their religious practice in Australia. A lack of specific information in this application does not suggest that the claims are credible or that the claim to need protection is bona fide. I do not accept the applicant's claim that he is a Shouter and I do not accept that his claims represent the reality of his circumstances. Accordingly, I do not find that the applicant's fear of convention based persecution is well founded.
When the applicant applied to the Refugee Review Tribunal he did not provide any further information. The Refugee Review Tribunal considered his documents, which were essentially the same application and his passport, and on 11 August 2005 the Tribunal wrote to the applicant and told him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. Accordingly the applicant was invited to attend a hearing of the Tribunal on 7 September 2005 and to give oral evidence and present arguments in support of his claims.
He was also advised that he could ask the Tribunal to obtain oral evidence from other persons.
I am satisfied that the Tribunal complied with the statutory requirements as to notice contained in s.441A and s.441C of the Act and the Regulations made there under and indeed it was not contended by the applicant, either in his application or anything he has put to me today, that those statutory requirements were not fulfilled.
In response to that the applicant did nothing. I say he did nothing - he did not attend the hearing. He says to us today that it is because of transportation difficulties he had in relation to travelling from Newcastle. He said to me that he was unable to take transport and he said that he took the wrong train or bus and he said that he did not have time. But in any event, he did not attend and no further information was presented to the Tribunal.
So by the time of the Tribunal's decision, the applicant is well and truly on notice that the same problems that had led the delegate not to be able to be satisfied as to his refugee status were also the same issues that were concerning the Tribunal.
The Tribunal had little difficulty on the basis of country information available to it in finding that the Shouters, in common with other underground religious groups in China, were subject to persecution, but had this to say under the heading 'Findings and Reasons’ at CB [78]:
The principal claim of the applicant is that as a Christian who belongs to an underground or unregistered church in China, he faces the risk of persecution at the hands of the Chinese authorities if he returns to China. A distinct feature of the applicant's claims is its vagueness. It is a feature that undermines the veracity of his claims. While the applicant claims that he was a member of an underground church, he says nothing about the name of the church, its organisational structure or its activities in China. He also says nothing about when he first joined the church, his own role in the church or his association with any members of the congregation, apart from his bare claim that 14 of them were arrested for getting involved with underground church activities. He claims he was arrested but he does not say when. If one assumes that he was arrested between 1996 and 2000, then did the authorities pursue him any further following his release? If they did not, then why does he claim that he fears persecution in 2005? If they pursued him further after his release, then why did he not leave China earlier to escape the persecution? If on the other hand, one assumes that he was arrested in more recent times, then how did he manage to avoid detection and arrest by the authorities? If the applicant was held for questioning and interrogation by the authorities as he claims, then how long was he held? He claims his family paid a large sum of money for his release. Was he formally charged with associating with a banned organisation? If he was formally charged with a specific offence, does he have the evidence of the charges made against him or any related information to assist or collaborate -
It says "collaborate", it should be "corroborate", I suspect.
- his claims? The vagueness of the applicant's claims leads the Tribunal to doubt their veracity. As the country information in this decision easily indicates there is sufficient evidence that the Chinese authorities persecute nationals who associate with underground churches, however the issue before the Tribunal is not whether China persecutes the members of underground churches. The evidence clearly suggests that it does. The issue is whether the applicant is a Christian who belongs to an underground church and is therefore likely to face persecution for his religious beliefs if he returns to China. The paucity of the information contained in the applicant's claims and the vagueness of the claims themselves do not inspire confidence in their truthfulness. On the evidence the Tribunal is not satisfied that the applicant belongs to an underground church in China. The Tribunal is accordingly not satisfied that the applicant has a well-founded fear of persecution for a convention reason.
So the application was rejected and the application to this Court is filed on 29 March 2006; and it only raises the one ground and that ground clearly is that which relates to the Tribunal's obligations pursuant to s424A of the Migration Act.
Section 424A(1) of the Migration Act provides that subject to sub-section (3) the Tribunal must:
(a)give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review; and
(b)ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
Sub-section (3) provides that this section does not apply to information:
(a)that is not specifically about the applicant or another person and that is about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
and then there is another class of information to which the section does not apply that is not relevant here.
We know from the decision of the High Court in SAAP v Minister for Immigration and Multicultural and EthnicAffairs [2005] HCA 24 that a failure to comply with the provisions of s.424A will ordinarily amount to a jurisdictional error.
The Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 affirmed an earlier Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] 110 FCR 27 that the exclusion in sub-section (3)(b) related only to information given by the applicant to the Tribunal. That is, the application was interpreted in what might be described as that narrow way so as not to apply to information given by the applicant to, for example, the Minister or his Delegate at an earlier stage of the application for the protection visa.
The SZEEU decision also made clear, or affirmed that a distinction was to be drawn between information and thought processes. At [206] of the decision the Full Court say:
“Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations.”
Reference is then made to three earlier decisions.
“In this respect it is relevant to recall the root of the word information: that of which one has been told or apprised or informed. The distinction can become fine.”
There is a reference then to one of the earlier cases:
“It is a distinction nevertheless to be maintained.”
Now what was the information here, which the applicant relies upon to ground the submission that there has been a breach of s.424A?
It would plainly have to be information other than that which is excluded by the operation of sub-sections (3)(b), or (3)(a) for that matter, which in this case would encompass the country information relied upon by the Tribunal, which, in any event, was favourable to the applicant.
The applicant himself was unable to assist me in developing the submission today and for reasons that I assume are associated with his inability to continue to procure legal assistance, he was not able to file an outline of submissions as he was asked to do and orders were made at an earlier stage of these proceedings in May of this year.
The considerations of the provisions of s.424A in cases where an applicant has failed to respond to an invitation to attend at an oral hearing were considered by Allsop J in the Federal Court in the decision of SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1195. There the relevant reasons for the Tribunal in rejecting the claim for a protection visa by a citizen of Bangladesh, who feared persecution on the basis of his homosexuality, was set out at [8] of his Honour's reasons and is worth referring to in some detail. As his Honour says:
“The relevant reasons of the Tribunal in that case were as follows: The applicant has not provided the level of detail necessary to satisfactorily establish the relevant facts in his case. Questions which remain unanswered include precisely when and how his alleged homosexuality became known to others; what he means when he says that he and his boyfriend were arbitrated by the local council mosque; how he was able to leave Bangladesh unharmed if, as he claimed, he has a risk of being killed or crippled because of his sexual preference; why he returned to Saudi Arabia after his sexuality became known in Bangladesh if, as he claimed, he was in danger there; and how he was able to live in Saudi Arabia for five months after his sexuality became known to others, given his claim that his sexual preference would be known if he returned there now.
If the applicant had attended the hearing it would have been possible to investigate these matters more fully; however, despite being advised that I had reviewed the papers related to his case and could not make a favourable decision on the basis of that information alone he has provided no further information in support of his claims and declined to attend the hearing. And on the evidence currently before me I am not satisfied that his claims regarding his sexuality and the problems it has caused in Bangladesh are true. I therefore cannot be satisfied that he has a well founded fear of persecution in Bangladesh because he is a member of the particular social group of Bangladeshi homosexuals or for any other reason contained in the convention.”
Now when his Honour turned at [28] to [30] of his decision to consider the operation of s.424A, he made this point in [29], which is opposite to the circumstances before me. His Honour said this:
“On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of s.424A(1) by s.424A(3)(b) it must be that that information was the reason, or part of the reason, for the decision.”
However his Honour went on to say:
“That is too simplistic an analysis. In SCDCF I discussed the purpose of s424A. Its operation is to be understood conformably with that purpose.”
His Honour goes on:
“The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that that appellant had a well founded fear because it subjectively perceived inadequacies in the information. The reason for the decision was simply, and no more than, the evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason, or part of the reason, for the decision. It was the lack of the requested further assistance and explanation was the reason.”
And his Honour went on to find that there was no failure to comply with s.424A..
Now there are some similarities but some differences in the Tribunal's reasoning in the case before his Honour and in the case before me. Both refer fundamentally to a lack of a state of satisfaction as to the existence of circumstances giving rise to the protection obligations. Both posit a series of questions that, had the applicant availed himself of the opportunity of attending the hearing, would have been asked to try to assuage the concerns that led to that state of satisfaction not being reached. Both refer to lack of detail, vagueness and the failure by the applicant to take up the opportunity to provide that detail.
In the case before me the Tribunal goes a little further. There is a reference in the reasons on two occasions to matters of credit. Firstly the Tribunal says that the vagueness is a feature that undermines the veracity of the claims and then, towards the end of the reasons, says that the paucity of information contained in the applicant's claims and the vagueness of the claims themselves, do not inspire confidence in their truthfulness. Whilst I think the Tribunal could have expressed itself in a more felicitous way, I do not think the reference on those two occasions detracts for the general thrust of the reasons, which is the same as it was in the Tribunal decision discussed by Allsop J.
That was, as his Honour put it, that the Tribunal was not satisfied that the appellant had a well founded fear because of “subjectively perceived inadequacies in the information”. The Tribunal expressed itself in observations as to truthfulness and veracity. The Tribunal appears to think that disquiet as to the adequacy or detail of the claims can only find satisfactory expression in terms of a remark or remarks as to truthfulness. That was unnecessary. It was enough to be not satisfied on account of the plethora of unanswered questions and gaps in the information. A reading of the Tribunal’s findings confirms it was vagueness and paucity of information that led to the state of non-satisfaction. Remarks as to truthfulness were otiose. I do not consider the reference to those issues of credit to be taking the matter materially any further in the sense that it was the lack of the state of satisfaction arising on account of the lack of detail, the vagueness and the failure to take up the opportunity to provide further information that formed the basis of the Tribunal's reasoning in each case. In such reasoning and in the way in which the Tribunal dealt with the matter, I am unable to identify any jurisdictional error.
There being no other jurisdictional error contended, and there being no other jurisdictional error apparent to me from my scrutiny of the way in which he Tribunal went about the task before, it follows that the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms K Clarke
Date: 5 October 2006.
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