SZILS v Minister for Immigration - [2007] FMCA 489

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZILS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 489

MIGRATION – Review of RRT decision − where the Tribunal found the applicant’s claims of persecution not to be credible − whether the Tribunal’s assessment of the applicant’s claim was logical − whether a review court can substitute its own views for those of the Tribunal − whether a review court can make findings on alleged errors in translation at the Tribunal hearing in the absence of probative evidence − whether the Tribunal gave the applicant an opportunity to demonstrate her knowledge of Christianity − whether the Tribunal complied with s.424A by not warning the applicant of its impending decision − whether the Tribunal decision evidences bias.

Migration Act 1958, s.424A

Ex parte Durairajasingham (2000) 168 ALR 407
MZWEL v Minister for Immigration [2006] FCA 1696
SZEPV v Minister for Immigration [2006] FCA 673
SZDFO v Minister for Immigration [2004] FCA 1192
NAAH of 2002 v Minister for Immigration [2002] FCAFC 354
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Soltanyzand v Minister for Immigration [2001] FCA 1168
VAF v Minister for Immigration (2004) 206 ALR 471
SZEEU v Minister for Immigration (2006) 230 ALR 1
Minister for Immigration v Jia (2001) 205 CLR 507
NAAG of 2002 v Minister for Immigration [2004] FCA 713

Applicant:

SZILS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG677 of 2006

Judgment of:

Raphael FM

Hearing date:

21 March 2007

Date of last submission:

21 March 2007

Delivered at:

Sydney

Delivered on:

21 March 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr J Mitchell

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant shall pay the First Respondent’s costs fixed in the sum of $4,600.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 677 of 2006

SZILS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the Peoples Republic of China. She arrived in Australia on 21 August 2005. On 27 September 2005 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 14 November 2005 a delegate of the Minister refused to grant a protection visa and on 12 December 2005 the applicant applied for a review of that decision. The Refugee Review Tribunal held a hearing which was attended by the applicant and on 23 January 2006 determined to affirm the decision not to grant a protection visa. The Tribunal handed that decision down on 2 February 2006.
The grounds upon which the applicant claims that she is a person to whom Australia owes protection obligations are found in a statutory declaration made by her at [CB 28-30]. There are two grounds of alleged persecution. The first relates to the fact that in 2004 she gave birth to her second child. She had previously left the home of her husband and first child in order to proceed with her pregnancy at the home of a distant relative. She remained with that person until after she had given birth. Under that person’s influence the applicant claimed that she became a member of an underground Christian Church known as the Recovery Local Church which appears to be affiliated to the movement known in China as “the Shouters”. The applicant was baptised into this Church and accepted its teachings.
Upon her return to her home following the birth of her second child, the applicant claims that she was visited by officials from the birth control office and policemen from the Public Service Bureau. She was taken away in a police car and deposited at a temporary clinic where she claims she was forcibly required to undergo a tubal ligation. She says that this procedure made her physically and mentally ill. She was required to pay a penalty to the birth control office. During this traumatic incident she was assisted by members of the Church group. The applicant then took more interest in the group and together with members established a women’s bible study group at her home.
The applicant says in her statement that after January 2005 the police began to take a serious interest in the work of the Shouters in her village. Investigations took place as a result of which she was questioned about 11 or 12 times. The applicant says that members of the group were arrested by the PSB and she was lucky enough to escape before they came to her. She went into Shenzhen and hid there until she left China on 20 August 2005 with the help of a friend who organised her trip.
When the applicant came to the Tribunal she maintained the story that she had set out in her statutory declaration and which I have précised above. The Tribunal appears to have commenced its determination of her application by questioning her about her family and in particular about her husband. It then proceeded to ask the applicant what she knew about Christianity:
“She said that she converted in 2003 and has attended Bible reading classes and read the messages of the Gospels. She sung the Tribunal a poem and described it as a voice from her heart. She said that when she preached to others in her group she told them God was supreme and could do anything. She said, “We believe in the trinity of God”. She said that the basic teaching of the Christian religion is “to glorify God”. The Tribunal asked the applicant what she did to organise the Bible study group which she refers to in her claims. She said that she was helped by her brother and from Monday to Wednesday they helped women read the Bible. On Thursdays they saw those “hesitant”, Fridays there was free time and on Saturdays they had a weekend gathering. She explained that one of the Bible readings was from Matthew’s Gospel about Jesus’ quietening of a storm.”
The Tribunal then went on to question the applicant about the problems with the PSB relating to the birth of the second child and the tubal ligation.
“The Tribunal asked the applicant why when she gave birth to her child in March 2004, she arranged for her passport and visa to Indonesia to be issued in April 2004. She said that she arranged it because she had a feeling that the family planning officials would come after her. The Tribunal noted that it found that explanation implausible given that she returned to her usual address at her mother’s home and stayed there living with her husband and children until she came to Australia, according to the evidence she gave the Tribunal earlier in the hearing. She said that during this time she was interrogated and scared and asked her friend to make arrangements.”
The Tribunal questioned the applicant further concerning her fears of returning to China and referred her to certain independent country information which indicated that requiring persons to undergo tubal ligations was illegal in China and asked her why she did not complain about it. It might be thought that her response that “the ligation was done and it was useless, she said that it was typical behaviour” had a ring of truth about it.
The Tribunal did not accept the applicant as a credible witness. It did not believe that she converted to Christianity in China, joined the Shouters sect, formed a Bible group or was made to undergo a forcible tubal ligation [CB 80‑82]. The Tribunal gives its reasons for coming to these conclusions. They may not be the conclusions that another Tribunal would have reached. Another Tribunal may not have defined her answers concerning religion as rudimentary or found that those responses were inconsistent with her claims that she was a Christian and had been since 2003. This court is not advised of the expertise held by the Tribunal as to the average state of knowledge of the Christian religion by recent converts to it in China.
These are all matters which are within the task allotted to the Tribunal and as has been said on many occasions decisions about credibility are decisions of the Tribunal “par excellence”: Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]; MZWEL v Minister for Immigration [2006] FCA 1696 per Ryan J at [53]; SZEPV v Minister for Immigration [2006] FCA 673 per Collier J at [15]. Whilst one might not agree with the assessment made by the Tribunal it would be difficult to say that it was not a logical assessment based upon rational grounds. It is not the job of the court to substitute its views for those of the Tribunal: SZDFO v Minister for Immigration [2004] FCA 1192 per Allsop J at [12]; NAAH of 2002 v Minister for Immigration [2002] FCAFC 354 per Gray, Moore and Weinberg JJ at [27].
The applicant filed an amended application in this court on 2 May 2006 in which she states, as she did before me, that she found it hard to believe that the Tribunal had not accepted her evidence. Most of the submissions that she then follows with in the document are submissions which, if they were to have any chance of success at all, would require the applicant to have produced, at the very least, the tape and preferably a transcript of the Tribunal hearing. As Mr Mitchell points out in his helpful written submissions filed on behalf of the Minister, where claims are made that errors occur in the translation or interpreting services at a hearing they must be supported by probative evidence Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 and Soltanyzand v Minister for Immigration [2001] FCA 1168.
The applicant also alleged that the Tribunal did not properly give her an opportunity to demonstrate her knowledge of Christianity. Once again, and particularly in view of what is said by the Tribunal at [CB 76], the court would be unable to take this matter further without a transcript or tape. The applicant submits that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act 1958 (the “Act”). The particulars that she provides seem to be suggesting that the Tribunal was required to warn the applicant of its impending decision and that it did not accept her responses to its questioning. My reading of the decision would indicate that there is some suggestion that this was done, although without a transcript one can never be sure. In any event, it is now clear that the Tribunal is not obliged to provide particulars of its objective appraisals of the applicant’s credibility as this does not constitute information VAF v Minister for Immigration (2004) 206 ALR 471; SZEEU v Minister for Immigration (2006) 230 ALR 1.
To the extent that the claim under 424A relates to country information that might have been used by the Tribunal, this of course is exempted under s.424A(3)(a) and certain information which the Tribunal used relating to the applicant having a visa for entry into Indonesia was information provided by the applicant being information contained in her passport which the applicant gave to the Tribunal at the hearing. I am unable to see that any breach of s.424A has occurred.
The applicant also makes a generalised complaint of bias on the part of the Tribunal. Once again, in order for this submission to have been made out it would be necessary to look to what occurred at the hearing because it is clear to me that no bias was intimated on the face of the decision itself. It seems to me that the applicant is complaining because her story was not accepted notwithstanding its apparent credibility.
Before me today the applicant stated that she was unable to fully express her answers to the Tribunal and that she wanted another opportunity of a hearing. She also said that she thought the Tribunal was biased against the Shouters. Any allegation of bias must be clearly made and proved (Minister for Immigration v Jia (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [89]; NAAG of 2002 v Minister for Immigration [2004] FCA 713 per Allsop J at [24]) and the applicant has been unable to do this. Something more must be shown than merely adverse findings reasonably open on the evidence. In all of the circumstances I am unable to say that the Tribunal fell into any jurisdictional error in the manner in which it came to its decision in this particular case. I dismiss the application. I order that the applicant pay the respondent’s costs in the sum of $4,600.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: