SZHVE v Minister for Immigration

Case •

[2008] FMCA 205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVE v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 205
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.91R, 424A, 425,474
SZHVE v Minister for Immigration & Anor [2006] FMCA 1716
SZHVE v Minister for Immigration & Citizenship [2007] FCA 685
NAST v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1536
SBCC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 129
Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZKLG v Minister for Immigration & Citizenship [2007] FCAFC 198
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 231ALR 592
Applicant: SZHVE
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 2942 of 2007
Judgment of: Scarlett FM
Hearing date: 14 February 2008
Date of last submission: 14 February 2008
Delivered at: Sydney
Delivered on: 14 February 2008

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Shariff
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2942 of 2007

SZHVE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant is a citizen of the People's Republic of China.  He has applied to the Court for orders to set aside a decision made by the Refugee Review Tribunal on 15th August 2007 and handed down on 28th August 2007.  That decision affirmed a decision of a Delegate of the Minister for Immigration & Citizenship not to grant the Applicant a protection visa. 

  2. The Applicant asks the Court to issue a writ of certiorari quashing the Tribunal decision and to issue a writ of mandamus requiring the Tribunal to rehear his application for review and re-determine the matter according to law. 

  3. The Applicant claims that the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal incorrectly applied sub-section 91R(3) of the Migration Act.

Background

  1. The background of this matter is that the Applicant arrived in Australia on 27th April 2005.  On 9th May 2005 he applied for a Protection (Class XA) visa.  He claimed in his application that he had a well‑founded fear of persecution for a Convention reason because of his religious belief. 

  2. The Applicant claimed to have been born in a typical Christian family and he distinguished himself from those Chinese Christians who were supported by the Chinese government.  In his statement he expressed his hatred of the control of Christians in China by the Chinese government.  He claimed to have been talked to by the Government about his activities and he claimed to fear that the Government, if he were to return to China, would monitor his daily behaviour and he would not be able to practise freely as a Christian. 

  3. The Applicant claimed that he would be subject to persecution by the Chinese government and even though he may not be detained or imprisoned if he were to return. The Applicant stated that he felt the Government's spiritual persecution was unbearable. A delegate of the Minister refused the Applicant's application for a visa on 30th June 2005.

Application to the Refugee Review Tribunal

First RRT Hearing

  1. The Applicant then applied to the Refugee Review Tribunal for a review of the Delegate's decision. On 24th October 2005 the Tribunal, differently constituted from the Tribunal that made the decision under review by this Court, affirmed the Delegate's decision.  The Applicant then applied for judicial review to the Federal Magistrates Court.  On 20th December 2006 Cameron FM dismissed his application for review.  (See SZHVE v Minister for Immigration & Anor[1]). 

    [1] [2006] FMCA 1716

  2. The Applicant then appealed against the decision of the Federal Magistrates Court.  On 2nd May 2007 Rares J allowed the appeal and set aside the orders of the Federal Magistrates Court.  (See SZHVE v Minister for Immigration & Citizenship[2]). 

    [2] [2007] FCA 685

Second RRT Hearing

  1. As a result of his Honour's decision the Applicant's application for review was remitted to the Tribunal for reconsideration. On 29th May 2007 the Tribunal wrote to the Applicant's migration agent advising of that fact. The Tribunal wrote again on 12th June 2007. That letter invited the Applicant to attend a hearing of the Tribunal on 25th July 2007.  In that letter the Tribunal also said:

    “Please use the form or attach additional information if there are any requests for new information you wish the Tribunal to consider. Any documents or written arguments sent to the Tribunal should be in English or be translated by a qualified translator.”[3] 

    [3] See Court Book at page 126

  2. The Applicant attended the hearing and gave evidence with the assistance of a Mandarin interpreter. The Applicant produced photographs to the Tribunal relating to his religious observances in China.  He also tendered a reference from an employer.  He produced his Chinese passport to the Tribunal. 

  3. The day after the hearing on 26th July 2007 the Tribunal wrote to the Applicant's migration agent. The migration agent, of course, was the authorised recipient of the Applicant.  The letter was headed “Invitation to Comment on Information in Writing” and invited the Applicant to comment on information that the Tribunal considered would, subject to any comments he might make, be the reason or a part of the reason for affirming the decision that was under review. 

  4. The letter then set out the information upon which the Tribunal sought comments. There were 10 numbered pieces of information relating to the Applicant's application for protection visa and his evidence at the hearing before the first Tribunal and also before the Tribunal whose decision is under review today. 

  5. The letter went on to tell the Applicant that the information was relevant for four reasons:

    ·    The Tribunal, on the basis of inconsistencies between the information provided to the Department and the information you provided at the review stage, may disbelieve your claims and find that you have not been truthful and/or credible;

    ·    The Tribunal, on the basis of inconsistencies in your evidence at the review stage, may disbelieve your claims and find that you have not been truthful and/or credible;

    ·    The Tribunal may find that you have sought to introduce new belated claims throughout the review process to overcome the concerns expressed by the delegate and the Tribunal as previously constituted; and

    ·    The Tribunal may find that you have sought to introduce new belated claims throughout the review process in order to strengthen your claims to secure a protection visa and that you have not been truthful and/or credible.[4] 

    [4] See Court Book at page 147

  6. The letter invited the Applicant to give comments in writing by 9th August 2007. The Applicant, with the assistance of his migration agent, provided written comments by means of a letter dated 8th August 2007.  The letter provided comments in reply to each of the 10 points in the Tribunal's letter. 

  7. The Tribunal handed down its decision on 28th August 2007.  A copy of the Tribunal decision record can be found at pages 157 through to 179 of the Court book. 

  8. In the decision the Tribunal set out a summary of the Applicant's written claims prepared by the first Tribunal and pre-hearing submissions and information given by the Applicant at the hearing.  The Tribunal also set out a quite extensive summary of the Applicant's evidence to the Tribunal hearing on 25th July 2007.  The Tribunal also referred to its letter of 26th August which it described as a notice under section 424 A of the Act and also set out the Applicant's response submitted by the advisor on 9th August 2007, although I noticed that it was dated on the 8th August 2007. 

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons can be found at pages 173 through to 179 of the Court book. 

  2. The Tribunal accepted that the Applicant was a national of China, having sighted a copy of passport at the Tribunal hearing.  However, the Tribunal formed a negative view of the Applicant's credibility and had this to say:

    “The applicant did not impress the Tribunal as a credible and truthful witness. In reaching this view the Tribunal has had regard to the significant inconsistencies between his written claims and the oral evidence he provided at the first and the second Tribunal hearings as well as other reasons detailed below.” [5]

    [5] See Court Book at page 174

  3. The Tribunal then set out eight different reasons in some detail as to why it had formed a negative view of his credibility. The Tribunal took into account the Applicant's original application for a visa, the evidence he provided to the first Tribunal hearing, the evidence he provided to the second Tribunal hearing and the Applicant's response to the Tribunal's s.424A letter. The Tribunal went on to say:

    “Eighth, the totality of the applicant's evidence shows a propensity to fabricate claims and tailor and shift evidence in a manner which achieves his own purpose. In reaching this view the Tribunal has had regard to the significant inconsistencies between the evidence he provided to the Department and his oral evidence at the first and the second hearings.”[6] 

    [6] See Court Book at page 177

  4. The Tribunal went on to consider the two photographs that the Applicant submitted in support of his case and was not satisfied that the photographs established that the Applicant was a member of the Christian sect in China of which he claimed to be a member, a sect known as “The Shouters”. The Tribunal also considered documents submitted to the first Tribunal hearing relating to the Applicant's attendance at church in Australia. The Tribunal considered the Applicant's claims to have attended church services in Australia.  However, the Tribunal had this to say:

    “However, having regard to the applicant's overall credibility or lack thereof, the Tribunal is of the view that his conduct in Australia has been designed to assist him in his endeavour to remain in this country by strengthening his case for a Protection visa.  Section 91R(3) provides that any conduct engaged in by an applicant in Australia must be disregarded in determining whether he or she has a well‑founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention. Given the fundamental lack of credibility within the applicant's evidence, the Tribunal is not satisfied that his conduct in Australia has been otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention.  Accordingly, the Tribunal must disregard the conduct engaged in by the applicant in Australia pursuant to s.91R(3) of the Act.”[7] 

    [7] See Court Book at pages 177 – 178.

  5. The Tribunal was not satisfied that the Applicant's fear of persecution in China was well‑founded and it was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention. 

  6. The Tribunal found the Applicant did not satisfy the requirements of sub-section 36(2)(a) of the Migration Act for a Protection visa. The Tribunal affirmed the decision not to grant the Applicant Protection (Class XA) visa.

Application for Judicial Review

  1. The Applicant seeks judicial review of the Tribunal decision from this Court. The grounds of the application relate entirely to a claim that the Tribunal decision was affected by jurisdictional error as it incorrectly applied sub-section 91R(3) of the Act. The Applicant particularised his ground of review as follows:

    “The applicant submitted to the Tribunal evidence showing his religious practice in Australia. The Tribunal gave no consideration to such evidence as it was satisfied that for the purposes of subsection 91R(3) of the Act that his conduct in meeting regularly with church in Australia since June 2006 has been engaged in otherwise than for the purpose of strengthening his claim to be a refugee. 

    The applicant claims that his purpose of engaging in church conduct is not for strengthening his refugee claims. 

    The Tribunal failed to invite the applicant to comment on this information and failed to give the applicant an opportunity to establish his purpose of church activities.” 

  2. The Applicant did not file any written outline of submissions, but attended Court and made oral submissions.  He told the Court that he had attended religious activities in China before he arrived in Australia.  He said he also attended religious activities since he arrived here.  He said this was not to obtain residency status in Australia because it had been his religion since he was little.  He said at the second hearing he also provided photographs which showed he attended religious services in China when he was little, but the Member of the RRT said there was no date printed on the photo.  The photos were old photos and he asked to be given a fair trial. 

  3. A written outline of submissions was submitted on behalf of the First Respondent - the Minister for Immigration & Citizenship. In that written outline which was prepared by Mr Shariff of counsel. The Applicant's grounds of review have very helpfully been divided into four grounds.  I am satisfied that the characterisation of the Applicant's grounds in this way is appropriate and the single ground has, in effect, been divided into four sub-grounds. Mr Shariff set them out in his submission and I propose to adopt those sub-grounds which are as follows: 

    a)Ground 1 - The second Tribunal failed to consider the Applicant's evidence about his religious practices in Australia.

    b)Ground 2 - The second Tribunal incorrectly applied s.91R(3) of the Migration Act.

    c)Ground 3 - The second Tribunal failed to invite the Applicant to comment on information.

    d)Ground 4 - The second Tribunal failed to give the Applicant an opportunity to establish the purpose of his activities in Australia.

    The basic premise of the Minister's submissions is that all of the grounds for review must fail. 

Ground 1

  1. Mr Shariff submitted that the first ground, claiming that the Tribunal gave no consideration to his religious activities in Australia, was factually misconceived and should fail at that stage. 

Ground 2

  1. As to Ground 2, the alleged misapplication of s.91R(3) of the Migration Act, Mr Shariff submitted that it is the Applicant who bears the burden of satisfying the relevant decision maker that his or her activities in Australia should not be disregarded by the decision maker. (See NAST v The Minister for Immigration & Multicultural & Indigenous Affairs[8] at [26] and SBCC v Minister for Immigration & Multicultural & Indigenous Affairs[9] at [39] ). 

    [8] [2002] FCA 1536

    [9] [2006] FCAFC 129

  2. It was submitted that the Tribunal had considered the Applicant's evidence but was not satisfied that the Applicant's evidence established that he had engaged in those religious activities for a purpose other than strengthening his claims to be a refugee. The Tribunal reached that situation, the state of not being satisfied, for the reasons it set out, being the Applicant's fundamental lack of credibility.  Accordingly the Tribunal was obliged to disregard that evidence.

  3. There was also a letter from the Applicant's employer. The Tribunal gave that no weight again based on the Applicant's lack of credibility.  The Tribunal had made a finding that the evidence that the Applicant showed a propensity to fabricate claims and tailor and shift evidence to achieve his own purpose and therefore the Tribunal was entitled to disregard corroborative evidence.  I am referred to the decisions of Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002[10] at [12] and [49], also WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs[11] at [52]). There was no jurisdictional error, it is submitted, in the Tribunal acting in that way. 

    [10] (2003) 198 ALR 59

    [11] (2003) 76 ALD 597

Ground 3

  1. As to Ground 3, which was a ground alleging a failure to invite the Applicant to comment on information, Mr Shariff pointed out that whilst the Applicant did not identify the information that formed the subject of that ground, it would appear that the information was either information about the Applicant's religious activities in Australia or that the second Tribunal intended to disregard evidence of his religious activities in Australia. The information considered by the second Tribunal in relation to the Applicant's religious activities was information provided by the Applicant and the exemption in sub-section 424A(3)(b) of the Act applied. (See Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry[12] at [17] – [20] and [34] – [41]). 

    [12] (2001) 110 FCR 27

  2. In any event, the Tribunal had complied with s.424A by means of its letter of 26th July 2007 and even though that information was provided after the Tribunal hearing this is not inconsistent with the operation of s.424A or s.425 of the Migration Act. (See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[13]; SZKLG v Minister for Immigration & Citizenship[14] at [33] – [36]). 

    [13] (2005) 215 ALR 162

    [14] [2007] FCAFC 198

  3. In any event, the meaning of the word “information” in sub-section 424A(1) does not extend to the existence of doubts, inconsistencies or the absence of evidence. (See SZBYR v Minister for Immigration & Citizenship[15] at [18]). 

    [15] (2007) 235 ALR 609

  4. The Tribunal was not therefore obliged to inform the Applicant that the evidence about his religious activities in Australia would be disregarded and it was not obliged to invite the Applicant to comment on that evidence. The Tribunal had, in any event, written to the Applicant's authorised recipient, his migration agent, on 26th July 2007 about the inconsistencies in his evidence and had put him on notice that the Tribunal might disbelieve his claims or find that the Applicant was not truthful or credible. 

Ground 4

  1. As to Ground 4 it was submitted that which is a claim that the Tribunal failed to give the Applicant an opportunity to establish the purpose of his religious activities in Australia, Mr Shariff submitted there was no substance to that claim. The Tribunal had written to the Applicant on 12th June 2007 in accordance with s.425 of the Migration Act inviting the Applicant to appear at a hearing and present arguments.

  2. The Applicant did attend the hearing. He gave evidence and he provided documents in support of his claim. The Tribunal decision record makes it clear that during the hearing the Applicant was given an opportunity to explain his religious activities in Australia. The Applicant did do so but the Tribunal came to the conclusion that the Applicant was not a credible or truthful witness and was not thereof satisfied that the Applicant had met the onus upon him in s.91R(3) to satisfy the Tribunal that his religious activities were entered into for a purpose other than to strengthen his refugee claims.

  1. Mr Shariff submitted that there could be no suggestion that the Tribunal had failed to give the Applicant a sufficient opportunity to give evidence and make submissions about issues that were determinative in the Tribunal's ultimate decision. (See SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[16]). 

    [16] (2004) 231ALR 592

  2. After oral submissions from Mr Shariff of counsel, who appeared for the Minister, the Applicant addressed the Court in reply.  He said that the RRT did not believe him. He said the RRT thought the reason he attended religious services in Australia was to get residency status.  He says he still attends the services, he goes to church every week. He also claimed that his migration agent had not translated his documents properly. 

Conclusions

  1. I have considered all of the evidence. I have considered the submissions.  I have considered the claims.  The Applicant's claim that the Tribunal failed to consider his religious activities in Australia has not been made out.  It is clear from the Tribunal decision record that the Tribunal did consider the Applicant's evidence about his religious practices in Australia.

  2. The Tribunal considered the Applicant's oral evidence, the documents submitted to the first Tribunal being a certificate of baptism, the Applicant's claims that he had attended church services in Sydney and also in Queensland and the Applicant's claim that he had visited the home of a church member called Brother Wu in Auburn every Friday.

  3. The Tribunal had set those claims out and had quite clearly considered them, therefore the Applicant's claim in Ground 1 has not been made out. 

  4. As to the Applicant's claim that the Tribunal misapplied sub-section 91R(3) of the Migration Act, I am also satisfied that that ground has not been made out. The Tribunal correctly set out the effect of sub-section 91R(3) relating to the Applicant's activities in Australia. In the long run the Tribunal was not satisfied that the Applicant had engaged in those activities other than for the purpose of strengthening his refugee claims, and the Tribunal was not satisfied on the basis of what it described as the Applicant's overall credibility or lack thereof.

  5. The Tribunal referred to the fundamental lack of credibility within the Applicant's evidence.  It is quite clear that the Tribunal decision rests very firmly on a finding of credibility by the Tribunal which was adverse to the Applicant. Credibility, of course, is a factual matter which is a matter for consideration by the Tribunal. There was certainly evidence before the Tribunal that would entitle it to reach that finding. 

  6. The Applicant had claimed, in what has been helpfully described as Ground 3, that the Tribunal failed to invite him to comment on information relating to his religious activities in Australia. The information came from the Applicant himself. The Tribunal did give the Applicant the opportunity to comment on this information. The s.424A letter written to the Applicant on 26th July 2007 set out in considerable detail the evidence and information upon which the Tribunal sought his comments. The letter complied with the requirements of s.424A.

  7. The Applicant took the opportunity to comment on that information in the letter from the migration agent replying to all of the questions dated 8th August 2007.  It is clear that the Tribunal took this information into account, but was not satisfied that it should accept that information.  This was based on the fundamental lack of credibility of the Applicant's claims. I am satisfied that the third ground has not been made out either, in fact or in law and must fail. 

  8. The claim that the Tribunal failed to give the Applicant an opportunity to establish the purpose of his church activities which is characterised as Ground 4 in the submissions by counsel for the Minister has not been made out.  From as early on as 12th June 2007 when the Tribunal wrote to the Applicant inviting him to a hearing the Applicant was given the opportunity to provide his evidence to establish the purpose of his church activities. The Applicant gave evidence at the Tribunal hearing.  The Tribunal asked him questions about his evidence.  The Applicant was given the opportunity at the hearing to establish the purpose of his religious activities. 

  9. The Applicant complains that the Tribunal did not believe him, that is not difficult to understand, but the question of assessment of credibility is a matter for the Tribunal. There was evidence upon which the Tribunal could form the assessment that it did. 

  10. If the Applicant's ground -

    “The Tribunal failed to invite the applicant to comment on this information and failed to give the applicant an opportunity to establish his purpose of church activities”. 

    - is intended to assert that the Tribunal should have invited the Applicant to comment on the conclusions that it had reached, then it is misconceived.  If the Tribunal had come to the conclusion that it was not satisfied that the Applicant had engaged in those activities in Australia for a purpose other than strengthening his refugee claim, and it was not satisfied because of the fundamental lack of credibility of the Applicant's evidence, there was no requirement on the Tribunal to put that conclusion to the Applicant for his further comments. 

  11. Counsel for the Minister has referred the Court to the provisions of s.422B of the Migration Act which states that Div.4 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with. There is certainly nothing contained in Div.4 that gives an applicant the right to comment on conclusions drawn by the Tribunal from the Applicant's own evidence, and in any event there is nothing in common law natural justice that provides such a right.

  12. It was for the Applicant to establish his case.  It was for the Applicant to satisfy the Tribunal that he met the requirements for a protection visa. It was for the applicant to satisfy the Tribunal that he had engaged in religious activities in Australia for a purpose other than to strengthen his refugee claims.  The Applicant did not satisfy the Tribunal in this regard because of the Tribunal's finding of the fundamental lack of credibility in his evidence. 

  13. Once the Tribunal therefore was not satisfied it was obliged to sub-section 91R(3) to disregard that evidence. The Tribunal did not fall into jurisdictional error and none of the Applicant's grounds have been made out.

  14. The Applicant is not legally represented, and mindful of that I have read through the Tribunal decision and supporting documents in the Court Book in order to ascertain whether any arguable case for a jurisdictional error may be made out. I am satisfied that no arguable case for jurisdictional error can be made out on the material before me.

  15. Accordingly the Tribunal decision is a privative clause decision as defined in sub-section 474(2) of the Migration Act. As a privative clause decision it is not subject to orders in the nature of certiorari or mandamus that the Applicant seeks. It is final and conclusive. It follows therefore that the application must be dismissed. I note that the Minister on a dismissal is seeking an order for costs.

  16. There is an application for costs on behalf of the First Respondent Minister in the sum of $4,400.00. This is an appropriate matter for costs as the Applicant has been wholly unsuccessful in his claim. The amount sought on the party and party basis is $4,400.00 which I consider to be an appropriate figure and within the scale of costs envisaged in the Federal Magistrates Court Rules.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  27 February 2008


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Cases Citing This Decision

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Cases Cited

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SZHVE v Minister for Immigration [2006] FMCA 1716
SZHVE v Minister for Immigration and Citizenship [2007] FCA 685
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536