SZIHM v Minister for Immigration - [2006] FMCA 1201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1201

MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error.

Migration Act 1958, ss.424A, 424A(1)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 215 ALR 162
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27

Applicant:

SZIHM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 402 of 2006

Judgment of:

McInnis FM

Hearing date:

14 August 2006

Delivered at:

Sydney

Delivered on:

14 August 2006

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr. J. Bird

Solicitors for the Respondents:

Phillips Fox Lawyers

ORDERS

The First Respondent’s name be amended by deleting the words ‘and Indigenous’.
The application filed 8 February 2006 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 402 of 2006

SZIHM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 December 2005. In its decision the Tribunal affirmed the decision of a delegate of the First Respondent refusing to grant to the application a protection visa.
The Applicant is a male citizen from China who was born in 1969 and who arrived in Australia in May 2005. He applied for a protection visa in June 2005. The claims were set out in support of his application and appear in the Court Book. Essentially, the Applicant claims to have been persecuted by the Chinese Communist Party as a result of or by reason of the Applicant's religious, namely, Christian activities and affiliations. He claimed to fear being imprisoned upon return to China.
The application for a protection visa was refused on 8 September 2005, whereupon the Applicant applied to the Tribunal for review of that decision. The Tribunal conducted a hearing and the Applicant gave oral evidence at that hearing on 19 December 2005. At the hearing the Applicant provided the Tribunal with a copy of his passport. It is significant to note that in considering the claims made by the Applicant the Tribunal set out in some detail not only the claims which appear in writing but also the evidence given by the Applicant at the hearing.

So much is evident from the Court Book at pages 74 through to and including page 77.
Thereafter, the Tribunal set out in its reasons a summary of what is described as independent country information. It is relevant by way of background to note, the Tribunal's summary of the claims of the Applicant which appear in writing in support of the protection visa. Those claims include that his parents were both Christians and he had attended secret religious activities with them when he was a child. In 1984, his parents were accused of attending illegal religious activities and were sentenced to one year’s imprisonment. During their imprisonment the Applicant lived with his grandparents.

The Applicant claimed that there was no formal church in his area and that he belonged to a church group in the Fujian Province. He claimed that he attended meetings of this church group. The Applicant further claimed that in 2004 he was arrested, tortured and detained for one year for his involvement in illegal church activities and involvement in an overseas church. He further claimed that soon after he was released he came to Australia. As indicated earlier, he claimed that if he returned to China the Chinese authorities would find more evidence against him and put him in jail.
In addition to that summary of the written claims, the Tribunal then further set out in some detail the evidence given at the hearing by the Applicant. That material includes reference to the Applicant showing the Tribunal his passport. When that occurred the following appeared according to the Tribunal decision at Court Book page 75 and I quote:
“The Applicant showed me his passport at hearing and I put it to him that it had been issued in January 2003 and it contained a Malaysian entry permit issued in August 2004. He agreed that he had an entry permit for Malaysia but stated he did not use it because the company he worked for had organised a business trip but the arrangements fell through. He told me that he had not travelled outside China before his arrival in Australia.”
Further in the Tribunal's decision, there appears relevantly the following extracts whereby the Tribunal asked the Applicant certain questions during the course of his oral evidence. The following passages which appear at Court Book page 77 are relevant where the Tribunal states:
“I asked him whether he had been to a Christian church since he had been in Australia. He claimed that he had been to church a few times but did not know the name of the church because it was in English. He attended with his friend. He claimed that people had kneeled down and prayed at the church service. He also stated that they had talked about the Bible. However, he claimed he knew nothing about the Bible because it was in English. I put it to him that the Bible was also published in Chinese; however he claimed he had never seen a Chinese Bible.
I put it to him that he left China without any restriction. He claimed that he had been working for a company and obtained a temporary business visa however he had really come to Australia for personal reasons. I put it to him and he agreed that the Chinese authorities did not stop him from leaving China. He claimed that if he returned they would know he left for personal reasons and he would be punished if he returned.
I put it to him that I had difficulty accepting that he was a Christian given the fact that he appeared to know almost nothing about Christian practice or belief. I also put it to him that he had left China on his own passport without restriction. I then discussed relevant country information including the existence of official Christian churches and churchgoers and the restrictions on religious practice applied to groups regarded as cults or subversive. He did not respond to this information.”
Thereafter, the Tribunal sets out relevant independent country information. Under the heading, "Findings and Reasons" the Tribunal at Court Book page 80 through to page 82 sets out what can only be described as significant adverse findings. By way of example, it is useful to recite the following passages from those findings which appear at Court Book page 80:
“I do not accept that the applicant's parents were Christians. The applicant claimed that he attended religious services with his parents but could not tell me the name of the church or group they belonged to and could not describe the nature of their religious practice. I would have expected that if the applicant's parents were Christians and the applicant had observed their practices from his early childhood he could give some account of these matters. As I do not accept that his parents were Christians I do not accept that they were imprisoned for one year in 1984 for reasons of their Christian religious beliefs.
I do not accept that the applicant is a Christian or has ever attended a Christian group or meeting either in China or Australia. I found that the applicant had almost no knowledge of Christian belief and practice and the level of his knowledge was not consistent with a person who had grown up in a Christian family and had been a committed Christian for most of his adult life. He had no understanding of the most basic Christian concepts of baptism, the important days of the Christian calendar (other than Christmas) and he claimed that he had never seen a Chinese Bible. He could not give any explanation of any Christian teachings and did not know the name or denomination of the church or group to which he claimed he had belonged. He claimed that his group in China prayed at their meeting but could not explain the nature of the prayers or explain the meaning of any of the scriptures. When I asked him if he had attended church in Australia he claimed that he had attended with a friend but could not give me the name of the church or describe the church service other than for his claim that prayers took place in the church.”
The Tribunal then goes on in its reasons to reject other claims made by the Applicant. It did not, for example, accept that the Applicant had been detained for a year for his religious beliefs or activities.
Ultimately, the Tribunal concluded that the Applicant had fabricated his claims in order to support a claim for refugee status.
In the application before the Court filed 8 February 2006, the Applicant appears to rely upon grounds with particulars which might be described as general particulars, not necessarily having particular application to the circumstances of this matter. It is suggested that in the particulars subjoined to the grounds set out in the application, the Tribunal was required to provide particulars of information that is its reason or part of the reasons for affirming the delegate's decision. Some reliance was sought to be placed upon the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Industrial and Ethnic Affairs [2005] 215 ALR 162.
Likewise, reliance was sought to be placed on the decision of Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 commonly referred to as “Al Shamry”.
Before this Court, the Applicant had the advantage of an interpreter. Through the interpreter he relied upon submissions written in Chinese though interpreted for the benefit of the Court. Those submissions appear to raise a number of issues including a claim by the Applicant that the Tribunal did not consider his claims before it that he belonged to what might be described as an ‘underground church’. The Applicant also sought to argue that the Tribunal decision demonstrated bias. Further it was suggested that there was no reference to country information in the Tribunal decision and that otherwise, the Tribunal had not complied with its obligations under s.424A of the Migration Act 1958 (“the Act”).
The First Respondent has submitted that the application should be dismissed. It was submitted that the Tribunal's findings in relation to the Applicant, and in particular, the findings that the Applicant's claims were fabricated were indeed findings reasonably open to the Tribunal not susceptible to judicial review. The First Respondent relied upon and I apply the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at paragraph 67 as follows:
“ [67] In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.”
It was submitted that the Tribunal considered the Applicant's evidence at the hearing and made adverse credibility findings open to it on the evidence leading it to conclude that the Applicant's evidence was unconvincing and inconsistent. It was further submitted during the course of this hearing that the Tribunal had in fact referred to country information when considering its decision and that its reasons and findings do not demonstrate any evidence of bias of a kind which may be relied upon in an application for judicial review. In relation to the question of information, it was noted that the complaint in relation to the Tribunal's failure to provide relevant information to the Applicant or providing an opportunity to comment appeared to be vague. Specifically, reference was made to information said to be set out in the Applicant's passport which was inconsistent with the Applicant's oral claim to have been in detention in China in August 2004.
It was submitted and I accept that s.424A(1) of the Act has no application to this information in this instance as it is information provided by the Applicant to the Tribunal. So much is evident from the extract of the Tribunal's decision set out earlier in this judgment. I note and apply the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, and in particular the references in that case to the judgments of Moore and Allsop JJ at [51]-[52] and [245] respectively.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. In my view, on the material before me I can see no basis upon which the Court can conclude that the Tribunal has committed any error or indeed any jurisdictional error.
The Tribunal made what could only be described as significant adverse credibility findings against the Applicant when considering in some detail his written claims and the further claims made before it by the Applicant which throughout the hearing process clearly involved an exchange between the Tribunal and the Applicant of a kind which appears to me to be entirely appropriate. It is clear from the Tribunal's decision that it raised directly with the Applicant the concerns it had concerning his level of commitment to Christianity and indeed his involvement in that religion both in China and in Australia. As a result of that exchange and the pursuit by the Tribunal of what I regard as relevant questions, it then decided, it would affirm the decision of the delegate. It is that consideration of the material which led the Tribunal ultimately to not be satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention. Its reasoning process and its findings, part of which are set out earlier in this judgment are free of any jurisdictional error.
It follows therefore that the application should be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM

Deputy Associate:

Date: 14 August 2006