SZIBK v Minister for Immigration and Multicultural Affairs
[2006] FMCA 1167
•14 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1167 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – whether the RRT breached s.91R(3) of the Migration Act 1958 (Cth) considered – RRT found that the applicant attended church in Australia to enhance his protection visa claims of religious persecution in China – RRT erred by failing to disregard the applicant’s conduct in Australia – RRT decision independently supported by rejection of the applicant’s claims about his conduct in China. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 SZHAY v Minister for Immigration [2006] FMCA 261 VWFP and VWFQ v Minister for Immigration [2006] FCA 231 |
| Applicant: | SZIBK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG65 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 14 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr S Lloyd |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $5,000, in accordance with rule 44.15(1) and paragraph 1(c) of Part 2 to Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG65 of 2006
| SZIBK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. I adopt as background for the purposes of this judgment paragraphs 2 to 7 of the Minister’s written submissions:
The applicant, citizen of China, arrived in Australia on 15 November 2004.[1]
On 24 December 2004, the applicant lodged an application for a protection visa.[2]
On 16 May 2005, the application was refused by a delegate of the Minister.[3]
On 29 June 2005, the applicant applied for a review in the RRT.[4]
The applicant attended a hearing before the RRT held on 30 September 2005 and 9 November 2005.[5]
The RRT handed down its decision on 6 December 2005.[6] The applicant claimed that he was involved in an underground Christian church in China, which involvement had led to his becoming a person of adverse interest to the PSB and that he subsequently left China illegally. In short, the RRT did not accept that claim. It concluded that his involvement with a church in Australia, which it accepted had occurred, was superficial in nature and contrived. It considered that he attended the church to enhance his protection visa application. The RRT rejected his claim relating to his proselytising in China finding it to have been made up by the applicant. This necessarily led to the rejection of his claim to be of interest to or to have suffered difficulties with the authorities for the reasons he had advanced.
[1] court book, page 95.1
[2] court book, pages 1-37
[3] court book, pages 45-62
[4] court book, pages 63-69
[5] court book, pages 72-75, 85-86
[6] court book, pages 94-106
These proceedings began with a show cause application, filed on 6 January 2006. That application asserted notification of the RRT decision on15 December 2005. On that basis I find that the application was filed within time.
When the matter came before me for the first time on 7 February 2006 it was not clear to me whether the application disclosed an arguable case. For that reason I made orders for a preliminary hearing, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). That hearing took place on 4 April 2006. At that time it appeared to me that there was only one arguable legal issue; that is, whether the RRT breached s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”). I ordered the Minister to show cause why relief should not be granted in respect of what I saw to be the asserted breach of that section in relation to the applicant’s conduct in Australia as a member of the Padstow Chinese Congregational Church. I also ordered both parties to file and serve an outline of written submissions. Only the Minister has done so.
For the purposes of today’s hearing I received, as evidence, the court book filed on 14 February 2006. The Minister’s written submissions deal with all of the grounds of review advanced by the applicant in his amended application filed on 14 March 2006. I agree with and adopt for the purposes of this judgment paragraphs 8 to 17 of those written submissions:
The applicant takes issue first with the RRT’s conclusion that he had difficulties recalling the names of persons he said were his priests. There is no evidence about what was said at the RRT hearing that might make out any factual error (which would not be a jurisdictional error).
Moreover, the RRT did not ultimately reject the applicant’s claim of having attended the relevant church. Rather it did not accept his motives for having done so were genuine. That was a question of fact for the RRT.
424A
The applicant’s second ground relies upon an alleged failure to comply with s.424A of the Act. It is first said that the RRT’s decision “mainly relied on some information or issues arising from the RRT’s hearing, including two witnesses’ statement”.
This is not correct. The RRT found that the two witnesses were not of assistance to the applicant in relation to the matters of concern to the RRT but they were not adverse. They were of no assistance because they had not discussed religion with the applicant and, hence, were unable to give evidence about the nature of such discussions and the applicant’s views. The witnesses had testified that the applicant had attended church and this was accepted.
This is not a case where the applicant was disbelieved because of what the witnesses said; it was simply a case where the witnesses were unable to assist the applicant. No notice under s.424A is required in this context: VWFP and VWFQ v Minister for Immigration [2006] FCA 231.
There is no obligations under s.424A to disclose particulars of general country information.
425
Without conceding that the RRT is under an obligation to ensure that the applicant understands, completely and clearly, what the actual issues arising in relation to the decision under review are, it seems clear that this was done in this case.[7]
In any event, it is for the applicant to advance what he wished at the hearing and for the RRT to assess that material: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]. There is no duty to disclose thought processes.
Test
The RRT clearly did not ignore the core evidence of the applicant’s witnesses. Some of their evidence was accepted (such as the applicant’s attendance of church). However, as neither of the witnesses had really discussed religion with the applicant, their evidence was not really relevant to the RRT’s central concerns.
The RRT was under no obligation to contact the applicant’s priest about the level of the applicant’s religious knowledge. It may be noted that the applicant had provided a one sentence reference from the priest, which got the applicant’s name wrong and his gender wrong.
[7] court book, pages 102-103
The Minister’s submissions also deal with the issue of whether the RRT breached s.91R(3) of the Migration Act as follows:
18.The Court has indicated that it is interested in receiving submissions as to whether the RRT has complied with s 91R(3) of the Migration Act.
19.The Court has drawn the parties attention to the decision in SZHAY v Minister for Immigration [2006] FMCA 261. In that case, the Court relevantly said at [37]:
Another question is whether, if an applicant introduces information about his or her conduct in Australia, and the RRT is not satisfied that the conduct was engaged in otherwise than for the purposes of enhancing an applicant’s refugee claims, decision makers are entitled to use that information to reject an application. In my view, the answer to that question is no. If information is required to be disregarded pursuant to s.91R(3) it must be disregarded for all purposes. It would be unjust and inconsistent with the language of the section to permit information introduced by an applicant relating to his or her conduct in Australia that was engaged in to strengthen refugee claims to be used by a decision maker to dismiss an application but not to grant it. This is not a purely academic question. Information about conduct in Australia may be intended to support a protection visa application by enhancing claims to be a refugee and may have precisely the intended effect. The information may also have the opposite effect by damaging the applicant’s credibility. In either case the information must be disregarded unless the applicant discharges the onus imposed by s.91R(3).
20.If this construction were applied to the present case, there would be no breach of s.91R(3) and therefore no jurisdictional error. Here, the applicant gave evidence of conduct comprised by his attendance at church in Australia over a certain period. The RRT concluded that this conduct had been done in order to enhance the applicant’s protection visa application.[8]
21.The applicant then went on to consider whether the applicant’s claims in China were accepted. They were rejected for the reasons given, which all related to his claims concerning China and were not premised upon anything he did or did not do in Australia.[9]
22.It may be accepted that there are difficulties in construing s.91R(3). However, although it need not be determined in this case, it is not accepted that the analysis in SZHAY is completely correct.
23.Subsection 91R(3) directs the relevant decision-maker to disregard certain conduct engaged in by the applicant and not information about that conduct. Hence, if an applicant protested outside the Chinese Embassy in an attempt to develop a profile of adverse interest, the RRT is required to disregard the conduct. This means that the RRT cannot take into account the fact that the applicant engaged in such conduct in assessing whether the applicant is a refugee.
24.If the RRT had information that this putative applicant had undertaken the conduct in order to have an adverse profile because his other claims are all weak, this information would be something that the RRT could consider in relation to the other claims. This is because s.91R(3) does not direct the RRT to disregard “information introduced by an applicant relating to his or her conduct” (the expression used in SZHAY). It is not that broad. All that is required is that the conduct itself be disregarded. In this way, the relevant conduct may not be used by a tribunal to base a decision that a person is a refugee on a sur place claim arising from the relevant context; nor can it be used to support a conclusion that a person is a refugee because the relevant conduct is perceived to corroborate some claim concerning why the applicant was already a refugee.
25.The facts of this case do not make the difference in approaches to s.91R(3) relevant to this case. However, in short, s.91R(3) requires the RRT to disregard the fact that certain conduct was undertaken for the purposes of determining whether a person is a refugee; it does not require a tribunal to disregard the reasons underlying its conclusion about the motive of an applicant undertaking the conduct.
[8] court book, page 104.8
[9] court book, page 105.5
The applicant’s oral submissions were not directed to that issue. They were directed to matters of fact concerning the genuineness of his protection visa claims and a concern he appears to have that he was questioned unfairly about details of his Christian faith. The applicant’s submissions do not establish any jurisdictional error.
Leaving aside the issue of a possible breach of s.91R(3), in my view the RRT proceeding was fair and the conclusions reached by the RRT were open to it on the material before it. The question of whether s.91R(3) was breached is a difficult one to answer. The section is, in its terms, difficult to construe. I expressed views in SZHAY v Minister for Immigration [2006] FMCA 261 about the operation of section 91R(3). I have not changed those views but this case requires some expansion of them. This is a case, not of a sur place claim, but of an applicant seeking to corroborate claims of persecution in China for reasons of religion by pointing to like activities in Australia. Relevantly, the applicant sought to corroborate his claim that he was a practising Christian in China by attending church in Australia. The applicant also sought to corroborate his claim that he studied the Bible in China by claiming he also studied the Bible in Australia.
The applicant’s claim was that he had a well-founded fear of persecution in China by reason of his religious practice there, not that he would be persecuted in China by reason of his religious practice in Australia. Consistently, with the views I expressed in SZHAY, s.91R(3) nevertheless has a potential operation. In my view, the section operates in relation to conduct in Australia, whether it relates to a sur place claim or whether the conduct merely is intended to have a corroborative effect in relation to claims of conduct in the country from which the applicant has fled.
The presiding member dealt with the applicant’s two claims concerning his conduct in Australia in different ways. On pages 104 and 105 of the court book, the presiding member rejected the applicant’s claims of having studied the Bible over five years, four years in China and one year in Australia. The presiding member found that the applicant had fabricated that claim. In my view, the presiding member was not required to disregard the applicant’s conduct of having allegedly studied the Bible in Australia because the factual claim was rejected. There is, in my view, no obligation on decision makers to disregard conduct engaged in, in Australia, unless the decision maker accepts that the conduct, in fact, occurred. Section 91R(3) relates to established conduct, not asserted conduct which is disbelieved.
However, the presiding member did accept the applicant’s claim of having attended church in Australia. The presiding member dealt with that claim in the following way at page 104 of the court book:
The Tribunal considered the applicant’s claim that he attended the Padstow Chinese Congregational Church in Sydney for approximately one year. It accepts that he attended the church. However, the Tribunal is not satisfied that the applicant attended the church because he is a committed Christian or that he went there to learn about the Bible or Christianity. He was unable to demonstrate to the Tribunal that he had a meaningful connection with the church or that he acquired any meaningful information regarding the Bible and Christianity while he was there. The applicant had difficulty recalling the names of the priests, although he claims to have consistently attended the church for almost one year, and his current priest appears to have limited awareness of him. The Tribunal has formed the view that if indeed the applicant was a Christian, and he attended this church because he wanted to develop and express his religion, he would have been able to provide meaningful details regarding his religion and demonstrate a stronger connection with the church. The Tribunal has formed the view that the applicant’s involvement with the church has been superficial and contrived. It finds that he attended the church to enhance his protection visa application.
Having reached that conclusion then, prima facie, the RRT was required to disregard the applicant’s conduct in attending church in Australia. However, Mr Lloyd, for the Minister submits that there is a distinction to be drawn between disregarding conduct and disregarding information about conduct. He used, as an example, the hypothetical situation of a tribunal receiving anonymous information that an applicant had attended church in Australia for the purpose of attempting to bolster a weak claim of persecution. My Lloyd submits that, while in that hypothetical example, a decision maker may be required to disregard the conduct, the decision-maker is not required to disregard the reason for the conduct.
The difficulties with that proposition are first, that the more closely related the information is to the fact of the conduct, the harder it would be for decision makers to draw a meaningful distinction. The other objection is similar to that that I raised in SZHAY, that it ought not to be possible for decision makers to use information about conduct in Australia to reject an application when it is not available to grant it. that would be inconsistent with the language of s.91R(3) as well as being unjust. Mr Lloyd deals with the second objection by agreeing with a proposition from me, that surrounding information may work in favour of an applicant as well as against him. For example, an applicant may seek to bolster a protection visa claim by engaging in conduct in Australia, not because the claim is weak but because the applicant is driven to do so by reason of his fear. That fear may be well-founded. If, to use another hypothetical example, an applicant attends church in Australia because of a well-founded fear of persecution in his country of origin and seeks to bolster that claim, then a decision maker, on the basis of Mr Lloyd’s submission, would only be required to disregard the conduct, not the reason for it. In that hypothetical example, information relating to the intensity of the applicant’s fear would be available to support the protection visa claim. Although the distinction is conceptually difficult and would, in many cases, give rise to practical difficulties, I accept the proposition that the distinction is there to be made.
Nevertheless, having reached the conclusion that the applicant attended church in Australia to enhance his protection visa application, the presiding member was, on my view of s.91R(3), required to disregard at least the fact of that church attendance. It was not disregarded and the failure to disregard it points to jurisdictional error. If the applicant had made a sur place claim, then the error would probably be sufficient to warrant the provision of relief in the form of constitutional writs.
However, as I have already found, in this case the applicant was not making a sur place claim. He was using his conduct in Australia to corroborate his claims that he was a practising Christian in China. His fear of persecution related to his asserted conduct in China. All his claims relating to that conduct in China were disbelieved. As I have already found, the adverse credibility findings by the presiding member concerning the applicant’s claims in relation to his conduct in China were open to him on the material before him. Those findings completely and independently support the decision.
Accordingly, I find that the provision of relief should be refused.
I will order that the application be dismissed.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and paragraph 1(c) of part 2 to schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 August 2006
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