SZILL v Minister for Immigration - [2007] FMCA 1507

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZILL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1507

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, ss.91R, 424A, 425

Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL vMinister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF vMinister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZILL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG654 of 2006

Judgment of:

Barnes FM

Hearing date:

21 August 2007

Delivered at:

Sydney

Delivered on:

21 August 2007

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondents:

Ms B. Nolan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,300.
That the name of the first respondent be amended to read Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG654 of 2006

SZILL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 31 January 2006 affirming decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China, arrived in Australia in August 2005. In September he applied for a protection visa. He claimed in essence to fear persecution on the basis of his religion as a Christian. He also made claims about the treatment of his parents during and after the Cultural Revolution in China.
The application was refused and the applicant sought review by the Tribunal. He had the assistance of a migration agent. He did not provide any further claims in writing to the Tribunal.
The material before the Court includes the Tribunal acknowledgement of the review application and a copy of an invitation to a hearing. In each of those letters the applicant is asked to provide any documents, information or other evidence he wishes the Tribunal to consider. The applicant attended a Tribunal hearing.
In its reasons for decision the Tribunal set out the applicant’s claims in connection with the protection visa application and as made during the hearing. In particular he claimed that his parents, who had both been Christians, had been taken into labour camps during the Cultural Revolution and that his father had died during a “frigid” winter while in the camp. The applicant claimed that he had spent some nine years in the labour camp with his mother and that his mother later died as a result of consequences in relation to her health from time in the camp.
The applicant claimed that between 2002 and 2004 he participated in an underground Bible study group organised by his uncle’s nephew (Mr L), and that he assisted with the administration of the group. He claimed that he was baptised and helped to maintain contacts with Christians in the group and organise gatherings and that he read and distributed religious propaganda material. At the same time he worked in Mr L’s transport business.
He claimed that in January 2005 Mr L was arrested by the PSB in relation to distribution of Christian propaganda materials, and that the police suspected him as he was Mr L’s assistant in his transportation business. He claimed that he was detained for a week and subjected to inhumane treatment, but that he refused to confess and was released.
He claimed that he was then asked to be in charge of the study group, that his uncle obtained a passport in case there were further troubles and that in August 2005 (when other Christians in his group were under investigation) his uncle arranged for him to go overseas through a friend who worked for the PSB.
He claimed that after he arrived in Australia he was informed that named key members of his underground church had been arrested by the PSB and that he had become the target of the PSB because he was regarded as one of the “key members” in the underground church.
In its findings and reasons the Tribunal found that the claims in the protection visa application about the applicant’s Christian faith were “extremely vague in nature” and contained “no detailed information about what his faith is, or even what denomination he belongs to”. It found there was also an absence of detail about what Christian religious activity, if any, the applicant had been involved in in his time in Australia and no attempt by the applicant in the protection visa application to explain his claimed Christian faith and what it meant to him, or to provide any documentary evidence to support his claims that he was a Christian in China.
The Tribunal stated that accordingly at the hearing it had attempted to explore the applicant’s claims to be a Christian. It set out at some length its questions and the applicant’s responses. It recorded that when asked about his claim to be a key member and leader of the underground church, the applicant replied that Mr L was arrested in January 2005. He claimed that he had been reading the Bible approximately twice a week since April 2002, that there were meetings every week, that in the Bible Study Group he preached the gospel, contacted believers and distributed material. He also made claims about increased responsibility for liaison with attendees at the Bible Study Group and distribution of religious material after Mr L was arrested in January 2005. The Tribunal also set out the applicant’s evidence when he was asked to tell the Tribunal about “the gospel message” and provide further detail in that respect.
The Tribunal stated that it would have reasonably expected the applicant to articulate his faith and outline on what it was based especially as it had written to him and told him that the Tribunal was unable to make a favourable decision on the information he had provided.
The Tribunal was satisfied that if the applicant was a Christian in China who attended an organised Bible Study Group as he claimed, then he would have provided considerably more information about his involvement in activities such as prayer meetings, Bible study, underground or other home church services and would have made some attempt to articulate his faith. It had regard to his failure to provide any documentary evidence to support his claim that he was a Christian in China. In light of these factors it was satisfied, from what it described as the applicant’s “vague and unsupported claims that reveal no substantive knowledge of the Bible or more importantly little knowledge and awareness of the basic tenants of the Christian faith” that he was not a Christian in China. Nor was it satisfied that he had any involvement with the underground church or Bible Study Group. It did not accept that the applicant was detained for a week in January 2005 because he was suspected of becoming involved in Mr L’s activities. It was satisfied that he had embellished his claims to enhance his claims for a protection visa and that he was not a credible witness.
On this basis the Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason if he returned to China. The Tribunal found that it followed that it did not accept the other claims that flowed from this, including the applicant’s claim that in September 2005, after his arrival in Australia, he had been informed by a named person of the arrests of other persons and that he had become a target of the PSB as a key member in the underground church, that he led a Bible Study Group in China, distributed religious material, had been persecuted as a member of the underground church and “would surely” be arrested and persecuted on his return to China for a Convention reason.
The Tribunal also had regard to independent country information in relation to the issue of passports and departure from China (issues which it stated it had raised with the applicant at the hearing). While it accepted that obtaining a passport and leaving China were two separate processes, it also accepted the independent country information over unsupported claims made by the applicant. It was satisfied that he would not have been issued with a Chinese passport in April 2005, in his correct name, date of birth and with his photograph if he was of any interest to the Chinese authorities.
The Tribunal also accepted that the applicant was able to leave China without being detained, interrogated or questioned, and was satisfied that he was not of any interest to the authorities in China for any reason whatsoever.
The Tribunal then set out the applicant’s claims in relation to the treatment of his parents and himself from the time of the Cultural Revolution which it said could, at one level, be taken to be a wider reference to the applicant’s “objection to the more generalised system of human rights abuse and religious and political suppression that he believes limit religious and political freedom in China”.
The Tribunal accepted that the freedom to express political and religious views and the approach to human rights were different in Australia compared to China. However it noted that the applicant did not make any further specific claims in this regard not already dealt with and that he had not provided any evidence to support such claims. From his unlimited and unsupported claims the Tribunal found that it had not been able to satisfy itself that there was a real chance that he would experience persecution for a Convention reason on this basis, if he returned to China.
Finally the Tribunal addressed the evidence given at the Tribunal hearing by a witness on behalf of the applicant who told the Tribunal the applicant had started to come to church services in Australia in August 2005 and that he was in a hurry to go home afterwards. The Tribunal accepted this evidence as to the applicant’s usual attendance once a week at church services in Australia, as claimed, but noted the absence of any claim as to other activities such as attendance at mid-week Bible studies or prayer meetings.
The Tribunal found, given its earlier finding that the applicant was not a Christian in China, that the only reason the applicant had usually attended a church service on Sunday in Australia was to enhance his claim for a protection visa. Hence pursuant s.91R(3)(b) of the Migration Act 1958 (Cth) it disregarded his attendance at church on Sundays in Australia and did not accept that his attendance indicated that he was a Christian, or that he would be persecuted for this reason if he returned to China.
The Tribunal concluded that considering the applicant’s claims individually and collectively it was satisfied there was not a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason if he returned to China now or in the foreseeable future.
The applicant sought review of the Tribunal decision by application filed in this Court on 2 March 2006. He also filed an affidavit attaching the Tribunal decision. He relies on an amended application filed on 5 June 2006.
The grounds in the amended application are expressed generally as a contention that there was an error of law, or procedural error, constituting an absence of natural justice. After setting out some particulars the amended application contends that the Tribunal committed a jurisdictional error in four respects. First, that it identified a wrong issue, relied on irrelevant material and made an erroneous finding in determining the review application. Second, that it failed to comply with its obligations under s.424A(1) of the Migration Act 1958. Third, that it failed to comply with its obligations under s.425 of the Act. Finally, that it used a wrong test to assess the applicant’s credibility.
In both the amended application and oral submissions the applicant summarised his claims as a claim that the Tribunal did not deal with his case fairly. I have considered each of the grounds relied on and also the particulars in the amended application insofar as they may raise other issues.
As counsel for the first respondent contended the grounds are particularised variously in a number of ways. The first ground, that the Tribunal identified a wrong issue, relied on irrelevant material and made an erroneous finding, is not identified with any precision in the amended application. There is, however, nothing in the material before the Court to support any contention that the Tribunal identified a wrong issue, relied on irrelevant material, or made an erroneous finding in a manner constituting jurisdictional error. In particular the Tribunal addressed the integers of the applicant’s claim as set out in the statement accompanying his protection visa application and as elaborated on in the Tribunal hearing. In that respect, as discussed further below, I note that the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
The first particular in the amended application may be intended to relate to this ground but I have also considered it more generally. It is that the Tribunal failed to assess the claims fairly and properly, that questions given by the Tribunal were unfair and that the applicant’s claims, as well as his answers, were not treated fairly.
It is contended that while the applicant was questioned in relation to his religious knowledge in the hearing, the Tribunal failed to consider the special circumstance that he had to face during the hearing, that he may be subject to particular difficulties owing to his experiences and suffering in the past and that it failed to consider that it would be difficult for an interpreter to verbally interpret the meaning of particular religious terms accurately and clearly. In the second particular a reference is made to what is said in the UNHCR handbook in relation to the situation of an applicant who may be in fear of authorities because of past experiences and the suggestion that untrue statements by themselves are not a reason for refusal of refugee status.
However there is nothing in the material before the Court, in particular in the Tribunal reasons for decision, to support any claim either that the Tribunal took into account a wrong issue or irrelevant considerations, or more generally to support a claim of jurisdictional error in relation to the conduct of the hearing. On the contrary, it appears from the Tribunal reasons for decision that the applicant was given the opportunity to elaborate on his claims and on his knowledge of Christian principles and that at the conclusion of the hearing the applicant was given the opportunity to put any other claims, or matters, that he wished to put to the Tribunal.
There is nothing to suggest that the Tribunal failed to understand the applicant’s claims. In coming to its findings the Tribunal stated that it accepted that a person’s faith was a personal matter and that different people have different levels of knowledge, interpretation and understanding about what their faith means to them. Insofar as the applicant takes issue with the Tribunal findings and seeks merits review, merits review is not available in this Court.
Insofar as this claim is intended to relate to the evidence of the witness who appeared on behalf of the applicant the Tribunal specifically addressed and indeed accepted that evidence. It was however entitled to disregard the applicant’s conduct in Australia pursuant to s.91R(3)(b) of the Migration Act, given its findings that the only reason the applicant had usually attended a church service on Sunday was to enhance his claim for a protection visa. Hence this claim, which is repeated in para.1(f) of the particulars, does not establish a jurisdictional error.
The applicant also takes issue with what was said to be the Tribunal member putting questions to the witness (described as a priest) unfairly. The applicant asks: “How could the priest in Australia give any evidence in relation to [the applicant’s] religious activities in China?” However there is nothing in the Tribunal reasons for decision to suggest that the Tribunal relied on the witness’ evidence in relation to the applicant’s activities in reaching its conclusion in relation to his activities in China. Rather it was the applicant’s vague and unsupported claims and an absence of evidence revealing a substantive knowledge of the basic tenants of the Christian faith.
The next ground is that the Tribunal failed to comply with its obligations under s.424A(1) of the Act. This claim was repeated in oral submissions. When asked what information was said to be within s.424A(1) of the Act, the applicant referred to written information in relation to religion. In the amended application reference is made to the Tribunal member relying on what is described as, “aged” independent country information about passport and exit procedures in China.
While the Tribunal is obliged under s.424A(1) of the Act to put certain information to an applicant for comment, country information, as well as information provided by the applicant for the purpose of the review application, is outside that obligation by virtue of s.424A(3) of the Act. As submitted for the first respondent, while the Tribunal did refer to the applicant’s claims as set out in his protection visa application, the ultimate reason for its findings was that it was not satisfied that the applicant was a Christian.
In reaching this state of non-satisfaction it had regard to the vagueness of the applicant’s evidence, the lack of detailed information about his faith and activities, lack of an explanation about his faith or documentary evidence and his failure to provide clarification in a manner that satisfied the Tribunal in his evidence at the Tribunal hearing. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 the High Court referred (at [18]) referring to the observations of Finn & Stone JJ in VAF vMinister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476 – 477:
The word [information] does not encompass the Tribunal’s subjective appraisals, thought processes or determinations …nor does it extend to identify gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at the by the Tribunal in weighing up the evidence by reference to those gaps, etc.
In this instance the Tribunal had regard to omissions and the absence of supporting material in relation to aspects of the applicant’s claims, and the absence of substance to his claims.
Further, as indicated, country information would fall within s.424A(3)(a). No failure to comply with s.424A(1) is established in the circumstances of this case.
Insofar as the applicant takes issue with country information in relation to obtaining passports and leaving China, submitting that such information is apparently old and could not be used to describe the current situation in China, the weight attributed to individual items of country information is a matter for the Tribunal. While the Tribunal was not under an obligation to put such material to the applicant for comment under s.424A in fact it appears from the Tribunal reasons for decision that the substance of such information was raised with the applicant in the Tribunal hearing. His response, particularly in relation to obtaining a passport and leaving China being two separate processes, was addressed by the Tribunal in its reasons for decision. Insofar as it may be contended that the Tribunal ignored aspects of the applicant’s claims in this respect, it is not established on the material before the Court.

Moreover, the Tribunal understood and set out the applicant’s claims in relation to the arrests of others and his claim that his situation had changed since leaving China but did not, for the reasons that it gave, either accept that he was a Christian or that the other claims that he made flowing from that claim were established. In particular, it did not accept that if he returned to China he would be arrested and persecuted for a Convention-related reason, based on his Christianity and activities. Contrary to the contention in the particulars the Tribunal did not simply proceed on the basis that mere possession of a valid national passport was a bar to refugee status.
The third ground is that the Tribunal failed to comply with its obligations under s.425 of the Act. In the amended application the applicant contended that during the hearing the Tribunal never ensured that he understood what the actual issues were arising in relation to the decision under review so that he could not present arguments. It may be that this is an attempt to raise the principles considered by the High Court in SZBEL vMinister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592. However, the evidence before the Court does not establish such a claim.
As indicated, the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. From such reasons it appears that the issue as to whether the applicant was in fact a Christian as claimed, was raised and discussed at length with the applicant and that the Tribunal did take issue with what the applicant said, responded and invited him to amplify on the account he had given in connection with is protection visa application. There is nothing in the material before the Court to suggest that the Tribunal failed to discharge its statutory obligation under the Migration Act in this respect (see SZBEL at [3]).
In the amended application it is suggested very generally that the Tribunal failed to consider that it would be difficult for an interpreter to interpret the meaning of particular religious terms accurately. In oral submissions the applicant suggested that the interpreter had in fact failed to interpret some religious terms properly, as he put it, “according to the book”. When asked for clarification, he told the Court that a friend had listened to the tape and suggested that some terms had not been interpreted properly. However the applicant has not put on any evidence to substantiate such a claim. He has not particularised any concerns in this respect.
There is nothing in the Tribunal account of the hearing to suggest that there was any confusion or unresponsiveness or other indicators to suggest there may have been some difficulty with the interpretation at the hearing. No failure to comply with s.425, or other jurisdictional error is established on the material before the Court in relation to the conduct of the hearing.
The final ground in the amended application is that the Tribunal used a wrong test to assess the applicant’s credibility. There was no elaboration on this ground, except insofar as the particulars may have touched on this claim by suggesting that the claims were not assessed fairly or properly. However, it is well established that credibility is a matter for the Tribunal par excellence (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 625 per McHugh J). Such a finding was open to the Tribunal on the material before it for the reasons that it gave.
As indicated above, merits review is not available in this Court and there is nothing in the material before the Court to support a claim that the Tribunal used a wrong test to assess the applicant’s credibility.
The final particular simply addresses the notion of jurisdictional error by reference to what was said in that respect in Craig v South Australia (1995) 184 CLR 163 and Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389. This does not establish any such jurisdictional error.
In oral submissions the applicant raised a number of issues, some of which have been addressed above. In addition, he contended that he had no way to demonstrate his knowledge in relation to religion. In that respect I note not only that the Tribunal questioned the applicant about aspects of his religious knowledge, but also that it recorded that it put to him that it found his claims in his protection visa application to be a Christian did not reveal any understanding, knowledge of or commitment to the Christian faith. Further, in its letters to the applicant it indicated that it could not make a favourable decision on the information before it. It gave him the opportunity to provide further information. The Tribunal also gave the applicant the opportunity to put any other claims or matters to it at the Tribunal hearing apart from responses to the specific questions which it asked. No jurisdictional error is apparent in the manner contended for by the applicant.
The applicant also took issue with the Tribunal conclusion that he would not face persecution in China, on the basis that some of his friends had been arrested. However, as set out above, the Tribunal was aware of these claims as made in the protection visa application and at the hearing but rejected the claim that the applicant had a well-founded fear of persecution based on its underlying rejection of his claim to be a Christian in China, or to have engaged in the claimed activities. It is not established that the Tribunal failed to take into account his claims in this respect in a manner constituting jurisdictional error.
As no jurisdictional error is established the application must be dismissed. The applicant has been unsuccessful and the first respondent seeks that he meet the costs of these proceedings in the sum of $4,300. I consider that that amount is appropriate in light of the nature of this and other similar matters and that the unsuccessful applicant should meet the costs of the first respondent.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 6 September 2007