SZIGO v Minister for Immigration - [2007] FMCA 960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 960

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A(1) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal ignored relevant independent country information.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(a); 424A(3)(b); 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 103

Applicant:

SZIGO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG364 of 2006

Judgment of:

Emmett FM

Hearing date:

24 May 2007

Date of last submission:

24 May 2007

Delivered at:

Sydney

Delivered on:

22 June 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Ms B. K. Nolan

Solicitors for the Respondent:

Ms G. Broderick, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG364 of 2006

SZIGO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 20 December 2005 and handed down on 10 January 2006 (“the Tribunal”).
The Applicant was born on 29 December 1974 and claims to be from the People’s Republic of China (“the PRC”) and of Han ethnicity and Christian faith (“the Applicant”).
The Applicant arrived in Australia on 26 January 2005 having legally departed from the PRC on a passport issued in his own name and a visa issued on 12 January 2005.
On 9 March 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution because of his Christian beliefs and practice. The Applicant claimed that, after being introduced to Christianity he was moved by the experience and decided to become a Christian. The Applicant claimed that in 2000 he and a friend formed “a small group to study Bible” and they met every week. In 2001, on his return to Shanxi Province, the Applicant claimed that he and his friend formed another bible study group to spread the gospel among their fellow labourers. The Applicant further claimed that the study group “quickly developed from 2001 to 2002” and by 2003 the study group had spread to other districts. The Applicant claimed that in 2004 he was arrested by the Public Security Bureau (“the PSB”) after he and his friend organised a secret underground church meeting. The Applicant further claimed that after his arrest he realised that the church’s activities had come to the attention of the government authorities and that the PSB had found a connection between the various bible study groups and that they were looking for him.
On 4 August 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 8 September 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 20 December 2005 the Tribunal affirmed the decision of the Delegate not to grant a protection visa and this decision was handed down on 10 January 2006.
On 6 February 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

The Applicant attended a hearing before the Tribunal at which he gave oral evidence. The Tribunal accepted that the Applicant is a Christian.
The Tribunal noted that the Applicant did not claim that he himself was subject to any persecution as such. The Tribunal identified the Applicant’ s main claim was that “his colleagues and associates in the church have been subject to persecution and that he has information that indicate that the Public Security Bureau is looking for him.” The Tribunal noted that in support of that assertion the Applicant provided, post-hearing, a document signed by senior members of his church in the PRC. The Tribunal noted that this document was written on letterhead of the Local Church of Restoration in Fuqing and identified the telephone and facsimile numbers of the church. The Tribunal noted the letter was signed by the Chief Executive, two elders and the Chief of the Local Restoration Church.
The Tribunal found that the fact that the Applicant’s church was able to fax the document from the PRC and courier the original to Australia suggested that the church did not operate in an environment of persecution. The Tribunal noted that, if the Chief Executive of the church and other senior elders were currently able to live in the PRC and were free enough to be able to fax and courier mail out of the country on the church’s letterhead, then it was “not plausible” that the Applicant would be of adverse interest to the authorities, even if the Applicant’s claim that he organised for people to attend church meetings was accepted.
Further, the Tribunal found that the fact that the Applicant was able to secure a letter signed by church officials was not consistent with the applicant’s claims that the PSB had arrested and detained colleagues associated with the church and their relatives and that the PSB was now looking for the Applicant because of “his involvement in the church”.
The Tribunal found that the Applicant’s claims that the authorities arrested twenty of his colleagues to attend at a church meeting with him as not credible. The Tribunal found that if the leaders of the church were free and able to communicate with the Applicant, as they have, then it was not plausible that other members of the congregation who attended the meeting would have been arrested.
The Tribunal found that the fact that leaders of the church appeared able to engage in communicating with the Applicant using ordinary means of communication in the country led the Tribunal to conclude that the Applicant had no reasonable grounds to fear persecution because of his association with the church were he to return to the PRC.
Whilst the Tribunal accepted the Applicant’s claim to have changed his identity to enable him to escape from the PRC, the Tribunal found that a change of identity by itself did not support a claim that the Applicant was fleeing from authorities for a Convention reason. The Tribunal concluded that, on the evidence before it, it was not satisfied that the Applicant has a well-founded fear of persecution were he to return to the PRC because of his association with the church.

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied on an application filed on 6 February 2006. The grounds of the application are mere assertions of error and the particulars in support of the grounds are long and rambling. Whilst I have addressed the grounds below, I understand the Applicant’s allegations of error essentially to be as follows:
i)That the Tribunal breached its obligations unders.424A(1) of the Act by having regard to a post-hearing letter sent by the Applicant to the Tribunal without informing the Applicant about concerns it had about the letter and failing to invite the Applicant to comment upon those concerns;
ii)That the Tribunal ignored relevant material; and
iii)That the Tribunal ignored relevant independent country information.

Ground 1 – “There was procedural error in the Tribunal’s decision constituting an absence of natural justice”

The particulars in support of the allegation in ground 1 can be summarised as an allegation that the Tribunal breached its obligations under s.424A(1) of the Act by having regard to a post-hearing letter sent by the Applicant to the Tribunal without informing the Applicant about concerns it had about the letter and failing to invite the Applicant to comment upon those concerns.
The Applicant submitted that the Tribunal believed that the author of the letter and the Applicant were able to correspond through normal ways of contact from which the Tribunal inferred that the Applicant did not have a well-founded fear of persecution were he to return to the PRC by reason of his association with the church.
The Applicant submitted that the Tribunal was obliged to inform the Applicant of the reasons for drawing that conclusion pursuant to s.424A(1) of the Act and that the Applicant should have been given an opportunity to comment on that information.
The text of the post hearing letter described as a “Certificate” is as follows:
“[The Applicant], is one of the key Members of our Local Restoration Church, who was for a long time engaged in the Gospel activities and in particular he made great contributions to the establishment and development of the Restoration Church organizations in Jin Cheng areas of Shan Xi Province. Because of his great efforts for such activities and his special role in the local restoration Church, [the Applicant] was then targeted by the Chinese Communist Party Authority to be punished and for those reasons he had to leave his motherland in order to avoid the persecution by the Chinese Government.”
[Signed by the Church Executives]
The Tribunal made the following relevant adverse finding:
“the fact that the applicant was able to secure a letter signed by senior church officials is not consistent with his claims that the Public Security Bureau has arrested and detained his colleagues associated with the church and their relatives, and that Bureau is now looking for him because of ‘involvement in the church’.”
The Tribunal found that those ordinary means of communication led the Tribunal to conclude that the Applicant had no reasonable grounds to fear persecution because of his association with the church were he to return to the PRC. The adverse findings arising out of that letter appear that it was “not plausible” that the Applicant would be of adverse interest to the authorities, even if one accepted the Applicant’s claim that he organised the people to attend church meetings, arose from the apparent freedom of the church to be able to fax and courier mail out of the PRC on the church letterhead.
A fair reading of the Tribunal’s decision makes it clear that the information to which the Tribunal had regard, namely, the “ordinary means of communication”, was information provided by the Applicant to the Tribunal for the purposes of his review application. As such, it is information that is excluded from the obligations of s.424A(1) of the Act be reason of s.424A(3)(b) of the Act.
The ability of the church to communicate with the Applicant may well be information given by the Applicant to the Tribunal for the purposes of its review. However, the freedom of the church to communicate was not. The freedom of the church to communicate was not information specifically about the Applicant and therefore is excluded from the obligations of s.424A(1) of the Act.
Further, the Tribunal’s finding was a finding of fact that was open to the Tribunal on the evidence and material before it. It is not open to this Court to review the merits of that finding (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [281]-[282] (“Wu Shan Liang”)).
Accordingly ground 1 of the application is not made out.

Ground 2 – “The Tribunal ignored relevant material”

Ground 2(a) of the application complains that the Tribunal forced him to provide the evidence form the church elders.
During the hearing the Tribunal stated that it explained to the Applicant that the Applicant’s claims of an association with any church in Australia or in the PRC were unsupported by any corroborative evidence and did “not seem credible”. The Tribunal noted that it invited the Applicant to provide any further information in support of his claims by 16 November 2005. The Tribunal noted that it made clear to the Applicant that any such evidence would be considered with other evidence before the Tribunal in deciding his application.
At the hearing before this Court the Applicant submitted that the letter from the church was provided to the Tribunal by the Applicant after the hearing and obtaining it did involve some difficulty, although this assertion was not supported by evidence provided either to the Tribunal or to this Court.
However, the information which the Tribunal regarded as part of the reason for affirming the decision under review arising out of that letter was the fact that the letter was able to be faxed and couriered from the PRC without difficulty. As stated above in these Reasons, that was a finding open to the Tribunal on the evidence and material before it.
The Applicant’s complaint that he was forced to provide post hearing evidence is not made out on a fair reading of the Tribunal’s decision. There has been no transcript or other evidence provided to this Court by the Applicant to support such a contention, despite having been directed by this court to file and serve any such evidence by 30 June 2006.
Further, in relation to the Applicant’s assertion of his difficulties in obtaining the letter, a fair reading of the Tribunal’s decision does not suggest that there was any evidence before the Tribunal of any difficulty experienced by the Applicant in obtaining the letter from the church.
Accordingly, ground 2(a) is not made out.
Ground 2(b) alleges that the Tribunal intentionally ignored the Applicant’s claim of being a key member of the Shouters at his local church.
The Tribunal found the Applicant’s claims of a well founded fear of persecution for a Convention reason by reason of his membership of a secret underground church were not credible.
The Tribunal identified the written and oral claims made by the Applicant. Whilst the Applicant claimed to be engaged in gospel activities, he did not claim specifically to be a member of the Shouters. The Tribunal accepted that the Applicant may be a Christian but noted that fact it did not “prejudge the issue as to whether he faces or faced persecution in China”.
The Tribunal noted that the Applicant did not make claims of past persecution.
The Tribunal noted exchanges it had with the Applicant during the course of its hearing about concerns it had with the Applicant’s evidence.
The Tribunal gave the Applicant an opportunity to provide further evidence in support of his claims in the context of explaining to the Applicant that his credibility was an issue for the Tribunal. The Tribunal noted that it told the Applicant that his claims did not seem credible and that he had no evidence to support his claims.
The Tribunal noted in its decision that it made it clear to the Applicant that any post hearing evidence to support his claims would not be determinative of whether he faced persecution in the PRC and would need to be considered together with other evidence before the Tribunal.
The Tribunal then considered all the evidence before it, including the post hearing letter from the church elders, made findings in relation to the evidence before it from which it concluded that the Applicant was not a person to whom Australia has protection obligations under the Convention. Those findings and conclusions were open to it on the evidence and material before it and for which it provided reasons.
In the circumstances, the allegation in ground 2(b) is no more that a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Wu Shan Liang at [281]-[282]).
Ground 2(c) alleges that the Tribunal intentionally ignored important independent country information.
The Tribunal noted that it was aware of country information that indicated that leaders of unregistered churches were sometimes subject to interrogation and harassment. However, the Tribunal was not satisfied that the Applicant’s claimed fear was well founded in circumstances where:
a)He had not been subject to any persecution in the past; and
b)The freedom with which his church elders were able to communicate with him suggested they were able to “engage in ordinary activities”.
Those were findings open to the Tribunal on the evidence and material before it and for which it provided reasons.
In any event, the Applicant confirmed to this Court that all the independent information to which it referred in ground 2(c) was not information that was provided by the Applicant to the Tribunal for the purposes of its review. The Applicant had every opportunity to provide any such material to the Tribunal. It is not a error on the part of the Tribunal going to the Tribunal’s jurisdiction for it to fail to have regard to information that was not given to it by the Applicant.
In any event, the Tribunal is entitled to obtain independent information from whatever sources it sees fit and in the course of evaluating that information it can place whatever weight it finds appropriate. Authorities have made it clear that, pursuant to s.424A(3)(a), independent country information is excluded from the obligations of s.424A(1), and it is a matter for the Tribunal in relation to the weight that it attaches to that material and the use that it makes of it. Further, the Tribunal is not bound by the rules of evidence in conducting its review and may obtain information it considers relevant. NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”); QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]; SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 at [16].

In NAHI the Full Court stated at [11] as follows:
“The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
There is nothing on the face of the Tribunal’s decision, including the conduct of its review, to suggest that it “intentionally” ignored any information. Whilst the Tribunal noted that country information indicated that authorities permit Christianity, it proceeded to make its decision in the context of accepting the difficulties faced by leaders of underground churches in the PRC.
Ultimately the Applicant’s claims were rejected because the Tribunal did not find the Applicant’s claimed fear arising from his membership of his local restoration church was not well founded because, essentially, it did not believe the Applicant’s main claim that his colleagues and associates in the church had been subject to persecution or that the PSB was looking for him. The Tribunal’s findings are referred to in paragraph 49 above in these Reasons.
Accordingly, ground 2 is not made out.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 6 February 2006, is dismissed with costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 20 June 2007