SZHSM v Minister for Immigration
[2007] FMCA 1533
•6 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHSM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1533 |
| MIGRATION – Review of Refugee Review Tribunal decision – no failure to accord the applicant procedural fairness either at general law or pursuant to the Act – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.91R, 424A, 65, 36, 422B |
| Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZHSM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3526 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 September 2007 |
| Date of Last Submission: | 6 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application filed on 30 November 2005, and the amended application filed 31 May 2006, are dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3526 of 2005
| SZHSM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore – Revised from Transcript)
I have before me an application filed on 30 November 2005, and amended on 31 May 2006, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 28 October 2005 and handed down on 17 November 2005, which affirmed a decision of the delegate of the first respondent to refuse a grant a protection visa to the applicant.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 2 April 2005. On 13 May 2005, she lodged an application for a protection visa. On 17 June 2005, a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 19 July 2005, the applicant applied for review of that decision.
I have before me a bundle of relevant documents filed by the Minister on 25 January 2006 and I will refer to these documents as the “Court Book.” The applicant’s claims to protection are contained in her application, which is reproduced in the Court Book (“CB”) at CB 1 to CB 26. I note also the application for review which is reproduced at CB 49 to CB 52.
The applicant claimed that she was a Christian who belonged to an underground church in China which was declared illegal by the authorities. She further claimed that the police in her locality in China were interested in her because she was spreading and promoting her religion and that the people in her village regarded her church as a cult and the police listened to the villagers. She also claimed to have been arrested and detained by the authorities in March 2003 but that she was not charged.
The Tribunal’s decision record is reproduced in the Court Book at CB 64 to CB 74. I note that the applicant appeared before the Tribunal on 21 October 2005 and gave evidence. The Tribunal found as follows:
1)It identified the relevant issue before it as whether the applicant was a member of an underground church and was persecuted, or faced persecution, in China because of her association with that church (CB 72.4).
2)It noted that at the hearing, the applicant was not able to demonstrate any level of familiarity with Christian beliefs apart from the basic claim, as the Tribunal stated, “about love and affection” (CB 72.10 to CB 73.1).
3)At the hearing, she did not provide sufficient information from which it could be inferred that she was a Christian (CB 73.2).
4)On the evidence before it, it was not satisfied that the applicant was a Christian. It followed, therefore, that it did not accept the applicant’s claims that she was a member of a Christian undergrounds church and that apart from claiming that her church was called “The Saints Church,” the applicant was not able to provide any other information to corroborate her claims that she in fact belonged to such church and she did not take up the opportunity of providing any supporting documentation from China (CB 73.3).
5)It did not find it plausible that the authorities in China would have arrested the applicant for associating with an underground church, nor that she was beaten, tortured and then released before charges were brought against her (CB 73.3 to CB 73.8).
In all, therefore, the Tribunal was not satisfied that the applicant satisfied the relevant statutory requirements and it affirmed the decision not to grant a protection visa to the applicant.
I have before me the original application filed 30 November 2005, which asserts, without particulars, a number of matters:
“1. The Tribunal had bias against me and believed that I was not a Chirstian without evidence or materials to support this belief.
2. The Tribunal mentioned: ‘The Tribunal does not find it plausible that would have arrested the applicant for associating with an underground church, beaten and tormented her and then released her before arranging to bring charges against her.’ This statement was the opinions of the Tibunal; the Tribunal did not refer to any independent information for the above mentioned statement or conclusion.
3. The Tribunal failed to consider my claims.”
(Errors in original)
I also have before me an amended application filed on 31 May 2006 which puts forward one ground:
“1. The Tribunal failed to carry out its statutory duty.”
At the hearing before the Court today, the applicant appeared in person with the assistance of an interpreter in the Mandarin language in the Fuzhou dialect. Mr T Reilly of Counsel appeared for the first respondent.
I should just note, as I told the applicant as noted by Mr Reilly in written submissions filed on behalf of the Minister on 31 August 2007, that the ground and particulars in the amended application are in a formulaic and template form often seen in this Court. Unfortunately, as I explained to the applicant, seen in this Court as recently as this morning.
The applicant made a number of assertions to the Court and I understood those assertions to be that the Tribunal did not carefully consider her case, that the Tribunal Member was biased, that the Tribunal Member did not judge her case based on her actual situation, and that the Tribunal Member did not give a judgment based on the evidence. Finally, the applicant asserted that her case was not considered in accordance with s.91R of the Migration Act 1958 (“the Act”).
The applicant repeated the ground set out in the amended application, that is, that there was a breach of s.424A of the Act, but the applicant explained that her complaint was that the Tribunal did not tell her the reasons for the refusal prior to making its decisions such that she would thereby have the opportunity to comment before the Tribunal made its final decision. The applicant said that she lost a fair opportunity to “recite the application,” but I understood that to mean that she lost the opportunity to “fully put her claims.” In turn, I understood this to mean, in context, that she had lost the opportunity to explain her case before the decision was made.
On what is before the Court, I can only agree with submissions drafted by Mr Reilly, and I refer in particular to paragraph 5 of those written submissions. The Tribunal’s findings that the applicant was not a Christian and that her claim to have been arrested were not plausible are findings of fact and are for the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).
The Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 68 to CB 70. The applicant has provided no evidence whatsoever to the Court to challenge the Tribunal’s account of what occurred at the hearing. The Tribunal found that the applicant was not a Christian. This was based on what the applicant herself said at the hearing before the Tribunal and the absence of any credible basis in her claims to support any inference that she was a Christian.
Having arrived at this conclusion, the Tribunal also found that she was not a member of an underground Christian church, as she claimed. Indeed, beyond this, the Tribunal found that her claim to have been arrested was not plausible. All these findings were open to the Tribunal on the evidence that was before it and, as Mr Reilly submits, the Tribunal gave reasons. Ultimately, the Court cannot review the merits of the Tribunal’s decision, as I tried to explain to the applicant during the course of the hearing today (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).
The amended application before the Court contains a sole ground which asserts that the Tribunal failed to carry out its statutory duty, and this is particularised with reference to s.424A of the Act. The particulars, however, do not identify the information that is said to have been required to have been put to the applicant in writing pursuant to s.424A of the Act.
The Tribunal’s conclusion that the applicant was not a person to whom Australia owed protection obligations under the Refugee Convention was, as mentioned above, based on the view that it took of the applicant’s evidence at the hearing. What the applicant put to the Tribunal at the hearing plainly comes within the exception contained in s.424A(3)(b) of the Act, which plainly operates to exclude the operation of s.424A(1) of the Act.
The Tribunal’s view was also that the applicant’s claims in total did not provide a credible basis for an inference to support her claim to be a Christian. Given the meaning of the word “information” in the context of s.424A(1) of the Act, as set out by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) (and I refer here, as Mr Reilly has done in his written submissions, to paragraph [17] of that decision), I cannot see that on the material before me, and nor has the applicant identified any information that falls within the ambit of “information” as explained by the High Court, the obligation pursuant to s.424A(1) of the Act has been engaged.
Further, the Tribunal’s subjective evaluation of the applicant’s evidence and indeed, its valuation of the applicant’s claims in the sense of those claims being lacking or deficient in some way, is not “information” for the purposes of s.424A(1) of the Act. The line of authority as to the Tribunal’s subjective evaluation in this regard includes Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, and most recently, the High Court in SZBYR, with reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 581.
To the extent that the Tribunal made some reference in its decision record to country information before it (and I refer to what is set out at CB 70.7 and then CB 72.3), such country information cannot be said to be a part of the reason for affirming the decision under review. Having regard to what the High Court said in SZBYR at paragraph [17], the country information referred to by the Tribunal, if anything, supported the applicant’s claim in that it said that members of unregistered churches in China had been subjected to persecution. To paraphrase what the High Court said at paragraph [17], one would think that this information would have been a step towards rejecting, not affirming, the decision under review. Beyond this, and in any event, such country information plainly falls within the exception set out in s.424A(3)(b) of the Act from the obligations pursuant to s.424A(1) of the Act.
Before the Court today, the applicant sought to explain her grievance in this regard by stating that the Tribunal failed in its obligation pursuant to s.424A(1) of the Act by not telling her the reason for its refusal before making its decision so that she could comment on this, and that she saw this as a lost opportunity to “recite her application” or to put her claims to the Tribunal.
First, as Mr Reilly submitted, it is a misstatement to say that s.424A of the Act requires the Tribunal to give its evaluations and its reasoning and thought process to an applicant prior to making what can be described as its final decision. Section 424A of the Act plainly does not oblige the Tribunal to do this and the Tribunal’s obligation pursuant to s.424A(1) of the Act is to provide the applicant with “information” which would be the reason, or part of the reason, for affirming the decision under review. Plainly, therefore, the evaluation that the Tribunal makes of the evidence before it is not information falling within the understanding of that term as it applies to s.424A(1) of the Act (see SZBYR at [17]). This ground (and the applicant’s grievance contained in this ground) is plainly not made out.
Given that the applicant appeared unrepresented before me today, I did give her some leeway in putting all her grievances before the Court, that is, her grievances about the Tribunal’s decision before the Court. In this regard, I did consider whether any of those matters raised by the applicant, or in her originating application, might be of assistance to her.
The applicant said to the Court today that the Tribunal Member was biased against her, and this is set out as a complaint in ground one of the original application. In particular, the applicant complains that the Tribunal was biased against her in believing that she was not a Christian without evidence or materials to support her claim. It is trite to note that the applicant’s mere assertion that the Tribunal did not believe her is plainly not evidence of bias on the part of the Tribunal (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102). There is nothing before the Court by way of evidence, or indeed otherwise, to show that the Tribunal’s mind was so committed to a conclusion already formed so that it was incapable of being persuaded differently. On what is before the Court, the Tribunal’s mind was open to persuasion and plainly, at the hearing with the applicant, the applicant was unable to persuade the Tribunal to accept that she was a Christian.
The applicant also complains, as I understand the complaint, that there was no evidence or materials to support the Tribunal’s belief that she was not a Christian. In this regard, I note that the evidence on which the Tribunal concluded that the applicant was not a Christian was on her own evidence as given by her at the hearing. The deficiency in this regard is the deficiency in the applicant’s own claims. In my view, on what was before the Tribunal, it was open to the Tribunal to take the view that it took of the applicant’s evidence and the Tribunal gave reasons for so concluding. Nor, for that matter, was the Tribunal necessarily required to proceed from a basis that the applicant was a Christian and then to look for evidence to disprove that fact.
As is well established and understood, the Tribunal’s statutory obligation with reference to ss.65 and 36(2) of the Act, requires the Tribunal to reach a requisite level of satisfaction that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Convention. Simply, in the case before the Court now, for the reasons that it gave, the Tribunal was unable to reach that level of satisfaction. This complaint, and all its iterations, does not assist the applicant before the Court today.
The applicant also complains that the Tribunal’s opinion that it was not plausible that the applicant would have been arrested, beaten, tortured and then released without charge, was made without reference to independent information. This ground, if it can be described as such, does not succeed.
First, the Tribunal’s finding that the applicant was not a Christian and therefore not a member of an underground Christian church was sufficient to dispose of the application to it. Second, to the extent that the applicant complains that the Tribunal formed this opinion without any reference to any independent information, I note that the choice and use of independent country information is a matter for the Tribunal, and it is clear that the Tribunal did have independent country information before it that revealed that some members of unregistered churches had been subject to persecution in China. In particular, the Tribunal made reference to a US State Department Report of February 2004 (CB 72), which is reproduced in the Court Book at CB75. It was, however, a matter for the Tribunal that it found that the applicant’s assertion in relation to her detention, her treatment and her being released, were implausible.
I cannot see that the Tribunal was required to refer to any independent information in this regard. Even beyond that, neither the original application, nor did the applicant today, point to any specific country information that it could be said that the Tribunal should have referred to. Nor is there anything to show that the applicant referred the Tribunal, either at the hearing or otherwise, to any such country information which it could be said that it should have had regard to and failed to do so. That the Tribunal formed an “opinion,” to use the words in the original application, is of course the very function that the Tribunal is required to perform in the exercise of its jurisdiction. That is, the Tribunal is required to consider the claims and evidence that is put before it, and to make findings of fact upon which its conclusions can be based: the conclusion as to whether the applicant is owed protection in Australia or not.
Both in the original application and before the Court the applicant said that the Tribunal did not consider her claims or further, did not consider her claims carefully. Neither in the original application, nor before the Court today, did the applicant say what claims, or what aspects of the applicant’s claims, the Tribunal failed to consider. On the material before the Court now it is clear that the Tribunal well understood the applicant’s claims and rejected critical parts of those claims for reasons which it gave. In all the circumstances, this complaint, in my view, does not rise above a request for impermissible merits review (Wu Shan Liang).
Considering some of the assertions put to the Court today, that the Tribunal did not consider her case with s.91R of the Act in mind, I note that s.91R of the Act deals with what can be taken to be “persecution” for the purposes of the Act, with reference to Article 1A(2) of the Convention. Nothing that the applicant has said toady, or indeed, in the material before the Court, is there revealed any failure by the Tribunal in any connection with s.91R of the Act.
In relation to the assertion that the Tribunal did not base its judgment on evidence or that the Tribunal refused the application without evidence, these are matters with which I have dealt above.
There is one other matter. The applicant claimed that she had lost the fair opportunity to recite her application. Plainly, that was put in the context of not having been given the opportunity to comment on the Tribunal’s adverse views and evaluation of her evidence. But even if that were to be applied more broadly, I cannot find within the relevant statutory obligations in relation to procedural fairness, as contained in Division 4 of Part 7 of the Act, such obligation, noting that this is a case to which s.422B of the Act applies.
I cannot see that there was any failure in relation to those relevant statutory procedural fairness obligations on the part of the Tribunal. Nor for that matter can I see that there was any failure at general law. The Tribunal, upon receipt of the applicant’s application, wrote to the applicant and put her on notice that her claims, on the basis of the information before it, were not such as to cause the Tribunal to make a decision in her favour. The Tribunal therefore invited her to a hearing specifically, as it said, for the purposes of enabling the applicant to give oral evidence and present arguments in support of her claim.
The applicant attended at that hearing. There is nothing from the only evidence before the Court of what occurred at that hearing to show that the Tribunal did otherwise than discuss with the applicant matters relevant to her claims. Indeed, I note that at the conclusion of the hearing the Tribunal provided the applicant with a further opportunity to provide any evidence to corroborate her claims and the applicant was unable to provide any further information. The issue is that the Tribunal did provide the applicant with a further opportunity even at that stage. I cannot see that, in terms of fairness, whether within the statutory obligations or more broadly, that there was any failure by the Tribunal.
In all, I cannot discern jurisdictional error in the Tribunal’s decision, either by way of what is set out in the originating application or in the amended application. Considering the matters put by the applicant today, or otherwise, I cannot discern jurisdictional errors and the application to the Court is therefore dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 14 September 2007
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