SZHLN v Minister for Immigration
[2007] FMCA 53
•30 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 53 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 424A, 425 |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 Abebe v Commonwealth (1999) 197 CLR Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Re Ruddock & Another; Ex parte Applicant S145/2002 (2003) 201 ALR 437 SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327 |
| Applicant: | SZHLN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3108 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 October 2006 |
| Date of Last Submission: | 19 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2007 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3108 of 2005
| SZHLN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 27 January 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 20 September 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 1 April 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background Facts
The Tribunal recorded that:
… the applicant claimed that in 1996 his life as a farmer was ‘destroyed suddenly’ because his farmland was taken over by Government authorities and sold to ‘officials’ and some of ‘their families who had powerful Government friends’. He subsequently had to look for other jobs… (Court Book (“CB”) page 61).
The applicant claims to have met a Mr Chen in 1996 who taught him how to do business and who introduced him to the “Shouters” Christian group, which the applicant subsequently joined.
The applicant claims to fear future persecution in China because of his religious beliefs and activities.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-11 of the Tribunal’s decision (CB 61-68). Relevantly, they are in summary:
a)he joined a secret congregation of the Shouters underground Christian church in 1997;
b)from 1997 and for the next two and a half years, the applicant worked ‘on the surface’ as a self-employed salesperson selling small goods for a man by the name of Mr Chen (who was associated with the Shouters) but claims that during this time he was in fact an assistant to Mr Chen in the distribution of Shouters propaganda materials to secret congregations in the villages;
c)in February 2000, officials from the Public Security Bureau came to arrest people at a secret Shouters meeting. The applicant and a few others from the church were able to escape. As a result, the applicant claims he could not return to his own home;
d)shortly after the February 2000 incident, police officers went to the applicant’s house with an arrest warrant. His wife was interrogated as to his whereabouts;
e)the applicant claims that he hid at the house of Mr Li for about three months, during which police threatened and warned his family, and they ‘continuously put them in trouble’;
f)the applicant changed his name and moved to Guangdong Province in May 2000, to avoid attention from the Public Security Bureau;
g)in March 2003, the applicant started a transportation business and began attending the Shouters underground church in a small village in Guangdong. His wife was reunited with him;
h)the applicant began delivering Shouters propaganda materials and distributed Bibles to secret congregations throughout the country, but claims he was never able to return to Fuqing city because of his fear of the authorities;
i)in the middle of January 2005, the Public Security Bureau in Fuqing arrested a member of the Shouters whose confessions to the Public Security Bureau led them to look for the applicant and his wife in Guangdong;
j)the applicant left China on 10 February 2005.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
4.The RRT accepted that independent evidence suggested that Christians belonging to “underground churches” risk persecution at the hands of the authorities in China (CB 16.5)
5. However, the RRT did not accept that:
5.1 the applicant was a Christian (CB 16);
5.2the applicant was a member of an underground Church (CB 17);
5.3the police searched his home or interrogated his wife (CB 18)
6.The decision turned on adverse credibility findings. The RRT considered his oral testimony to be implausible, primarily on the basis that it considered that the applicant:
6.1demonstrated very little knowledge of the Christian faith;
6.2was unable to explain the peculiar technique of praying associated with the Shouters sect; and
6.3did not provide any collaborative [sic] evidence in support of his claims.
7.As the RRT was not satisfied the applicant was a member of the Shouter’s sect, it followed it did not find any credible basis on which the authorities would pursue him (CB 19).
Proceedings in this Court
Although structured or arranged somewhat differently in the amended application, the grounds of the application can be summarised as follows:
a)the Tribunal incorrectly assessed the applicant’s credibility;
b)the Tribunal asked itself a number of wrong and irrelevant questions;
c)the applicant did not get a proper hearing because the interpreter was not able to translate religious terms accurately and correctly;
d)the Tribunal failed to identify and consider relevant issues to be determined;
e)the Tribunal failed properly to determine whether the harm feared amounted to persecution and whether that fear was well-founded;
f)the Tribunal misunderstood the applicant’s case and failed to consider an essential claim in that case;
g)the Tribunal failed to comply with its obligations under s.425 of the Act; and
h)the Tribunal failed to comply with its obligations under s.424A(1) of the Act.
Dealing with each of these grounds in turn:
The Tribunal incorrectly assessed the applicant’s credibility
I am a Christian and particularly I am a member of the local Church (aka Shouters).
a)A mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantial or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 16. This claim advanced by the applicant asks the Court to review the merits of the Tribunal’s decision that the applicant is not a Christian or a member of the Shouters Church rather than the process by which it arrived at its conclusion. This is not a ground for the grant of the relief sought in these judicial review proceedings: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at 579 [195].
I am not only an activist of the “Shouters” in China, but also in Australia.
a)The considerations discussed in relation to paragraph (a) above apply equally to this ground.
The Tribunal, however, failed to seek any independent evidence from the “Shouters” in China; the Tribunal also failed to consider written evidence provided by the Local Church in Australia.
a)Contrary to the applicant’s assertion, the Tribunal was under no obligation to make enquiries or to seek evidence from the “Shouters” in China: Minister for Immigration & Multicultural & Indigenous Affairs vSGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at 21-22 [42], [43], Gleeson CJ agreeing at 13[1].
b)In proceedings before the Tribunal, it was for the applicant to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether that claim had been made out; Re Ruddock & Another; Ex parte Applicant S145/2002 (2003) 201 ALR 437 per Gummow and Hayne JJ at 450 [57], Gleeson CJ agreeing at 438 [1].
c)As to the issue of written evidence which is alleged had been provided by the Local Church in Australia, the Tribunal said in its decision at CB 61 that it had the department’s file, material referred to in the delegate’s decision and other material available to it from a range of sources. Neither there nor elsewhere in the Tribunal’s decision is there any indication that any written material had been received by it from the Local Church in Australia. Nor, in his submissions to the Court, did the applicant identify any such material. In the circumstances, there is nothing before me to indicate that any written evidence had been provided to the Tribunal by the Local Church in Australia.
The Tribunal denied my religious belief and membership of the “Shouters” only based on a few questions asked at the Tribunal’s hearing; and the Tribunal has, particularly, ignored the fact that the interpreter appearing was unable to translate those religious terms accurately and correctly.
a)The applicant appears to be suggesting that the Tribunal’s questioning of him at his hearing should have been more detailed or probing than it was. Notwithstanding that on 29 November 2005, orders were made that, amongst other things, by 31 January 2006 the applicant was to file and serve any transcript of the Tribunal hearing on which he relied, no transcript of that hearing was before the Court. In the circumstances, there is no evidence of the conduct of the proceedings other than what appears in the Tribunal’s decision. But even were there to have been such evidence, the Tribunal conducting an inquisitorial hearing was not obliged to prompt and stimulate an elaboration which the applicant chose not to embark upon: Re Ruddock; Ex parte S154/2002 per Gummow and Hayne JJ at 451 [58], Gleeson CJ agreeing.
b)The applicant asserts that the interpreter at the hearing was unable to translate typical religious terms accurately and correctly. However, in the absence of a transcript of the hearing and expert evidence as to the accuracy of the translations provided at the Tribunal hearing, there is no basis upon which this ground could be sustained.
For the above reasons, this ground is not made out.
The Tribunal asked itself a number of wrong and irrelevant questions
The applicant particularises this ground as follows:
(a)The Tribunal failed to demonstrate itself to have genuine understanding about the “Shouters”. In other words, the Tribunal itself is not a specialist of the “Shouters”, and therefore the Tribunal is unable to elect proper questions to determine or to justify whether I am a member of the “Shouters” or not.
(b)The Tribunal failed to seek independent opinions, such as the opinions from those elders at “Shouters” in Australia, for determining my claims and considering my credibility.
In this ground, the applicant asserts that the Tribunal did not have sufficient information or expertise to arrive at a correct conclusion. However, as has already been noted in relation to the applicant’s claims set out in paragraphs 12 and 13 above, the Tribunal had no duty to make enquiries nor to ask the applicant to elaborate on his case or the material he placed before the Tribunal. Notwithstanding that, in fact, the Tribunal did ask the applicant several questions, as appears from its decision reproduced in the Court Book. It was for the applicant to put the necessary material before the Tribunal in order that it could make its decision. The applicant does not suggest in this ground that the Tribunal incorrectly identified the issues which it had to consider; merely that it did not gather facts which it had no duty to seek out in order to make its decision.
Consequently, this ground is not made out.
The applicant did not get a proper hearing because the interpreter was not able to translate religious terms accurately and correctly
The issues raised by this ground have been dealt with in paragraph 13 above and, for those reasons, this ground is not made out.
The Tribunal failed to identify or consider relevant issues to be determined
The applicant particularises this ground as follows:
(a)Again, the Tribunal failed to seek independent opinions, such as the opinions from those elders of the “Shouters” in Australia for determining my claims and considering my credibility;
(b)At least, the Tribunal should contact the writer of the written evidence of my church in Australia, which I submitted to the Tribunal at the hearing.
The applicant does not identify what he says were the relevant issues which the Tribunal failed to identify and consider. In order to succeed on this ground, the applicant needs to demonstrate an error such as misunderstanding of the criteria for the grant of a protection visa. The applicant does not assert an error of this nature. Rather, he impugns the effectiveness of the Tribunal’s fact-finding. For the reasons already discussed, mere factual error on the part of the Tribunal does not amount to a jurisdictional error or a basis upon which the Tribunal’s decision may be set aside.
It is also appropriate to restate that the Tribunal had no obligation to make enquiries.
This ground is therefore not made out.
The Tribunal failed to properly determine the applicant’s case concerning whether the harm feared amounted to persecution and whether that fear was “well-founded”
This ground invites the Court to undertake a merits review of the Tribunal’s decision. That is not open to the Court on an application such as this and this ground must fail.
The Tribunal misunderstood the applicant’s case and failed to consider an essential claim in that case
The particulars in the amended application which appear to relate to this ground are as follows:
(a)The Tribunal should understand that as a key member of the “Shouters” group, I must be subjected to persecution upon my return;
(b)The Tribunal failed to consider the fact that I have already been subjected to persecution owing to my religious beliefs and practices.
Again, to the extent that this ground seeks a review of the Tribunal’s fact-finding, such a review is not available in proceedings such as these.
As to whether the Tribunal failed to consider persecution which the applicant says he suffered in China before he came to Australia, the Tribunal did consider the applicant’s claims in this respect and rejected them saying:
… the Tribunal is not satisfied, on the evidence, that the applicant was or is a Christian; and even if one accepted that he may have been a Christian, the Tribunal has found on the evidence that the applicant was not a member of an underground church as he claimed. Accordingly, the Tribunal does not see any credible basis on which the police authorities would have gone to the applicant’s home to look for him and to interrogate his wife. The applicant’s claims that the police authorities have been to look for him in his home and are looking for him in China because of his association with the shouters, lack veracity. Accordingly, the Tribunal does not accept the claims. (CB 76)
The Tribunal failed to comply with its obligations under s.425 of the Act
Section 425(1) provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicant asserts that during the hearing the Tribunal never ensured that the applicant understood the issues which were before the Tribunal for determination, as a result of which he was deprived of his rights to present arguments in relation to these issues. However, it was for the applicant to demonstrate to the Tribunal that he met the criteria for the issuing of a protection visa to him. The Tribunal’s decision records that the applicant was given the opportunity to put his case to the Tribunal. The decision includes the following passage:
He also complained that he had not been given enough opportunity to explain himself and his circumstances. The Tribunal notes further that on all occasions when the applicant made such a complaint, Tribunal read back to the applicant the notes the Member has made concerning his claims to indicate to the applicant that the Tribunal has taken note of what he has said. The Tribunal also then asked on each occasion if the applicant wished to say or add anything further to his claims and gave the applicant an opportunity to make further submissions. The applicant took up the opportunities. (CB 76)
For the above reasons, this ground is also not made out.
The Tribunal failed to comply with its obligation under s.424A(1)
In respect of this ground the applicant refers to the fact that the Tribunal relied on independent country information in arriving at its decision and says that the Tribunal failed to provide to him the particulars of that information, failed to ensure that he understood why those documents were relevant to the hearing and failed to invite him to comment on them.
Section 424A provides:
(1) Subject to subsection (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.
(2) …
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just 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
(c)that is non‑disclosable information.
Independent country information falls within the exclusion found in s.424A(3)(a): SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327 per Gyles J at [7].
Because independent country information falls within the s.424(3)(a) exception to s.424A(1), the Tribunal was under no obligation to provide to the applicant such information of that nature as it relied upon in arriving at its decision and thus it did not commit jurisdictional error on that account.
Conclusion
None of the grounds advanced by the applicant have been made out with the result that no jurisdictional error on the part of the Tribunal has been demonstrated.
Therefore, the application will be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 30 January 2007