SZIJP v Minister for Immigration
[2007] FMCA 1113
•13 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1113 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1993 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476 |
| NAOA v Minister for Immigration &Multicultural & Indigenous Affairs[2004] FCAFC 241 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZBEL v Minister for Immigration&Multicultural & Indigenous Affairs (2006) 231 ALR 592 |
| Applicant: | SZIJP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG526 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 16 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2007 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the First Respondent: | Ms T Quinn of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 20 February 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG526 of 2006
| SZIJP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“The Act”) and has been given the pseudonym “SZIJP”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 February 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 21 December 2005 affirming a decision of a delegate of the first respondent made on 31 August 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
A Court Book ("CB") prepared by the first respondent's solicitors was filed and served on 5 May 2006. I have marked it Exhibit "A" and it was read into evidence.
Background
The Tribunal decision of R Derewlany, reference NO5/52397, provides the following background information:
The applicant, who claims to be a citizen of the People's Republic of China, arrived in Australia on 27 July 2005. On 26 August 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 31 August 2005 a delegate of the Minister for and Multicultural and Indigenous Affairs refused to grant a protection visa and on 28 September 2005 the applicant applied for review of that decision.(CB 77)
The applicant claims to fear persecution for reason of his involvement in an underground church. He claims that:
Around summer 2002 he went fishing with 2 friends, but the boat sank in a storm. His 2 friends drowned but he was saved by a fisherman Mr Xun Jian Jiang, and since then Mr Jiang had become a very good friend.
The applicant later discovered that Mr Jiang was a Christian, but he had refused to worship in any official church because he felt Christianity had been distorted and damaged in the official churches. Mr Jiang therefore organised his own Christian fellowship and was a key member of an underground church.
From early 2003 the applicant began to participate in gatherings organised by the underground church…On 1 June 2003 the applicant was baptised by a priest from Taiwan on Mr Jiang’s boat... Because of his position at Haiyao police station the applicant was asked to be in charge of transporting religious promotional material from Taiwan to mainland China from January 2004...
In April 2005… a distant relative came to his home and told him that a man… had been arrested by the Fuzhou PSB, and had told the authorities that the applicant had been a key member of an underground church and he had transported illegal religious material from Taiwan… He learned that the next morning police came to his home with and arrest warrant and his home was searched. His family was questioned and he learned that Mr Jiang and many other members of the church had been arrested by police.(CB 80-81)
Tribunal’s findings and reasons
A summary of the Tribunal’s findings is contained in the first respondent's written submissions prepared by Ms Quinn and I adopt paragraphs 8 to 12 of those submissions.
8. The RRT affirmed the decision under review refusing the grant of a protection visa to the applicant. The RRT accepted that the applicant was a Chinese national and held that it was more likely than not that the applicant was [SZIJP], despite the fact that the passport he used was issued under a different name.
9. The RRT found that the applicant's version of events leading up to his departure from China lacked credibility in a number of key aspects:
9.1 The applicant's evidence about how he met Mr Jiang was vague and lacked in detail, as such the RRT found that the applicant had fabricated his claim.
9.2 The applicant displayed a very general understanding of Christian beliefs, and his knowledge of his baptism and its significance were also very vague.
9.3 The applicant knew very little about Mr Jiang and the nature of his involvement with the underground church.
10. The RRT did not accept that the applicant had taken part in Religious meetings every Sunday since 2003 or that he was a member of an underground church in China.
11. The RRT rejected the applicant's claim that:
11.1 He was involved in investigation work at the police station.
11.2 He was involved in the transport of religious materials.
12. Given the above findings the RRT was not satisfied that the applicant would take part in an underground church if he returned to China or that he would come to the attention of the authorities for reason of his claimed religious beliefs and activities.
Application for review of the Tribunal’s decision
On 20 February 2006 the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at first directions, the applicant filed an amended application on 8 June 2006. The grounds of review in the amended application were identical to the grounds in original application, with one additional ground alleging that the Tribunal failed to consider all of the evidence before it. The amended application contained the following grounds:
1. There was an error of law in the Tribunal's decision constituting a jurisdictional error;
2. There was jurisdictional error in the Tribunal's decision constituting an absence of natural justice.
Particulars
1.The Tribunal failed to assess my claim, fairly or properly; and the questions was given by the Tribunal is unfair and my claim as well as my answers have not been treated fairly.
(a)In assessing my claim in regard to how I met Mr Jiang, it is quite normal that I could not recall exactly how far it had been out to sea I had gone. When I went fishing with two friends, the weather was not bad and we mainly concentrated on fishing but did not pay too much attention to how far out to sea. It is also quite normal that I could not recall exactly the reason why the weather had been suddenly changed, storm or typhoon. But, it is a commonsense that the weather over the sea would always be changing frequently. Furthermore, it is not unusual that I could not recall everything in detail because it was over four years since 2002.
(b)In assessing my religious knowledge, the tribunal has, apparently, failed to treat my answers fairly. Firstly, I am not a priest or professional church worker; secondly, it was not my mistake to give a general or maybe vague response, but the question given by the Tribunal was general, vague and unclear; thirdly, China is a country in which there is no genuine religious freedom and the religious groups, churches and practices have strictly restricted by the PRC authorities. Therefore, it is definitely impossible to have many "Denominations" or "Groups" in a country like here in Australia. If we had to use the words like, "Denominations" to describe religious organisation or churches in China, there would be only two "Denominations": One is "Three-Self-Patriotic Church" which is an official church; and the one is an unofficial church. However, I indeed clearly tell the tribunal the name of my underground church in China is Xuan (Promoting) Dao (Christianity) Hui (Church).
(c)In assessing my claim that I organised the transportation of religious materials from Taiwan to mainland China, I have found that the tribunal has, completely, misunderstood my claim (or the tribunal may intentionally do so) or, completely, ignored my claims. As a matter of fact, it is owing to my special position - "…often drove the car for the president or deputy president of the police station…." - that I established a very close relationship with those senior officials. In such a situation, owing to special circumstances and cultural background in China, "….some of junior police office did not want to give me any troubles, because they were afraid that I might report to those senior leaders. It was owing to the above-mentioned reason that no-one checked my boat when I returned home after my fishing…".
(d)In assessing my religious practice since I came to Australia, it is obviously not unusual that a new arrival like me who is in an alien environment without any relatives or friends and who is unable to understand local language would be subjected to difficult in finding a proper local church from the very beginning.
2. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
(a)I believe that the issue mentioned above should be regarded as the "information" which the tribunal mainly collected from the tribunal's hearing but completely based on incorrect understanding of my major claims and which the tribunal has used as main reason for determining my application. It is owing to the "information" that the tribunal has made a wrong finding.
(b)Guided by the Act, I have found that:-
Section 424A applicant must be given certain information.
[Section 424A (1), not reproduced]
(c) In this case it can be found that:
- In November 2005, I attended the Tribunal hearing:-
- On 21 December 2005, the Tribunal decision was signed.
- Date of handing down was 17 January 2006.
(d) However, during the period from the end of the Tribunal hearing on 21 December 2005 further to 17 January 2006, the Tribunal:-
- failed to give me, in the way that the Tribunal considersappropriate in the circumstances, particulars of the pieces of information in relation to the above-mentioned letter or issues arising from the letter;
- failed to ensure, as far as is reasonably practical, that I understood why it is relevant to the review; and
- failed to invite me to comment on it.
(e) It is apparent that the Tribunal failed to comply with its obligations under s.424A(1) of the Act while the Tribunal considered those pieces of information as main reasons for affirming the decision that is under review.
3. Similarly, the tribunal failed to comply with its obligations under s.425 of the Act.
(a) The Tribunal failed to provide me a genuine opportunity to present my oral evidence in support of my application; because I have many times been strictly restricted by those unclear questions by the Tribunal during the Tribunal's hearing;
(b) The Tribunal failed to provide me a genuine opportunity to give my argument against relevant issues, because the Tribunal never ensured me to genuinely understand what those issues were at the Tribunal's hearing.
4. In support of my application, I have provided the following documentary evidence:
(a) Certified copy of the public service bureau of Fuqing City;
(b) Certified copy of the on-duty identification card issued by Haiyao Frontier Defence Local Police Sub-Station of Fuqing City.
(c) Certified copy of Chinese ID card.
(d) Supporting letter from Christian Assembly of Sydney.
5. The above-mentioned documentary evidence have, at least, demonstrated that:
(a) I used to be a police officer;
(b) I had to escape from the country with others named;
(c) I am a Christian.
6. The Tribunal, however, failed to consider the evidence, which must be supported by independent country information, that as a police officer, I must be more dangerous than anyone else, if I had been founded to be a Christian. In other words; I have more chances than others to be persecuted by the Chinese government. As a matter of fact, the PRC authorities never ever allowed anyone who is in the police force or in the army to have any religious beliefs.
7. It is also the issue of s.424A (1) and s.425 of the Act if the Tribunal refuses to consider the above-mentioned documentary evidence, because the Tribunal, at least, should give me a chance to comment on its negative opinions against me.
8. The Tribunal failed to consider relevant independent country information, such as US Human Rights Report.
9. In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.(Copied without alteration or amendment)
Submissions and reasons
The applicant is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. The applicant confirmed that he had not prepared any written submissions for the day's hearing. When invited to make oral submissions, the applicant repeated many of the claims set out in the statutory declaration attached to his original visa application.
The applicant referred to the Tribunal's telephone call to
Mr Ng, Chairman of the Christian Assembly of Sydney and suggested that the reason Mr Ng responded in the way he did because he was required to attend different churches in the Sydney metropolitan area. He suggested that the reason Mr Ng had not seen the applicant attend church on a regular basis was that Mr Ng did not attend the applicant’s church in Roseville every Sunday due to his other commitments. The applicant also claims that the Tribunal failed to consider the documents he submitted to it and listed in the fourth ground of the amended application.(see [8] above)The applicant then repeated the ninth ground nine of the amended application.
Ms Quinn submits that the Tribunal made adverse credibility findings based on evidence the applicant gave at the hearing. That it did so, when such findings were reasonably open to it on the evidence before it, is properly a function of the Tribunal and generally not susceptible to judicial review by the Court.
Ms Quinn submits in respect of the first ground of the amended application that there is no evidence to support the allegation that the Tribunal failed to assess the applicant's claims fairly, that it misunderstood or intentionally ignored them. The Tribunal considered the relevant evidence and found against the applicant. As such,
Ms Quinn submits that he is clearly attempting to engage in merits review which is not part of the function of the Court in dealing with a judicial review application.
The Tribunal decision sets out its findings in respect of Mr Jiang:
The Tribunal finds that the applicant's evidence in regard to how he met Mr Jiang is very vague. He apparently went fishing with 2 friends, but did not know how far out to sea he had gone. He knew very little of the circumstances that led to the boat capsizing, and could not explain why it would not have been known that there was a threat or possibility of a typhoon and why the boat would still have gone to sea in such circumstances. The Tribunal does not accept that the applicant is telling the truth about the circumstances in which he met Mr Jiang. The Tribunal finds that the applicant has given an account of the circumstances of his meeting Mr Jiang in a manner aimed at establishing a spiritual dimension to the meeting, which then becomes a significant factor in his claimed interest in Christianity.(CB 88.5)
This is an assessment of the oral evidence given by the applicant at the Tribunal hearing, which is a finding of fact and not subject to review by this Court.
The second issue raised under the first ground relates to the applicant's religious knowledge. The Tribunal considered the details he provided about his involvement and understanding of the Christian faith, together with the structure and operation of Mr Jiang's underground church. It concluded:
The Tribunal finds that the applicant knew very little about Mr Jiang and the nature of his involvement in the underground church or unofficial church that the applicant claimed to have joined. The Tribunal finds that the applicant was not certain about which religious group Mr Jiang’s fellowship belonged to. He did not know what other religious activities Mr Jiang was involved in apart from the meetings claimed to be held every week at sea.(CB 89.2)
This again is a finding of fact open to the Tribunal.
The third issue raised in the first ground relates to the applicant’s claim that he organised the transportation of religious materials from Taiwan to China. He claims that he was in a unique position because of his special relationship with senior officers of the local police, which enable him to carry out these activities without detection. The applicant claims that the Tribunal overlooked or misunderstood the nature of that claim However the Tribunal made the following observation:
The applicant claimed that he was asked to organise the transportation of religious material from Taiwan because of his position at the Haiyao police station. The Tribunal finds that he knew very little about how it was that rendezvous times with vessels were fixed or how it was known when a relevant Taiwanese vessel would dock at the village port. His evidence to the Tribunal indicates that Mr Jiang apparently organised when material would be available, and the applicant was involved only in collecting the material.(CB 89.9-90)
This again is a finding of fact open to the Tribunal based on the evidence provided by the applicant.
The fourth issue in the first ground relates to the applicant’s religious practice since arriving in Australia. The applicant claims that it is not unusual that a new arrival in an alien environment and unable to understand the local language would not be immediately able to find a local church. The Tribunal made the following finding:
The Tribunal accepts the written evidence from the Christian Assembly of Sydney, Roseville, provided by the applicant, and confirmed by the letter’s signatory, Mr Ng, that the applicant has attended a church service in Sydney in September 2005. The evidence does not establish, however, that the applicant has attended that church on a regular basis since that time…the Tribunal is not satisfied from the applicant’s evidence that he has attended church services at Roseville on a regular basis, as opposed to the one service it has been confirmed he attended in September 2005. The Tribunal is not satisfied that the applicant has attended regular church or religious services since his arrival in Australia. The Tribunal finds that the applicant’s evidence in respect of his attendance at the Christian Assembly of Sydney in Roseville is an attempt to bolster his claim that he is a committed Christian and that he will be persecuted because of his religion if he returns to China.(CB 91.5)
Again, this is a finding of fact open to the Tribunal based on the material presented by the applicant.
The four issues identified in the first ground of the amended application seeks merits review. Merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of an earlier decision. The function of judicial review is to determine whether the earlier decision-maker was authorised to make the decision it did under the prevailing law, not whether the decision was the best decision which could be made in the circumstances. Merits review is not available in this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ. The applicant has clearly misunderstood the purpose of these proceedings. The first ground of the amended application cannot be sustained.
The second ground of the amended application claims that the Tribunal failed to comply with its obligation under s.424A(1) of the Act. The applicant refers to the four issues identified in ground one:
a)His inability to account details of the fishing trip when the vessel was caught in the storm and the loss of lives of his two companions.
b)The assessment of his religious knowledge.
c)The transportation of religious material.
d)His religious practice since coming to Australia.
The applicant claims that in the period from the Tribunal hearing to the handing down of the decision, the Tribunal failed to send him a letter indicating that these four issues were relevant to the outcome of the applicant’s review and inviting him to comment. He claims that this alleged failure breaches s.424A(1) of the Act. Attached to the Tribunal application is a statement prepared by the applicant, which states that he is a devout Christian and details his participation in religious worship in China and Australia since his arrival. At the commencement of the Tribunal hearing, the applicant provided his national identity card, a police identification document, passport and letter from the Christian Assembly of Sydney. The Tribunal decision sets out in detail the applicant’s oral evidence together with the discussion in respect of that evidence which incorporated the four issues identified in the first ground. In the absence of a transcript of the hearing, the Court can only rely on the decision record. The record does not indicate that the applicant was left in any doubt as to the significance of these issues to his application. He was openly invited to provide details in respect of each issue. There is nothing to indicate that the Tribunal required further explanation on any of these issues. The Tribunal based its decision on a lack of satisfaction in respect of the applicant’s claims as opposed to a lack of explanation which could be remedied by further comment from the applicant. See SZBEL v Minister for Immigration (2006) 231 ALR 592 at [40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ:
More than once it has been said that the proceedings in the tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made.
The Tribunal record clearly indicates that this occurred and that the applicant was given adequate opportunity to set out his claims which were examined and discussed with the Tribunal member. The notion that these issues are to be re-put to the applicant for him to further develop the claim, is misconceived. I am satisfied that there was no obligation under s.424A(1) of the Act and that this ground cannot succeed.
The third ground claims that the Tribunal failed to comply with s.425 of the Act. The complaint is that although the applicant attended a Tribunal hearing, the Tribunal failed to provide him with a genuine opportunity to present his oral evidence. Again, this claim is made in the absence of a transcript or hearing tapes of the hearing. The decision record, which is the only evidence before me, indicates that there was a lengthy and comprehensive discussion of the issues. However, the decision record does not purport to be a complete record of the Tribunal hearing. The Tribunal decision does indicate that the Tribunal did give the applicant an opportunity to address critical issues and it is inappropriate to infer that it did not canvass the issues identified in the first ground with the applicant during its hearing: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241. In the absence of particulars to this claim, I am satisfied that this ground cannot be sustained.
The fourth, fifth and sixth grounds appear to interrelate as they identify evidence that the applicant claims the Tribunal failed to consider. Although the Tribunal did not find in favour of the applicant in relation to his claims of being a policeman, having escaped from China under another name and being a Christian, that does not mean that the Tribunal failed to consider the evidence which allegedly supports these claims. It is clear from the decision record that the Tribunal did consider each of these claims.(CB 88-90, 92) A rejection of the claims does not mean that there was jurisdictional error. The Tribunal also dealt with the identity documents and the letter from the Christian assembly in Sydney. I am satisfied that the Tribunal dealt with the documents appropriately and it adequately explained the reason for its decision.
The seventh ground effectively repeats the second and third grounds and requires no further consideration.
The eighth ground claims that the Tribunal failed to consider relevant independent country information, such as a United States Human Rights Report. The Tribunal decision sets out 11 separate reports it considered on a range of topics prepared by various sources. It is not clear which report the applicant says was not considered, as the description provided in the amended application is general and may apply to any number of reports. It is not possible to pursue this claim further, other than to note that the Tribunal did consider a number of reports sourced from the United States which fit the general description and that the reports identified in the decision were considered collectively by the Tribunal. This ground cannot be sustained.
The ninth ground is a general statement of dissatisfaction expressed by the applicant about the outcome of the Tribunal decision but does not identify any ground of review.
Conclusion
The applicant appeared at the Court hearing as a self-represented litigant with the assistance of a Mandarin interpreter. The applicant has had the assistance of a registered migration agent since he filed his original protection visa application in August 2005. That agent assists many visa applicants who appear in this Court and is familiar with this jurisdiction. The applicant has received assistance at all stages in respect of the original protection visa application, the Tribunal review and the preparation of documents submitted to this Court. The applicant clearly had little understanding of the issues before the Court and proceeded with what appears to be a misunderstanding that this hearing was a complete rehearing of all the issues relevant to the visa application. In effect, a merits review. This Court is obliged to independently consider whether any argument based on the material contained in the Court Book, in particular the Tribunal decision, can support a claim of jurisdictional error. It is not apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant pay the respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 13 July 2007
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