SZITO v Minister for Immigration

Case •

[2007] FMCA 1421

•

14 August 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZITO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1421
MIGRATION – Review of Refugee Review Tribunal decision – applicant claimed Tribunal did not put country information to him in writing – country information falls within s.424A(3)(a) exception – applicant was invited to a hearing – Tribunal put determinative issue to the applicant – no jurisdictional error – application dismissed.
Migration Act 1958, ss.36(2), 424A, 422B, 424A(1), 424A(2), 424A(3)(b), 425
Minister for Immigration and Multicultural Affairs v Lay Lat[2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004]FCAFC 264
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
VJAFv Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Applicant: SZITO
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1216 of 2006
Judgment of: Nicholls FM
Hearing date: 14 August 2007
Date of Last Submission: 14 August 2007
Delivered at: Sydney
Delivered on: 14 August 2007

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Appearance for the Respondents: Mr G. Johnson
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

  2. The application to the Court made on 28 April 2006 is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1216 of 2006

SZITO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT


(Ex Tempore: Revised from Transcript)

  1. This is an application filed in this Court on 28 April 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 March 2006 and handed down on 4 April 2006, to affirm a decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

  1. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 4 November 2005. On 1 December 2005, he lodged an application for a protection visa with the first respondent’s Department and on 13 December 2005, a delegate of the respondent Minister refused to grant a protection visa. On 3 January 2006, the applicant applied for review of that decision.

Applicant’s Claims

  1. The applicant’s claims to protection are contained in his application for a protection visa (reproduced at Court Book (“CB”) 1 to CB 25) and in his application for review (CB 42 to CB 47). The applicant claimed to fear religious persecution due to his membership of an underground Christian church. He also claimed that as a result of his involvement with the underground Christian church he was arrested on three occasions and on the third occasion he was detained for 14 days, beaten and dismissed from his job.

Tribunal’s Findings

  1. The Tribunal’s “Findings and Reasons” are reproduced in the Tribunal’s decision record (CB 61 to CB 72) at CB 69.2 to CB 71.8. The Tribunal found:

    1)There were three fundamental issues in the case, namely, whether the applicant was a Christian in China, whether, as a Christian, the applicant belonged to an underground church and was subject to persecution for that reason, and whether the applicant faced a real chance of persecution on his return to China (CB 69.3 to CB 69.4).

    2)The applicant demonstrated very little knowledge of the Bible or the Christian faith (CB 69.6).

    3)Whilst the applicant made reference to Genesis and the psalms in the Old Testament and to the Book of Ephesians in the New Testament, these references were very casual and at best very basic, and did not form a sufficient or credible basis for the Tribunal to conclude that he had been associated with the Christian religion as he claimed (CB 69.6 to CB 69.8).

    4)The applicant could not provide a “credible foundation from which it could draw a reasonable inference to support the applicant’s claims that he was a Christian in his country” (CB 69.10 to CB 70.1).

    5)It was “incredulous” that a person who claimed to have persisted in his religious beliefs, read the Bible in spite of arrests, detentions and fines, and left his country to escape persecution because of his religion, could not provide basic and credible knowledge of that religion or the Bible which he claimed to have studied to his peril (CB 70.1 to CB 70.2).

    6)At the hearing, the testimony of the applicant regarding his Christianity was far from credible (CB 70.3).

    7)The applicant left the Tribunal with the impression that he knew little or nothing about Christianity or the Bible (CB 70.3).

    8)On the evidence, the applicant was not a Christian in China (CB 70.3).

    9)The Tribunal’s non acceptance of the applicant’s claims that he was a Christian undermined his claims he was subject to persecution because of his Christian activities in an underground church (CB 70.6 to CB 70.7).

    10)That apart from his bare claims he was subject to persecution, the applicant did not provide any credible supporting information that allowed the Tribunal to accept his claims of persecution on the grounds of his religion (CB 70.8).

    11)On the evidence, the applicant’s claims that he was subject to persecution on three occasions because of his Christian activities were not credible and accordingly rejected this claim (CB 70.8 to CB 70.9).

    12)It did not accept the basis of the applicant’s claim that he was dismissed from work because of his association with the church and his failure to heed the warnings of his employer and accordingly rejected this claim (CB 71.1).

    13)In relation to his claim that the authorities used to come to his house to warn him not to participate in the activities of the underground church, since the applicant was neither a Christian nor a member of an underground church, it was not plausible that the authorities would have come to warn him not to participate in the activities of such a church and it rejected this claim accordingly (CB 71.2 to CB 71.4).

    14)The evidence before the Tribunal did not disclose any credible basis of persecution against the applicant, and given that the Tribunal did not accept the applicant was a Christian in China or that was subject to persecution because of his activities in an underground church, it therefore was not satisfied the applicant had a genuine fear of persecution on the grounds of his religious beliefs on his return to China (CB 71.5 to CB 71.8).

    15)Having considered the evidence as a whole, it was not satisfied the applicant satisfied the criterion as set out in s.36(2) of the Migration Act 1958 (“the Act”) and therefore affirmed the decision not to grant a protection visa (CB 71.8 to CB 71.10).

Application to the Court

  1. The application before the Court essentially puts forward the following grounds:

    1)Procedures that were required by law to be observed in connection with the making of the decision were not observed.

    2)A breach of the rules of natural justice occurred in connection with the making of the decision.

    I note also that under the further heading of “Particulars and Grounds”, the applicant asserts a breach of s.424A of the Act in relation to the Tribunal’s alleged failure to put before him independent country information.

  2. At the hearing before the Court, the applicant appeared unrepresented with the assistance of an interpreter in the Mandarin language.  Mr Johnson appeared for the first respondent. I also have before me, written submissions filed on 6 August 2007 on behalf of the respondent Minister.

  3. Despite some explanation by the Court of the nature of the proceedings this morning, the applicant was not able to assist the Court further to what he had put before the Court in his application.  I should just note that on the Court's file is a report from a lawyer on the panel of the Federal Court Legal Advice Scheme to whom the applicant had been referred for advice pursuant to that scheme, and I note from that report that the applicant did not appear at consultation with that lawyer on the day for which it had been scheduled, but that nonetheless, advice had been prepared and sent by post to the applicant and dated 6 July 2006. 

  4. In looking then at the application and the Tribunal's decision, I note firstly that this is a matter to which s.422B of the Act applies, to make the matters set out in Division 4 of Part 7 of Act, an exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat[2006] FCAFC 61, SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62).

  5. To the extent that the applicant complains that the Tribunal relied on independent country information in the making of its decision and that this was not put to him pursuant to s.424A(1) of the Act, presumably, this is with reference to the manner as required by s.424A(2) of the Act, that is, in writing, and with reference to what the majority of the High Court said in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. In this regard, I can only agree with the Minister's submissions that there is now very clear Full Federal Court authority that country information relied on by the Tribunal in this case comes within the exception contained in s.424A(3)(a) of the Act from the obligations set out in s.424A(1) of the Act (VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [14] per Giles and Conti JJ (with Allsop J agreeing at [21]), Minister for Immigration & Multicultural & Indigenous AffairsvNAMW  [2004] FCAFC 264, WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]-[45], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and VJAFv Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178). On this basis, what appears to be the major complaint in the applicant's application does not succeed.

  6. I note further, that to the extent that the Tribunal's findings relied on information, a plain reading of the Tribunal's decision record reveals that the Tribunal relied on what the applicant himself said at the hearing before the Tribunal and as such this is clearly information provided by the applicant for the purposes of the review, and falls within the exception set out in s.424A(3)(b) of the Act from the obligation pursuant to s.424A(1) of the Act.

  7. Even further, I note that the applicant was invited to a hearing before the Tribunal pursuant to s. 425 of the Act (CB 50 and CB 52). I note that the invitation to the hearing makes specific reference to the fact that in addition to attending the hearing, the applicant had the opportunity to send in new documents or written arguments that he wished the Tribunal to consider.

  8. I note the applicant did attend at hearing on 22 February 2006 (CB 54). The Tribunal's unchallenged account of what occurred at the hearing (unchallenged before the Court and by any other evidence), is contained in its decision record at CB 65 to CB 67.  

  9. It is plain that the determinative issue in this case, and I say this with the recent High Court authority of SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 in mind, was that the Tribunal did not believe that the applicant was a Christian. This was clearly an important issue in the delegate's decision (see CB 39 where it was raised and addressed).

  10. Even further, the applicant could have been left in no doubt that this was the determinative issue in his case during the hearing before the Tribunal.  The Tribunal reports that it put it to the applicant that as someone who claimed that he regularly attended church once a fortnight from 2000 through to 2005, and for someone who persisted in his belief in Christianity and claimed to have suffered persecution on three separate occasions because of his Christianity, it seemed strange that he did not know much about the Bible.  Later, the Tribunal also reports that it emphasised to the applicant that for someone who claimed to have been attending church for four to five years and further claimed to have been attending Christian churches in Sydney, it was surprising that he knew so little of the Bible.

  11. To that extent, that it may be said that the Tribunal's finding that the applicant was not a Christian, was dependent on what the applicant himself had said to the Tribunal, and did not rely on any independent country information. 

  12. To the extent, however,  that the Tribunal did rely on such independent country information in its subsequent consideration of the situation regarding members of underground churches in China (which it set out at CB 68 in its decision record), then, clearly, such information was a factor in the delegate's reasoning (see for example CB 40.8), such that the applicant would have been well aware at that time of the existence of country information and its application to members of unregistered churches in China, such that the applicant cannot complain that he would have been unaware of the relevance of this issue to the ultimate disposition of his refugee claim.

  13. On what is before the Court now, the Tribunal did not believe the applicant was a Christian as he had claimed.  This finding was plainly open to the Tribunal on what was before it, and it gave reasons for this finding, and it has been often said that such findings, including findings on credibility, are for the Tribunal to make in the exercise of its function as the decision maker “par excellence” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, per McHugh J at [67]).

  14. On what is before the Court today, I cannot see that the Tribunal breached any of the relevant statutory obligations in the conduct of the review.  For that matter I cannot see that there was any denial of procedural fairness even at general law.  I cannot see jurisdictional error in the Tribunal's decision either on the basis as put forward by the applicant in his application or otherwise on any other basis.  In all, therefore, the application to the Court is dismissed.

  15. It is appropriate that a costs order be made in this matter, I cannot see that there is anything that would argue against the making of such an order, and further, in all the circumstances, it is my view that $3,000 is a reasonable amount in light of the work the Minister's solicitors have done in responding to the applicant's application. 

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

Associate: 

Date:  20 August 2007

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