SZHRG v Minister for Immigration

Case •

[2006] FMCA 1304

•

29 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHRG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1304
MIGRATION – Visa – protection visa – application for review of decision of the Refugee Review Tribunal – where Tribunal affirmed delegate’s decision – merits – allegation of bad faith – no evidence of bad faith – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss. 412, 414, 415, 420, 474
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
See Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
SBBS v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 361
NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713
Applicant: SZHRG
First Respondent:

MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3461 of 2005
Judgment of: Scarlett FM
Hearing date: 29 August 2006
Date of Last Submission: 29 August 2006
Delivered at: Sydney
Delivered on: 29 August 2006

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3461 of 2005

SZHRG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 7th October, and handed down on 27th October 2005.

  2. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the Applicant. 

Background

  1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 29th January 2005.  Four days later, on


    3rd February, she applied for a Protection (Class XA) visa. That application was refused on 1st June 2005.

  2. On 5th July in that year the Applicant applied to the Refugee Review Tribunal for a review of that decision. The applicant, who had the assistance of a migration agent, lodged an application together with a three page typed statement in English setting out her claims.  

  3. The Tribunal wrote to the Applicant on 25th August inviting her to attend a hearing to take place on 4th October 2005.  The Applicant, through her migration agent, sent a reply to the invitation indicating that she wished to attend, and needed an interpreter in Mandarin Chinese. 

  4. The Applicant attended the hearing and brought with her an identity card and a letter dated 2nd October 2005 from the Minister of the Padstow Chinese Congregational Church. That letter confirmed that the Applicant had been worshipping at the Church since 6th February 2005.

  5. The Applicant gave evidence to the Tribunal that she had arrived in Australia using another name, and told the Tribunal what her real name was. She said she had left under a different name in order to avoid persecution. 

  6. She claimed to be a Christian who has been in trouble with the authorities in China because of her underground religious activities.   She claimed to have lost confidence in Communism over the years, and around January 2000 she met and formed a relationship with a man who taught her about Christianity.  She claimed to have been baptised in August of that year, and practised Christianity in secret as part of an underground Church.

  7. She claimed that in February 2004 she was arrested, as were several other people, and were tortured and humiliated and mistreated by the police. She said that she was released on bail on 30th April 2004 for medical treatment, and was required to report to the police weekly.

  8. She said that she went into hiding for seven months, and the person who had introduced her to Christianity had been persecuted to death.  She claimed to be wanted by the Public Security Bureau and had decided to leave China.

  9. The Applicant gave oral evidence at the hearing and was questioned about her religious activities by the Tribunal.  The Tribunal asked her about her activities in China, and in Australia. 

  10. The Tribunal raised certain doubts with the Applicant about the adequacy of her knowledge of Christianity.  The Tribunal put to her that if it were to find that she had engaged in Christian activities in Australia for the purpose of enhancing her claims for a protection visa application, the Tribunal would have to disregard those activities. The Applicant denied that that was her motivation. 

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on pages 82 through to 85 of the Court Book.  The Tribunal was satisfied on the basis of the identity material provided, that the Applicant is a citizen of China.

  2. The Tribunal expressed itself as having concerns about the veracity of the Applicant's claims. The Tribunal found at page 83 of the Court Book that the Tribunal was not satisfied that the Applicant was a credible witness, and set out on pages 84 and 85 the reasons why the Tribunal was not satisfied about the Applicant's credibility. Those reasons included vague, general and evasive responses, and a change to her evidence on certain points within a few minutes. 

  3. The Tribunal found at page 84:

    Looking at the evidence as a whole, the Tribunal is satisfied that the vagueness, evasiveness, generality in the applicant's responses relating to her activities in China, her level of knowledge of Christian doctrines which the Tribunal considers incommensurate with her claim that she has been practising Christianity since 2000, as well as the contradiction in her oral testimony indicate that the applicant has fabricated her claims in order to support her application for a protection visa, reflecting poorly on her credibility.

  4. The Tribunal noted on page 85 that there was evidence that the Applicant had been involved in Christian activities in Australia since 6th February 2005.  The Tribunal accepts that as plausible, but noted since the Applicant's involvement in those activities approximately seven days after her arrival in Australia, and in light of the adverse credibility finding, the Tribunal was satisfied that the Applicant engaged in those activities not in good faith, but for the purpose of strengthening her claims for a protection visa.

  5. The Tribunal described as unconvincing her explanation that she got involved in Church activities to seek comfort rather than support her application for a visa. 

  6. The Tribunal noted that the Applicant had applied for a protection visa on 3rd February 2005, and commenced worshipping in the Padstow Chinese Congregational Church on 6th February. Accordingly, as the Tribunal was satisfied that the Applicant had engaged in Christian activities in Australia for the purpose of strengthening her claims for a protection visa, under the provisions of sub-s.91R3 of the Migration Act, the Tribunal disregarded those activities.

  7. The Tribunal did not accept that the Applicant had suffered any Convention related harm, or that there was a real chance of that happening in the reasonably foreseeable future.  As the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason, the Tribunal affirmed the decision of the delegate not to grant a protection visa.

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court on 25th November 2005.  She obtained legal advice from a solicitor under the RRT Legal Advice Scheme. The solicitor drafted an Amended Application for her, which she filed on 27th June this year. 

  2. There are three grounds to the application:

    i)That the Tribunal failed to carry out its statutory duty.  

    ii)That the Tribunal's decision was based upon an unwarranted assumption. 

    iii)That the Tribunal failed to carry out its review on a bona fide basis. 

  3. As to the first ground, namely a failure to carry out the Tribunal's statutory duty, the Applicant alleges a breach of s.424A of the Migration Act in that the Tribunal had particular information which was the date of lodgement of the Applicant's protection visa application, and failed to give particulars in writing of that information to the Applicant, explain why it was relevant and give the Applicant an opportunity to comment upon it.

  4. The Applicant is alleging, therefore, a breach of sub-s.424A(1) of the Migration Act. In my view that ground must fail, because the Applicant had given that information to the Tribunal for the purpose of her application for review.

  5. The date of the application appears in the heading of her letter to the Refugee Review Tribunal, submitted with her application for review on 5th July 2005. It therefore comes under the exception set out in


    sub-s.424A3(b) of the Migration Act.

  6. Turning to the Applicant's second claim, that the Tribunal's decision was based upon an unwarranted assumption. The Applicant says that the assumption was the Tribunal's finding that the Applicant's attendance at Church in Australia was designed to enhance her protection visa application.

  7. The Applicant took exception to this, and was aggrieved that the Tribunal had made reflections upon her credibility.  She claimed that it was appropriate for a person with a strong religious belief to commence attending a Church of her religion soon after her arrival in Australia, and implied, at least, there was no connection between the Church attendance and the lodging of an application for a visa. 

  8. The Applicant said that the Tribunal should have made its own investigations about the genuineness of her Church attendance. The first point to be made is that whilst the Tribunal has the power under s.424 of the Migration Act to get any information that it considered relevant, but there is no obligation on the Tribunal to make its own independent inquiries.

  9. The Tribunal's conclusions that the Applicant was not a credible witness, and that her claims were fabricated, are, like all credibility findings, findings of fact.  I am referred by counsel for the Respondent, Mr Reilly, to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

  10. As long as the Tribunal's findings of fact were open to it, there is no jurisdictional error.  (See Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558] and [559], and also W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64] to [69]).

  11. In particular, the Court held that the opportunity to see a witness's demeanour whilst giving evidence is important in coming to a decision about the Applicant's credit. The Tribunal did, in its findings at page 84 and 85 of the Court Book, set out reasons why it did not believe that the Applicant was a credible witness.

  12. It must be made clear that the Court cannot review the merits of the Tribunal's decision. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]).

  13. What this means is that a Court conducting judicial review does not take a fresh look at the factual findings and decide whether on that evidence the Court would reach the same factual conclusion.

  14. The making of a finding of fact is a matter for the administrative decision maker, not the Court conducting judicial review. Whilst it does not appear on the material before me that there is a necessary connection between the lodging of the protection visa and the commencement of worshipping at a Church, the Court has not had the opportunity to hear the Applicant give evidence or cross-examine the Applicant on the facts.  That is not the function of the Court conducting judicial review.  It is a matter for the Tribunal.

  15. Even if the Tribunal made a wrong finding of fact, that is not a jurisdictional error.  I refer to Abebe v Commonwealth (1999) 197 CLR 510 at [137].

  16. The second ground is, in effect, a claim for merits review of the Tribunal's sub-s.91R(3) finding and it is not a matter that the Court can interfere with.  There is no jurisdictional error in that point. 

  17. The third ground is that the Tribunal failed to carry out its review on a bona fide basis. Counsel for the Respondent has submitted that this is a serious allegation. Failure to act in good faith is a matter that has been considered by both single Judges of the Federal Court and the Full Federal Court on a number of occasions.

  18. In SBBS v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] held that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved. At [45] the Court said that bad faith is not to be found simply because of poor decision making.

  19. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its tasks in a way which involves personal criticism. (See NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24]).

  20. In carrying out a review the Tribunal is obliged under s.414 of the Migration Act to carry out a review if an application is made under s.412 of the reviewable decision. Under s.415 the Tribunal has various powers and discretions given to it which are all the powers and discretions conferred by the Act on the person who made the decision. Under sub-s.420(2) the Tribunal in reviewing a decision was not bound by technicalities, legal forms or rules of evidence, and must act according to substantial justice in the merits of the case.

  21. Here the allegation is that the review was not carried out in the bona fide matter because the Tribunal made adverse findings on the Applicant's credibility. 

  22. Whilst it is easy to understand how an applicant could be distressed or aggrieved by an adverse credibility finding, the Tribunal's task is to assess the Applicant's evidence in order to be satisfied that the Applicant meets the necessary criteria for the award of a visa.  The Applicant says that her statement was prepared on the basis of truth, but the Tribunal Member would not believe her.

  23. The Tribunal Member has given reasons for this finding and no matter how hurtful those reasons are to the Applicant that does not establish jurisdictional error. The Applicant complained that the attitude of the Tribunal Member was not friendly, but that of itself, even if it were so, does not establish jurisdictional error.

  24. I am mindful of the fact that the Applicant is not legally represented in these proceedings. She had the benefit of free legal advice from


    Mr Ray Turner, a solicitor who is a member of the panel for legal advice operated by the Refugee Review Tribunal. Mr Turner drafted the Applicant's Amended Application for her.

  25. It is no part, however, of a panel member's function under the RRT Legal Advice Scheme to appear for an applicant. Consequently, the Applicant was not represented this day and I am mindful of the fact that the Minister was represented by a barrister and a solicitor, both of whom are very experienced in migration law.

  26. The Applicant told the Court that she was nervous at the Tribunal hearing, and indeed was too nervous to tell the Tribunal that she was nervous.  That is easy to understand. The Applicant may have been nervous in these proceedings today. 

  27. In my view, where an applicant is not legally represented it is incumbent upon the Court to examine the material to form its own independent assessment of whether an applicant may have an arguable case to make out jurisdictional error. I have read through the material myself with this in mind.   

  28. I am not satisfied that any arguable case can be made for any jurisdictional error.

  29. Whilst it appears to me that the Applicant, from my brief observation in Court, seems to be a very pleasant person who has behaved politely and respectfully throughout proceedings, she has not established any error on the part of the Tribunal that could be classified as jurisdictional error and would therefore take the decision away from being a privative clause decision under s.474 of the Migration Act.

  30. In my view the decision is a privative clause decision as defined in


    sub-s.474(2).  It follows that the application must be dismissed.

  31. There is an application for costs on behalf of the Respondent Minister.  In my view there is no reason why the Court should not follow the practice that costs follow the event. The Applicant has been wholly unsuccessful in her claim and the Minister has been successful. It is appropriate for a costs order to be made.

  32. The amount sought, which I understand to be inclusive of counsel's fees, is $4,500.00.  This is an application that was commenced prior to 1st December 2005, albeit by less than a week, and there were two mentions before the Registrar before the application came on for hearing today.

  33. The sum of $4,500.00 is an appropriate figure and well within the range that the Court would award.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  5 September 2006

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Cases Citing This Decision

1

SZHRG v Minister for Immigration and Citizenship [2007] FCA 189