SZHON v Minister for Immigration
[2006] FMCA 1086
•26 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHON v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1086 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution for reason of religion – credibility – no reviewable error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
| Applicant: | SZHON |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3298 of 2005 |
| Delivered on: | 26 July 2006 |
| Delivered at: | Sydney |
| Hearing date: | 26 July 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Quinn |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3298 of 2005
| SZHON |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 26th September 2005, and handed down on 18th October. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of the People's Republic of China. She arrived in Australia on 6th January 2005, and applied for a protection visa on 24th April. On 11th May 2005, a delegate of the Minister refused that application, so the Applicant applied to the Refugee Review Tribunal for a review of that decision.
The Applicant lodged her application with the Refugee Review Tribunal on 9th June 2005. She provided a copy of her passport with that application.
The Tribunal wrote to the Applicant on 19th August, inviting her to attend a hearing of the Tribunal on 26th September 2005. The Applicant forwarded a typed statement to the Tribunal, written in the Chinese language, together with a translation into English, setting out more details about her case. That document was dated 30th August 2005.
In that statement the Applicant described how she heard from her father that the police had searched her home and her parent's home on several occasions. They found gospels and some religious reading material.
The mother, it appears, was detained, and the Applicant said that she suffered cruel punishment. This had an adverse effect on the mother's health and she had to be sent to hospital. The Applicant said that she did not dare to call home directly, but called her father or her husband on another telephone number, either at the home of a friend or a relative.
The Applicant said that the police had told members of her family that she would be punished if she were to return to China. The Applicant said that her husband was dismissed from his employment as a policeman, and has been reduced to helping a friend to sell fish to provide for himself and the couple's six-year-old son.
The Applicant attended the hearing of the Tribunal and gave evidence with the assistance of an interpreter. The Tribunal Member asked the Applicant a number of questions about her claims, and about her religious belief. He asked her what she feared would happen to her if she were to return to China, and she said that she was not sure.
The Applicant told the Tribunal that she had commenced to attend a Christian Church in Sydney since she arrived in Australia.
The Tribunal referred to the Applicant's written claims, to which I have previously referred.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 75 through to 81 of the Court Book. The Tribunal, having seen a photocopy of the Applicant's Chinese passport, accepted that she is a citizen of China as she claimed.
The Tribunal acknowledged the difficulties of proof that applicants for refugee protection may face, but went on to say that the Tribunal did not accept that the Applicant was a witness of truth.
The Tribunal set out on pages 76 through to 81 of the Court Book the reasons why the Tribunal was not satisfied about the Applicant's credibility. The reasons were divided into three subgroups: the first relating to the Applicant's alleged Christian practice, the second relating to the Applicant's mother's alleged involvement in an unregistered Church, and the third relating to the Applicant's credibility.
The Tribunal was of the view that the Applicant's knowledge of Christianity was not sufficient for a person claiming to be a Christian, as the Applicant had. The Tribunal said at page 79 of the Court Book:
Given the lack of detail about the practice and principles of the form of Christianity to which she claimed to belong… and given her apparent lack of detailed knowledge about Christianity in general, I am not satisfied the Applicant is even a practising Christian in the PRC. I am therefore satisfied the Applicant fabricated her claims to have attended an unregistered Christian Church in the PRC.
Thus, I am satisfied her claims, including to be a Christian and to have attended and practiced her Christian faith in an apparently unregistered Christian Church in the PRC, are false.
Further, based on the evidence she provided, I do not accept the Applicant even participated in any Christian Church, howsoever described, in the PRC.
The Tribunal was similarly sceptical about the Applicant's mother's subjective or objective fears of being targeted for harm in China. The Tribunal concluded that section of the reasons on page 80 of the Court Book by saying:
I am therefore satisfied the applicant has fabricated the claims of her mother's involvement in connection with, or association with, an apparently unregistered Church in the PRC.
The Tribunal then went on to consider the Applicant's credibility and said, page 80, quote:
That said, I believe that the present Applicant's alleged religious practice is critical to her claim to invoke protection obligations in Australia (given her claimed fear of persecution arose principally, if not solely, from her religious practice in the PRC). For the reasons set out above, I do not accept the Applicant is even a practising Christian in the PRC. I am therefore satisfied the Applicant is not a witness of truth.
I am sufficiently satisfied the present Applicant is not a witness of truth, such that I am satisfied there are reasonable grounds to reject all her material claims.
The Tribunal affirmed the decision not to grant a protection visa.
The Application for judicial review
The Applicant commenced proceedings in this Court by means of an application filed on 11th November 2005. In that application she says:
1. I disagree with the decision made by RRT on 26/09/2005.
2. RRT was seeking reasons to decide against my application, rather than considering on the basis of all the evidence I provided.
3. RRT set out reasons, and does not accept I was a witness of truth.
The Applicant has not filed any written submissions, but made oral submissions to the Court at the hearing this afternoon. Basically, she said that she did not know the law in Australia, or, for that matter, in China. She believed that the Tribunal and the Court did not understand the real situation in China, and stated that all that she said to the Tribunal was true.
She reiterated that she was a Christian, and disagreed with the assessment of the Tribunal Member that she did not have sufficient knowledge to demonstrate that she was a Christian. She expressed fears about the safety of her mother, and indicated she did not know how she was. She reiterated that her husband had lost his employment, and said that she did not know what would happen to her either.
I have read the written outline of submissions from the Respondent's solicitors. The Applicant claimed that she had not received a copy of those submissions, so the solicitor for the Respondent, Ms Quinn, provided a duplicate copy and, as is my practice, I allowed a short adjournment so that the interpreter could take the Applicant through the written submissions.
I then proceeded with the hearing.
The solicitors for the Respondent submit that the decision of the Tribunal in the present case is a privative clause decision, as defined by sub-s.474(2) of the Migration Act. They submit that s.474 validly operates to prevent the judicial review of all decisions under the Migration Act, except those vitiated by jurisdictional error.
The Respondent submits, and in my view correctly, that the Tribunal's decision turned on adverse credibility findings. Findings of adverse credibility, where such findings are reasonably open on the evidence before it, are properly the function of the decision-maker and are generally not susceptible to judicial review.
I am referred to the well-known decision of Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407.
The Respondents submit that it was reasonably open on the evidence before the Tribunal to conclude that the Applicant was not a member of an unregistered Christian Church, or for that matter a practising Christian in China. This, they submit, was due to the Applicant's performance at the hearing where her claims lacked detail, and in some instances, they submit, were highly implausible.
I have myself read through the decision in detail. I am of the view that the Tribunal's findings and the reasons set out are to some extent repetitive.
The findings and reasons about the Applicant's Christian practice and the Applicant's mother's alleged involvement in the unregistered Church to my mind are unexceptionable, although the final section of the reasons about the Applicant's credibility really does no more than reaffirm the findings made by the Tribunal on pages 76 through to 79 of the Court Book, reflecting the Tribunal's disbelief of the Applicant's claim to be a practicing Christian.
The findings relating to the Applicant's credibility generally do not take the matter any further.
That said, the findings of credibility are, as the Respondents have submitted, entirely a matter for the administrative decision-maker. The decision of the Tribunal indicates that the Tribunal relied for its credibility findings and its findings that the Applicant had not made out a case, entirely on the Applicant's evidence to the Tribunal.
The Tribunal also referred to the Applicant's statement dated
30th August 2005, which was submitted to the Tribunal as part of the Applicant's case to the Tribunal.
Findings as to credibility are findings of fact, and to my mind such a finding was open to the Tribunal on the evidence before it.
There is no breach of s.424A of the Migration Act, as the Tribunal's reasons for affirming the decision of the delegate relate to the Applicant's failure to satisfy the Tribunal at the hearing as to the credibility of her claim.
I am mindful of the fact that the Applicant is not legally represented, although she did seek advice from a panel member, the Refugee Review Tribunal Legal Advice Panel, and I note that she obtained advice from a barrister on that panel as long ago as 10th March 2006.
Nevertheless, the Applicant was not legally represented at the hearing, and I have conducted my own independent investigation of the Tribunal's decision in order to ascertain whether there is any jurisdictional error not referred to in the Applicant's application.
To my mind there is none. I am unable to discern any. The only jurisdictional error referred to in the application is a veiled suggestion of bias on the part of the Tribunal Member. That is a serious allegation and must be clearly alleged and strictly proved. There is no evidence to support a finding of bias.
The balance of the Applicant's application amounts to no more than a challenge to the Tribunal's factual findings.
There is no jurisdictional error that I can discern. I am satisfied that the decision of the Refugee Review Tribunal is a privative clause decision. Sub-section 474(1) of the Migration Act provides that a privative clause decision:
(a)Is final and conclusive, and
(b)Must not be challenged, appealed against, reviewed, quashed, or called in question in any Court, and
(c)Is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
The application will be dismissed.
In my view there is no reason why I should not make an order for costs in favour of the successful Respondent. The amount of $2,500.00 which is claimed is an appropriate figure, and I propose to make an order for costs in that amount.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 31 July 2006
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