SZIUE v Minister for Immigration
[2006] FMCA 1551
•11 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIUE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1551 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China – applicant claims fear of persecution for reasons of his religion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 WAJP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 |
| Applicant: | SZIUE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1278 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 October 2006 |
| Date of Last Submission: | 11 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1278 of 2006
| SZIUE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for a review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 15th March and handed it down on 4th April 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant protection visa.
The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 4th November 2005 and applied for protection (class XA) visa on 1st December.
His application was refused on 29th December 2005. On 27th January 2006, the applicant applied to the Refugee Review Tribunal for a review of that decision. The application for review was lodged with the assistance of the applicant's migration agent. No extra information was lodged with the application. The Tribunal wrote to the applicant on 3rd February 2006 inviting to him attend a hearing on 13th March. The applicant attended that hearing and gave oral evidence. The Tribunal noted that the applicant claimed that he could not return to China because he is persecuted in China. He claimed that police had accused him of involvement in illegal religious activities.
He said that he had been a member of a family church. He first became involved in Christianity in March 2004 and in 2005 the authorities warned the applicant and his friends not to continue to be in religious activities. The Tribunal noted, at page 85 of the Court Book that it was difficult to understand how a group of workers at a construction site would come to the attention to the authorities and put that to the applicant. The applicant said that the authorities found out about them because they were distributing promotional material to other villages. The applicant said that his wife was Christian, but his children were too young.
The Tribunal referred to country information from the United States Department of State International Religious Freedom Report for China 2004. A quote from that report is set out on page 86 of the Court Book. The Tribunal's findings and reasons are set out on pages 86 through to 88 of the Court Book. The Tribunal noted the applicant's claims but came to the conclusion that the applicant was not credible in respect of key aspects of his claims for protection. As a result the Tribunal concluded that the applicant was not in genuine fear of persecution nor was there a real chance of persecution on his return to China.
The Tribunal did not accept that the applicant was involved in an illegal house church, which was discovered by the authorities.
The Tribunal considered the applicant's description of the house church to which he claimed to belong, to be tenuous and ill defined.
The Tribunal considered the applicant's description of how such a small group of people came to the attention of the authorities to be improbable and vague.
The Tribunal considered the applicant's claim that a group of workers working on the construction of a dam went about local villages giving out religious material would be highly improbable. The Tribunal did not accept that the applicant was a member of an illegal house church, which came to the attention of the police and, therefore, did not accept that the applicant was wanted by the Chinese authorities as they considered him to be a senior member of the house church.
The Tribunal accepted the applicant, since he arrived in Sydney, has attended church services at the Padstow Chinese Congregational Church, but does not accept that the applicant is a genuine Christian or that he would practice Christian religion on his return to China in a manner or form that would result in harm to him from the Chinese authorities.
The basis of that finding is that the Tribunal did not accept on the totality of the applicant's evidence that he became a Christian whilst in China in 2004 and that he practised as a Christian in a meaningful way. The Tribunal did not accept that the applicant has a well founded fear of persecution for a Convention reason on his return to China and is, therefore, not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal held that the applicant did not satisfy the criterion set out in s.36(2) for the grant of a protection visa.
The applicant commenced proceedings in this Court for a review of that decision on 4th May 2006. The applicant has filed an amended application on 24th July. On 26th July when the matter came before Burchardt FM, the application was adjourned until today for hearing.
The applicant has since filed an affidavit to which he has annexed a copy of the transcript of the Tribunal's hearing. The applicant sets out in his amended application the reasons why he believes he is entitled to relief. He has added a fifth ground in his amended application which, in my view, is no more than a reiteration of his factual claims.
The other four grounds are first that the Tribunal failed to assess his fairly and properly. Second that the Tribunal failed to comply with s.424A of the Migration Act. Third that the Tribunal failed to comply with s.425 of the Migration Act. And, fourth, that the Tribunal has never ever believed that his application was fairly and carefully assessed by the Tribunal.
The applicant has not filed any written submissions but told the Court in respect of his first claim that his application was not dealt with fairly and carefully; that the Tribunal member, when he appeared before the Tribunal, did not point out to him what was wrong with his answers. He believed that the Tribunal should have given him an indication of where it was that the Tribunal did not believe him.
In respect of his claims that the Tribunal breached the provisions of s.424A of the Migration Act, the applicant claimed that the Tribunal Member did not give him particulars of issues which had been mentioned before she reached her decision and did not give him a written outline of the issues upon which the Tribunal affirmed the delegate's decision. In respect of his claim under s.425, the applicant said that s.425 gives him two rights: one, to give oral evidence in support of his claims; and second, to present arguments against the issues arising from the Tribunal in relation to his application.
He submitted that the Tribunal severely restricted his right to give oral evidence by requiring him to give simple answers to the Tribunal member's questions. He also submitted that the Tribunal refused to make clear to him what the issues were in respect of his application so that he was not able to exercise a right to present his arguments against those negative issues in relation to his application. The fourth point is that the applicant never ever believed that his review application was fairly and carefully assessed by the Tribunal. I am of the view that that appears to be a re-statement of the first ground.
The solicitor for the respondent, Ms McDonald, submitted that the Tribunal decision ultimately turned on adverse credibility findings.
I am of the belief that that is a correct description. She submits that the Tribunal specifically dealt with the applicant's claims as put at the hearing and that the Tribunal's task is an inquisitorial review body is to ask questions, weigh evidence, and make findings of fact. That the Tribunal made adverse findings relating to the applicant's credibility was open to the Tribunal on the evidence presented by the applicant due to the lack of detail and implausibility of the applicant's claims.
As a result she submits those findings should not be disturbed upon judicial review.
I am referred to the decision of Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, in particular the judgment of McHugh J at [67]. It is also submitted that the Tribunal is not required to invite comment on its decision making thought processes. The authority for this proposition is given as WAJP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [29]. In my view, this submission is a key submission going directly to a major part of the applicant's claim.
The first respondent also submits that there was no breach of s.424A because there was no reliance on any information which might have raised obligations under that section and also submits that s.425 of the Act was complied with.
Dealing with those issues, in my view, there is no evidence that the Tribunal would not deal with the application fairly and properly.
The reasons for decision show that the Tribunal adequately set out the essence of the applicant's claim and dealt with the individual points.
Section 424A of the Migration Act appears to be the subject of a number of misconceptions. Section 424A requires the Tribunal, subject to subsection 3, to give to the applicant in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review and ensure as far as is reasonably practicable that the applicant member understands why it is relevant to the review and invite the applicant to comment on it.
Subsection 3 makes it quite clear that s.474 does not apply to information that is not specifically about the applicant or another person and is just about a class of persons which the applicant or other person is a member, in other words, independent country information, whoever the applicant gave for the purpose of the application.
Information does not apply to the Tribunal's thought processes or determination. In this case, the Tribunal did refer to independent country information and even though that independent country information is not specifically included in that section relating to findings and reasons I am of the view that it can still be said that country information was a part of the reason for the Tribunal affirming the delegate's decision. That country information was with United States Department of State International Religious Freedom Report for China 2004. That is information that is readily available and can be accessed on the internet.
Even though I have found that the country information may be regarded as a part of the reason for the Tribunal affirming the delegate's decision, that does not take it out of the protection of sub-s.424A(3)(a). It is not a breach of s.424A for the Tribunal to refer to that particular country information.
It is, in my view, only a part of the reason for the Tribunal affirming the delegate's decision; the major part of the reason is quite clearly the Tribunal's failure to accept the applicant's evidence as credible.
The Tribunal did not accept that the applicant gave credible evidence about the inference of his claim.
The applicant's evidence quite clearly comes within the protection offered by s.424A (3)(b) of the Migration Act as it is information that the applicant gave for the purposes of the application. As there is no breach of s.424A of the Migration Act that ground fails.
The applicant also claims that there is a breach of s.425 of the Migration Act and sets out two reasons why that is so. First, he claims that the Tribunal restricted him to answering the Tribunal's questions and, second, he was not informed by the Tribunal as to what the issues were that would count against him in respect of his application and give him the right to present arguments against that during the hearing.
It is well established by the decision of the Full Court of the Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] that a claim that the applicant's evidence was somehow unfairly truncated by the Tribunal or the applicant is in any way prevented from giving his evidence at the hearing would not succeed without evidence. In this case, the applicant has submitted a transcript of the Tribunal's hearing as evidence.
The applicant asked the Court to read through the entire transcript in order to make a finding that in some way he was not given the opportunity either to give evidence fully or present arguments against what was put to him by the Tribunal. In my view, it is not a breach of s.425 for a Tribunal member to ask the applicant to answer questions simply and clearly. The Tribunal in this case set out to the applicant at page 2 of the transcript that the convention contains a definition of a refugee and sets out the main criteria that the Tribunal applies to an applicant's circumstances to determine whether or not an applicant is a refugee. The Tribunal sets out the five reasons to be applied on page 3 of the transcript. It is not surprising, therefore, that a Tribunal member would seek to persuade by means of questions for the applicant to focus on the issues that are relevant to the Tribunal making any decision that the applicant meets the criteria set out in s.36(2) of the Act, in other words, to establish that he or she has a well founded fear of persecution for reasons for race, religion, nationality, membership of a particular social group, or opinion. The Tribunal did do that and, in my view, no criticism can be attached.
The Tribunal did draw the applicant's attention to certain parts of his evidence where the Tribunal was not satisfied that the applicant's account was credible. Ms McDonald for the first respondent drew the Court's attention to a passage at page 9 of the transcript where the Tribunal member said:
So I'm still not sure about how you said you belonged to an underground church because from what you told me that sounds that you are a group of workers who meet together read the bible. How is that a church?
On that same page the Tribunal member asks the applicant:
You see, I cannot understand that why there is just a group of workers working together and just spend time discussing or reading the bible how the police know about that.
The Tribunal, at page 17 of the transcript, makes it clear that the Tribunal member had serious doubts about the applicant's account. At the top of page 17 the member asks:
I don't understand why you've been handing out leaflets to non Christians to spread the gospel.
The applicant replied:
The material just talks about gospels and asks us to persuade those who do not believe God to believe God.
A little later on the Tribunal says:
From what you told me I have difficulty believing that you were working on a construction site and at work that you were reading the bible and the authorities found out about that and they found out because you were handing out leaflets to villages.
The applicant gave an answer and the Tribunal went on to say:
But you see any activities when reading the bible you were not at church. You cannot even tell the denomination or the group or the particular belief who are just a group of people reading the bible.
In my view, the transcript of the Tribunal hearing does not provide any evidence of the Tribunal truncating the applicant's evidence or cutting off his answers to questions. It does provide evidence of the Tribunal member expressing her concerns and her doubts to the applicant about the substance of his claim. Indeed, at the conclusion of the hearing - and it appears on page 17 of the transcript after the applicant had given an answer about churches - the member says:
I am aware of that. I do not have anything further to ask you.
Is there else you want to tell me?
The applicant said:
I just wish the member to give me the opportunity to live here legally otherwise I have a big trouble once I return.
The Tribunal then asked:
What would be a big trouble if you returned?
The applicant said:
The Chinese government will punish me for the things I have done.
The Tribunal said:
What things were they?
The applicant said:
The Chinese policeman regarded this is an il legal religion and as a powerful one, Senior Member.
In my view, the Tribunal hearing did not appear to have been subject to any jurisdictional error by means in breach of s.425. The transcript shows the Tribunal member asking the applicant open ended questions and asked the applicant if there was anything further that the applicant wants to tell the Tribunal. This is not the action of a Tribunal member attempting to cut off the applicant's evidence or restrict the applicant's right.
The transcript also shows the Tribunal member expressing her concerns about parts of the applicant's case. The applicant clearly had the opportunity to argue against those concerns during the hearing.
There is nothing in the Migration Act that requires the Tribunal to put those concerns to the applicant in writing and allow the applicant to have a further reply in an attempt to talk the Tribunal out of those concerns. In my view, no breach of s.425 of the Migration Act has been shown.
The applicant also claimed his application was not dealt with thoroughly or carefully. If that is a claim that there was a breach of good faith or an apprehended bias, there is no evidence of it.
An allegation of bad faith is a serious matter involving personal default on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved. (See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]; and see also SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358). There is nothing in the Tribunal decision, within the transcript of the hearing that demonstrates any evidence of bias or bad faith. There is nothing shown that the Tribunal did not consider a relevant particular of the applicant's claim or that the Tribunal would not provide information to the applicant that should have been provided for his comment under s.424A of the Migration Act. The applicant's claims have not been made out.
On account that the applicant is not legally represented I have inspected the Tribunal decision myself in order to ascertain whether any other jurisdictional error may appear, but I am unable to discern any signs of it. There is no jurisdictional error. The decision of the Tribunal is a privative clause decision as defined by s.424(2) of the Migration Act. Because it is privative clause decision, it is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any Court on any account. The application will be dismissed.
The applicant has been wholly unsuccessful in his claim. There is an application for costs on behalf of the first respondent Minister.
The amount sought is $3,900.00 which includes the costs of the adjourned proceedings on the last occasion. There is nothing that would take this matter away from the normal procedure that the unsuccessful applicant should pay the first respondent's costs.
I propose to make an order for costs in favour of the first respondent. The amount sought is $3,900.00. In the light of the litigation history of this matter I am satisfied the sum of $3,900.00 is an appropriate figure.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 17 October 2006
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