SZICR v Minister for Immigration
[2007] FMCA 1428
•22 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZICR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1428 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no absolute obligation on the part of the Tribunal to make further enquiries – no bias in Tribunal not making further enquiries – compliance with s.424A – compliance with s.425 – no jurisdictional error – application dismissed. |
| Migration Act 1958, s.424A, 65, 36(2), 425 |
| SZILK v Minister for Immigration and Citizenship [2007] FCA 185 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 27 M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 517 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZICR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3754 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 August 2007 |
| Date of Last Submission: | 13 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made to this Court on 15 December 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3754 of 2006
| SZICR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed in this Court on 15 December 2006, and amended on 29 March 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on
6 November 2006 and handed down on 16 November 2006, affirming the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 13 July 2005 and applied for a protection visa on 26 August 2005. A delegate of the respondent Minister refused to grant a protection visa on 6 September 2005. The applicant sought review of the delegate’s decision. The Tribunal, differently constituted, affirmed the delegate’s decision on 8 December 2005. The applicant sought judicial review of this decision. On 14 August 2006, by consent, this Court (McInnis FM) set aside the decision and remitted the matter to the Tribunal to be determined according to law (see the Court Book (“CB”) at CB 81). The subsequent Tribunal decision is currently before the Court.
The Applicant’s Claims
The applicant’s claims to protection are contained in his application for a protection visa (reproduced at CB 1 to CB 26, which includes the applicant’s statutory declaration reproduced at CB 24 to CB 26), in his application for review to the Tribunal (CB 51 to CB 54), and in a letter from the applicant to the Tribunal providing submissions (CB 60 to CB 61). I note that the applicant also provided documents to the Tribunal in support of his application which are reproduced at CB 63 to CB 70.
The applicant claimed that he faced religious and political persecution due to his involvement with an “illegal” “anti-government” Christian Church in China. Specifically, he claimed:
1)In or around January 2001, his “very good friend”, Mr Yang, arranged for him to attend a meeting for bible study in his home and he participated in his bible study group from then and was baptised in March 2001 (CB 107.4).
2)Mr Yang’s bible study group belonged to a family church “much different from those public churches recognised by the PRC authorities” and “particularly, the church strongly encourages our Christians to shake off the yoke of the Communist and its dictatorship”. He claimed therefore that the Church “not been tolerated by the PRC authorities” and was regarded by the Chinese government as “illegal, anti government” church. In order to escape persecution from the PRC authorities they had to “frequently change…meeting places for worships and Bible studies…divide into small gathering groups…” (CB 107.5).
3)On 9 January 2005, he and 10 members attended a Sunday worship at Mr Yang’s leather shop, “the activity was discovered by the PSB (security bureau) and many policemen came to us”. However, “in order to protect the priest and made him escape safely from a secret exit in the rear”, he and Mr Yang “led some of Christians to block those policemen” and as a result were arrested by the PSB (CB 107.7).
4)He was detained in the detention centre of the PSB, and “subjected to interrogations many times” and was “subjected to physical mistreatment”. He also claimed “[t]he PSB released other 6 members in one or two weeks…after their families paid penalty”, but they refused to release Mr Yang and the applicant because they were “both suspected to be key members in the family church” (CB 107.8).
5)On 1 March 2005, he was released by the PSB with the condition that he had to report to the local police station once a week (CB 107.9).
6)His sister hid him. He sought to leave China. He could not use his genuine name and personal details because he had been wanted by the PSB for not reporting to the local police station on time, and was therefore on the “blacklist”. He also claimed his parents and “other families” had been questioned many times” (CB 108.1).
7)In July 2005, he obtained a passport “using other person’s name”. He went to Zhuhai first, then Hong Kong and on 13 July 2005 he finally came to Australia (CB 108.2).
8)In Australia he “continually participates in worship in the local church” (CB 108.3).
The Tribunal’s Findings
The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 111.8 to CB 114.7. The Tribunal found:
1)In consideration of the evidence as a whole, it was satisfied that the applicant had fabricated a number of his claims in order to support his application for a protection visa. It reached an adverse view of the applicant’s credibility (CB 111.9).
2)In this, it relied on:
a)His “evasive and vague” evidence and explanations in relation to his identity and in relation to the identity in the passport that he used to come to Australian and an identity card which he subsequently claimed to be in his real name (CB 111.8 to CB 112.4).
b)The applicant’s responses to questions asked of him at the hearing concerning his claimed Christian beliefs which the Tribunal said “demonstrated little knowledge of the Bible and Christianity” (CB 112.5 to CB 113.3).
c)Its opinion that his responses to questions about being interrogated by the Chinese security authorities “were vague, general and lacked details” (CB 113.4 to CB 113.7).
d)Further, the Tribunal did not accept that the applicant was ever a Christian, that he was ever introduced to Christianity by Mr Yang, that he was baptised in March 2001, that he was involved in any underground Church, that he was ever a “group leader” or “convenor” of any group, that he was ever questioned and/or threatened by officials of the local religious administrative bureau, that he had ever been arrested by the Chinese authorities, that he had ever been ill-treated by the Chinese authorities, that he was ever suspected of being a key member in the family church, that he was released because his brother paid in Australian dollars a “Mr Shi”, that he was ever asked to report to the local police, that he was hiding in Guangzhou, that he used a passport in another name in order to be able to leave China, that he had been ‘blacklisted’ by the Chinese authorities, that any member of his family had been questioned about him, or that Mr Yang had been sentenced to seven years imprisonment.
3)In all, and for the stated reasons, it did not accept the applicant had suffered or would suffer any of the claimed harm (CB 113.6 to CB 113.9).
4)It noted that when it asked the applicant if he had any other evidence in support of his alleged identity, he stated he did not have anything else in Australia to support the claimed identity. When the Tribunal considered the evidence as a whole, and given the adverse credibility finding, it did not accept that the ID card was reliable evidence of the applicant’s claim that he was (the name the applicant claimed as his true identity) and not (name in passport) (CB 114.1).
5)In consideration of the evidence as a whole, and given the adverse credibility finding, the Tribunal rejected the claim that the applicant had used another name so he could leave China (CB 114.2).
6)In consideration of the evidence as a whole and on the basis of the available information, it was not satisfied that the name in the passport was not the applicant’s ‘real’ name (CB 114.2).
7)It accepted that the applicant attended church in Australia, which it found could explain his “knowledge, albeit limited, about some of the matters related to Christianity” (CB 114.3).
8)In consideration of the evidence as a whole and given the Tribunal’s concerns about the veracity of the applicant’s claims, it was satisfied that the applicant engaged in Christian activities in Australia for the purpose of enhancing his application for a protection visa and therefore disregarded those activities pursuant to s.91R(3)(b) of the Act (CB 114.3 to CB 114.4).
On the evidence as a whole, the Tribunal rejected that the applicant had suffered any harm related to a Refugees Convention ground and did not find that there was a real chance of such harm at the time of the decision or in the reasonably foreseeable future, if he were to return to China (CB 114.5). It therefore was not satisfied that he had a well-founded fear of persecution and affirmed the delegate’s decision not to grant a protection visa (CB 114.5 to CB 114.8).
Application to the Court
The applicant’s application to the Court filed on 15 December 2006 sought review on the following grounds:
“1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error
2. There was procedural error in the Tribunal’s decision constituting an absence of natural justice.”
These grounds are identical to those provided in the amended application filed on 29 March 2007. The applicant particularises the two grounds with the following:
1)That it would have been easy for the Tribunal (or the Minister’s Department) to verify his “genuine” identity.
2)That the Tribunal “failed to [do] anything” and “simply made its finding according to “its uncertain assumption”.
3)That the Tribunal was “ridiculously bias[ed]” about his identification and did not consider his claims fairly and properly.
4)That the Tribunal failed to comply with its obligation under s.424A of the Act and the information it relied on did not fall within s.424A(3)(b) of the Act.
5)The Tribunal misunderstood, or misstated, his claims in relation to his “ID” card, his knowledge of Christianity and his troubles with the PSB.
6)The Tribunal failed to comply with its obligation under s.425 of the Act because it did not give him a fair opportunity to present his arguments against the issues arising from the Tribunal’s hearing.
7)The Tribunal used the “wrong test” to assess his credibility.
Hearing before the Court
At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr J Smith of Counsel appeared for the first respondent.
The applicant’s submission before the Court was that during the course of the hearing it was “obvious” that the Tribunal was “not looking” for information “in favour” of the applicant. He emphasised that the Tribunal’s decision was “ridiculous” and “unfair.” The applicant drew the Court’s attention to what was set out in the particulars of his amended application. Specifically, he complained:
1)He did not agree with the reason the Tribunal gave for refusing his application.
2)At the hearing, the Tribunal was “not looking for information’s (sic) in favour” of the applicant.
3)The Tribunal’s decision was “ridiculous” and “unfair.”
4)That his real name was that contained in the identity card provided to the Tribunal and not that in his passport, and that the Tribunal could have “made sure of his status” by either contacting the relevant Australian consulate in China to obtain information about how he applied for the visa that enabled him to travel to Australia and could have “corroborated” the applicant’s evidence in this way.
5)Complained that the Tribunal did not ask the “authority” to confirm that the “ID” is a real one. I saw this as a reference to the “profession examination authority” which is a part of the Department, that is, the Department’s document examination authority.
6)That the Tribunal “purposely” did not obtain any information in the applicant’s favour.
7)That with specific reference to what is contained in the amended application, the Tribunal breached the provisions of s.424A(1). The applicant asserted that the Tribunal did not provide relevant information to him. It is not clear what information the Tribunal should have provided, although the applicant’s reference and complaint in this context that the Tribunal found that he was a person with the identity in the passport and not the ID, that this should have been put to him for comment prior to the decision being made.
Ground One – Failure to make enquiries
The applicant’s first ground in the application asserts a number of issues all said to derive from the different identities contained in the passport that the applicant used to travel to Australia and in the “ID” that he submitted to the Tribunal. Firstly, there is no absolute obligation on the Tribunal to make further enquiries (SZILK v Minister for Immigration and Citizenship [2007] FCA 185 at [18]).
With reference to the relevant statutory context, the Migration Act 1958 (“the Act”) does not impose any duty or obligation on the Tribunal to make enquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 27 at [43]). In that case the High Court said:
“This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.” (Footnotes omitted)
In the case before the Court now, the issue of the applicant’s identity was certainly before the Minister’s delegate, and although it was not determinative in refusing the applicant a visa, the applicant would have been aware that the issue of his identity remained open. As the delegate said in her decision record, relevantly reproduced at CB 41.10:
“The applicant claims to have arrived in Australia travelling on a bogus PRC passport issued in the name of (name inserted). He claimed the passport was fraudulently obtained in China however the document appears to be a genuine Chinese passport with a valid Australian visa. I am unable to make a definitive finding in relation to the applicant’s true identity.”
Amongst other matters, the applicant sought to address this issue and provided to the Tribunal (it appears at the hearing before the first constituted Tribunal) a copy of his passport (CB 108.3):
“The applicant provided a copy of his passport (name in passport) and a copy of a PRC ID card in the name of (the name the applicant claimed as his true identity).”
The applicant’s true identity and the passport and the ID were clearly discussed at the hearing the Tribunal conducted with the applicant on 19 October 2006 (CB 109.4). The Tribunal put to the applicant its concerns as to the authenticity of the “ID card” (CB 109.6):
“The Tribunal indicated to the applicant that his acknowledgement that he had used a fraudulent passport might mean that the Tribunal may not be satisfied that the ID card that he has provided is genuine. …The Tribunal put to the applicant that it has concerns about the ID card and in consideration of the evidence as a whole the Tribunal may conclude that the ID card is not authentic. The Tribunal asked the applicant if he had any other evidence in support of his alleged identity and the applicant stated that he does not have anything else in Australia to support the claimed identity. He stated that he has other IDs in China.”
Plainly, the Tribunal reached “an adverse credibility finding” in relation to the applicant (CB 111.9). The Tribunal gave a number of reasons for this, including that the applicant’s responses in relation to his knowledge of the Bible and Christianity were limited, and that his responses to significant claims were vague, general and lacked details. In addition, the Tribunal expressed doubts about the authenticity of the ID card as it found his evidence in this regard to be “evasive” (CB 112.3), and that his responses to questions about his passport were “overall evasive and vague.” In this regard, ultimately, the Tribunal did not accept that the “ID card” was “reliable evidence of the applicant’s claim” that he was the person asserted in the ID card and not the person as asserted in the passport (CB 114.1).
There is nothing in the material before the Court now to show that at the hearing the applicant asked the Tribunal to make further enquiries, either with the Minister’s Department or the Australian Consulate in Guangzhou in China in relation to his identity. In this regard, the Tribunal’s account of what occurred remains unchallenged by any other evidence brought by the applicant before this Court.
Nor, is there anything before this Court to show that once having been put on notice by the Tribunal as to its concerns about this issue and, specifically, about the genuineness of the ID card, (that is, in the time between the hearing before the Tribunal on 19 October 2006 and the handing down of the Tribunal’s decision nearly a month later on 16 November 2006), that the applicant sought that the Tribunal make such enquiries. I note also in this regard that the applicant was represented by a migration agent before the Tribunal and throughout the process of his application (CB 52 and CB 103.3). I note further that, of course, even if the applicant had made any such request, there still would not have been any statutory duty on the Tribunal to have made any enquiries flowing from such a request.
Further, a plain reading of the Tribunal’s decision record shows that it did not only reject the applicant’s claims to protection based on the rejection of the applicant’s claimed identity as contained in the “ID card.” While the Tribunal said it was “not satisfied that the name in the passport [wa]s not the applicant’s ‘real name’” (CB 114.2), the applicant’s claim to having a well founded fear of persecution if he were to return to China based on his claimed persecution as a Christian and his claimed harm from the Chinese authorities were rejected because the applicant demonstrated little knowledge of Christianity and his responses to relevant questions were found to be vague, general and lacking in details (CB 113.6). In this regard, therefore, I cannot see that the circumstances before the Court now were such as the circumstances before the Full Court of the Federal Court in M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16, in which the Court found that the Tribunal’s failure to make enquiry gave rise to jurisdictional error.
Ground Two – Bias
The application to the Court also complains (at particular 3) that the Tribunal was biased against him in relation to his “identification” and therefore did not “fairly and properly” consider his claims. Where the applicant asserts bias, or even the apprehension of bias, such assertions, as Mr Smith submitted, require clear and cogent evidence, which has not been put before the Court. Bearing in mind relevant High Court authorities (Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 517), I cannot see that any such complaint succeeds on what the applicant has put before the Court.
Nor in this context does the applicant’s complaint that the Tribunal in some sense deliberately did not make relevant enquiries such as to show that it was one sided succeed. As Mr Smith, correctly in my view, submitted, for such a complaint to have any chance of success would require some evidence that the Tribunal was aware that such enquiries would have resulted in a favourable outcome for the applicant, and that the Tribunal did not do so because it sought to be unfair to the applicant.
At the hearing before the Court, the applicant also complained that at the hearing before the Tribunal, the Tribunal did not look for information in his favour. Firstly, in this regard, it should be noted that it is not for the Tribunal to make out an applicant’s case. For the applicant’s benefit I note that it is for the applicant to put before the Tribunal his claims and evidence in support of those claims. Nor is it for the Tribunal to disprove that the applicant is a refugee. The relevant statutory provisions (ss.65 and 36(2) of the Act), require that in an application for a protection visa the Tribunal must be satisfied on the material before it that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. That is, it must be satisfied that the applicant has a well founded fear of persecution for one of the Convention reasons should he return to his home country.
That the Tribunal tested the applicant’s claims and his evidence at the hearing before it is not only consistent with the Tribunal’s inquisitorial nature in seeing if it could be so satisfied, but is consistent with the Tribunal at the hearing raising with the applicant critical issues to the disposition of his application. As the High Court set out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, a fair hearing pursuant to s.425 of the Act, such that the applicant is accorded procedural fairness, requires the Tribunal to raise the determinative issues with the applicant in the hearing before it. On the only account of the hearing before the Court now, the Tribunal plainly did this, and specifically in relation to the issue of identity, raised its concerns with the applicant. In all therefore, this ground and all the aspects of the complaint flowing from it does not succeed.
Ground Three – Failure to comply with s.424A
The applicant’s third ground in the amended application is that the Tribunal failed to comply with its obligation pursuant to s.424A of the Act. The applicant particularises this as being that information regarding his passport and his ID card, his knowledge of Christianity, and his troubles with the PSD. Firstly, all of this information was provided by the applicant to the Tribunal for the purposes of the review, such that it falls within the exception of s.424A(3)(b) of the Act from the obligations set out in s.424A(1) of the Act. The passport and the ID were given to the Tribunal (CB 63 to CB 70). To the extent that it may be said that this information was given to the Tribunal as previously constituted, then with reference to SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107, the information given to the previously constituted Tribunal falls within s.424A(3). But in any event, the passport and the ID documents were also given to the currently constituted Tribunal on 19 October 2006 (CB 93 to CB 99). In all, therefore, this was clearly information provided by the applicant for the purposes of the review and falls within s.424A(3)(b) of the Act.
As to the information relating to the applicant’s knowledge of Christianity and his troubles with the PSB, any plain reading of the Tribunal’s decision record reveals that this was information provided by the applicant himself during the course of the hearing before the Tribunal and as such, also plainly falls within the exception provided by s.424A(3)(b) of the Act.
Second, as also submitted by Mr Smith, the applicant’s complaint misunderstands the effect of s.424A of the Act. The applicant’s complaint that the Tribunal misunderstood this information cannot, in all the circumstances, rise above a request for impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. There is nothing to show that the Tribunal misunderstood anything that the applicant put to it. It simply did not accept that the applicant’s claims were such as to cause it to reach the requisite level of satisfaction required before a visa was mandated to be granted to the applicant.
To the extent that the applicant complains in relation to the issue of his knowledge of Christianity that the interpreter at the hearing before the Tribunal was unable to translate those religious terms properly and accurately, and that this therefore presumably caused the Tribunal to misunderstand his claims, is totally unsupported by any evidence such as to support the allegation made. This Court, of course, can only proceed on the evidence put before it. In this regard, the Tribunal’s account of what occurred at the hearing is unchallenged by any other evidence. There is nothing to show that the applicant complained about the level of interpretation provided at the hearing. The applicant asked for, and was provided with, an interpreter in the Mandarin language (CB 87 and CB 89), and there is nothing to show that any complaint was made by the applicant, or indeed his migration adviser, to the Tribunal either during the hearing or in the one month following the hearing available to him about the level of interpretation provided, noting that the interpreter was an accredited interpreter to level 3 NAATI standard (CB 89.7). There is nothing in the Tribunal’s account of the hearing to indicate any difficulty that the Tribunal had with the interpreter, or that the applicant had with the interpreter, or indeed that the interpreter had with the applicant or the Tribunal. This complaint also does not succeed.
Ground Four – Failure to comply with s.425
The applicant’s third ground in the amended application again asserts bias on the part of the Tribunal, but specifically focussed upon the Tribunal’s alleged failure to comply with its obligations pursuant to s.425 of the Act, in that the applicant was denied a fair opportunity to present his arguments against the issues arising from the Tribunal hearing. Firstly, as set out above, issues relating to the applicant’s identity and the Tribunal’s doubts were clearly put to the applicant during the course of the hearing and the applicant was given the opportunity to comment at the hearing. The applicant’s knowledge of Christianity and his claimed “troubles” with the PSB were also discussed at the hearing. Further, the applicant’s claims to Christian beliefs and the Chinese authorities’ reactions to Christians in China were issues that were determinative in the decision of the delegate (CB 48.9 to CB 49.7) and therefore, the applicant cannot complain that he was not to have known of the importance of these issues to the ultimate determination of his claims before the Tribunal, particularly as the Tribunal plainly discussed these issues with him at the hearing it conducted with him and gave him the opportunity to comment. Having done so, I cannot see that s.425 of the Act and the obligation to provide the applicant with a fair hearing requires the Tribunal subsequent to that hearing, to provide the applicant with a further opportunity to comment on what were the adverse views that it derived from what the applicant had put before it, and from the applicant’s explanations to the Tribunal’s relevant questioning. In all, therefore, this ground does not succeed.
Ground Five – Application of the “wrong test”
Ground four asserts that the Tribunal used the “wrong test” to assess the applicant’s credibility and asserts that the Tribunal made “wrong findings” based on the applicant’s evidence. In my view, rather than seeing this complaint as a complaint that the Tribunal applied the wrong test as it is usually understood in matters of this type, this is a complaint that it was not open to the Tribunal to make the findings that it did in that the Tribunal should have accepted the applicant’s evidence or that the Tribunal should not have done so without providing the applicant with a further opportunity to comment. For all the reasons set out above, these complaints do not succeed.
In all, therefore, I cannot discern jurisdictional error on what the applicant has put before the Court, nor is such error otherwise discernable from the material before the Court. This application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 22 August 2007
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