SZIVH v Minister for Immigration - [2007] FMCA 880

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIVH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 880

MIGRATION – RRT decision – Chinese applicant fearing persecution for participation in Shouters Church – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.424A(1), 425(1), 474, 476

Fox v Percy (2003) 214 CLR 118
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63

Applicant:

SZIVH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3605 of 2006

Judgment of:

Smith FM

Hearing date:

1 June 2007

Delivered at:

Sydney

Delivered on:

1 June 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms K Morgan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3605 of 2006

SZIVH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 5 December 2006, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 October 2006 and handed down on 31 October 2006. The Tribunal affirmed the decision of a delegate made on 7 December 2005 refusing to grant the applicant a protection visa.
A previous decision of the Tribunal made on 30 March 2006 was set aside by consent order in this Court on 20 July 2006. The contents of that decision are not before me, and there is no evidence as to the reasons for the remitter. In my opinion, the reconstituted Tribunal properly took into account the record of the proceedings before the previous Tribunal, and no jurisdictional error arises from how it did this.
Under s.476 the Court has the “same original jurisdiction in relation to migration decisions as the High Court has under para.75(v) of the Constitution”, but its powers are confined by s.474, so that I do not have power to remit the matter to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant's application for a protection visa was lodged on 27 October 2005 by a migration agent, Priscilla Yu, who carries on business in Sussex Street, Haymarket. In the application, the applicant claimed to be a person who had arrived on a Korean passport showing a different name on 13 September 2005. She presented a photocopy of what was claimed to be a Chinese identity card showing her true name. A statutory declaration narrated a history upon which the applicant claimed protection in Australia against return to the People's Republic of China.
The applicant said that she was a 20 year old woman who had graduated from a high school in June 2003, and then joined her parents who “ran a cake factory” in a city away from her village. She said that when she returned to her village in January 2004 she was invited to join a Bible study class “which was belonged to an underground church called as ‘the Local Church’ (a.k.a. “the shouters”)”. She spent two months attending the Bible study class “almost on every evening”, and then returned to her parents’ residence with a member of her Bible study class. She maintained contact “almost once a week” with the teacher of the class. She did not explain in her statement the Church activities in which she engaged during this period, but it appears that she gave evidence about this subsequently to the Tribunal.
In her statutory declaration she said that in January 2005, on another visit back to her village, she had “special meeting with some elders at the local church, discussing her plan to spread gospel and develop The Shouters group in (her parents' city)”. She was involved in discussing the plan, and then returned to the city with her friend. There, she was joined by Mr W, a “key member sent by the Local Church” who opened a “secret liaison for the Local Church”. She said that under the leadership of that person, she and her friend:
Actively distributed hundreds of Shouters propaganda materials to those students at (a medical college) and some pupils at (a village primary school). In the meantime both (her friend) and I worked as the main assistants of Mr W to establish and develop two secret Bible study groups at the Local Church in (the city).
This occurred between March and July 2005. One of the students at the medical college was then arrested, and the applicant learned of this “while I delivered some cake products to the students at (the college)”. She said:
I immediately informed Mr W. Mr W suggested me and (the friend) as well as other key members of The Shouters in (the city) area, to leave for other places as soon as possible. I accepted Mr W's suggestion and returned to my home town.
She then claims that she overheard policemen looking for her. The teacher of the Bible class arranged for her to hide, and she decided to go overseas. She said that she “fled to Bangkok in Thailand” and then came to Australia on the false Korean passport.
No corroboration of this history in China was presented to the Department of Immigration, nor subsequently to the Refugee Review Tribunal.
The delegate refused the application because:
I am unable to be satisfied that the applicant is a Chinese Shouter. The applicant has provided no supporting information to substantiate her claim that she is a Shouter. She has not given evidence that she is practising her religion in Australia.
The Tribunal, as originally constituted, invited the applicant to a hearing which she attended on 9 February 2006. Although the applicant was given the tapes at the end of the hearing she has not submitted a transcript, and nor has the Minister. It appears that the Tribunal drew attention to the absence of evidence confirming her claim that she had joined a Shouters group in Sydney, and invited her to submit proof of this.
Her agent then forwarded to the Tribunal a second statutory declaration by the applicant saying that she had participated in the Local Church in Sydney “in Auburn” and “in the south of Sydney”. The agent attached a reference provided by ‘The Local Church in Sydney’. This was on letterhead showing a post office box at Telopea but no other address, and was signed by two persons purporting to be an “Elder” and a “Responsible brother” of the Local church in Sydney. It said: “This is to confirm that (the applicant) has been meeting regularly with the church since 9 October 2005”.
The Tribunal sent a letter to the agent inviting the applicant to present evidence that the church “genuinely exists on anything other than paper”, and suggested the sort of documentary evidence which might show that. The agent's response was that “according to the advice” of the “responsible brother, the church is not willing to provide any documents regarding to its own operation to the Tribunal”. But she suggested that “the church is located at” a suite in the Labour Council building in Haymarket, and could be telephoned.
The Tribunal then served a notice on the applicant at the agent's address, suggesting that the Tribunal might infer from the response:
That the local church does not exist on anything other than paper, and that your claims relating to being a member of this church, both in China and Australia, are untrue.
The only response received was a telephone call to the Tribunal from somebody who claimed to be the ‘responsible brother’. He said that “the applicant come to him to confirm that the applicant attending church and also meetings every Friday”. No further corroboration of the claim to be a Shouter was ever forthcoming to the Tribunal before or after it was reconstituted.
The applicant attended a hearing held by the reconstituted Tribunal on 4 October 2006. She was still represented by her agent, and it is clear that the invitation to attend the hearing, and the response document which was returned, drew attention to her right to ask the Tribunal to take evidence from a witness to corroborate her claims. The applicant attended the hearing but had no witness. She was given the tapes of the hearing at the end of the hearing, but has not presented a transcript to the Court.
The Tribunal in its statement of reasons did not separately recount the course of the hearing, but referred, sometimes obliquely, to evidence which the applicant gave.
At the commencement of its findings and reasons, it addressed whether it could make a finding as to the applicant’s nationality and identity. As to her nationality, it said that it accepted that she is a national of the Peoples Republic of China as claimed. In relation to her identity, the Tribunal referred to her travel on a false South Korean passport. It said that it “understands that fraudulent documents are not uncommon in the PRC”. It said:
Further, given she has claimed to have utilised a false passport to enter Australia, the Tribunal believes she may have the capacity to have also secured a false PRC identity card. Accordingly, the Tribunal makes no finding as to whether the applicant's name is that which appears on the identity card. Be that as it may, the Tribunal it not satisfied that any finding as to the applicant's real name is in any way material to her claim to invoke refugee protection obligations in Australia.
The Tribunal then referred to the need to make findings concerning her credibility, and expressed a conclusion on this before explaining how it had arrived at it. Its conclusion was:
However, for the reasons set out herein, I do not accept the present applicant is a witness of truth. I am sufficiently satisfied the present applicant is not a witness of truth such that the Tribunal rejects all her material claims. Thus, to the extent I have not expressly rejected her material claims elsewhere, given I am sufficiently satisfied she is not a witness of truth, I find that none of the applicant's material claims to invoke refugee protection obligations in Australia are true.
The Tribunal discussed chronologically the elements in the applicant's history of involvement in the Shouters Church in China between 2003 and 2005. In relation to her first involvement in the Shouters and her first return to her parents' home it said:
The Tribunal understands the then 19 year old applicant was claiming to have been asked to establish a branch of the (home town) City Church in (the parents') city.
Read in context, I take that sentence to be referring to the Tribunal's understanding derived substantially from what it was told by her at the hearing. The Tribunal then explained a scepticism which it appears to have brought to its questioning of the applicant. It said:
Given the applicant's youth, her lack of education, and her presentation at the Tribunal hearing, I had doubts she had the capacity to even be asked to establish a branch or an unregistered (home town) City based church in (the parents') City: and even whether she was an adherent to such a church.
The Tribunal referred to discussing her claimed history with her at the hearing, and noted her claim that she “would hand religious information to random persons on the streets around her (parents') home in (their) City. She did this more than once a week between March 2004 and July 2005”. The Tribunal made a finding that it “did not accept it as plausible she would not have come to the adverse attention of the PRC authorities” for doing this. It then addressed her claimed conversion activities at a medical school and a primary school, and said that it “does not accept her claim to have (so indiscreetly) provided her real name to ‘some students’”.
The Tribunal referred to her involvement in the church in her parents' city, in which she had claimed to the Tribunal at the hearing that she preached on behalf of the Church and “claimed to be ‘one of the main persons’ in that church in (the parents') City”. The Tribunal apparently explored with her the reactions of her family to her becoming so involved in illegal religious activities, and it did not find her explanations “plausible”.
The Tribunal considered her evidence concerning the claimed July 2005 incident, which she claimed led to her departure from China. It found elements in that history which it did not accept as plausible. For example, the Tribunal said:
The Tribunal does not accept it is plausible the applicant, who allegedly feared arrest, would have resided with Church members in and around (her home town) City: given these persons were allegedly suspect to being identified by the members of the same church who had been arrested in (the parents') City. The Tribunal therefore rejects this claim as false. This is a further reason that has led the Tribunal to conclude the applicant is not a witness of truth.
The Tribunal then considered her claimed attendances at a Local Church in Sydney. It appears that the Tribunal raised with the applicant why she had not presented evidence from a witness. She said that she was not aware she could bring a witness, and that her migration agent had not advised about that. The Tribunal said:
The present Tribunal does not ordinarily expect applicant's to provide witness evidence to support their claims, but given in the present case this was one of the reasons the previous Tribunal had doubted her case, and given the present Tribunal believes both the applicant and her migration agent should have understood the corroboration of her claim to have continued to engage in religious practice in Australia may have supported her case, the present Tribunal is satisfied the failure by her to provide such evidence to it, is a further reason to reject the applicant's claims as false.
The Tribunal also understands that despite the previous Tribunal’s requesting some documentary confirmation of inter alia her continuing religious practice in Australia, none of the evidence that was submitted satisfied the previous Tribunal of the veracity of the applicant's claims. After considering same, and given the present Tribunal is not satisfied the applicant is a witness of truth, the present Tribunal rejects her purportedly corroborating evidence as false. The Tribunal therefore does not accept the applicant's alleged continuing church attendance supports her claim to be owed refugee protection in Australia.
There is also no ground of review taken by the applicant, concerning the Tribunal's reasoning in relation to the absence of corroborative evidence of her Australian activities. However, I have carefully considered the above paragraphs. I do not think they show the Tribunal giving impermissible weight to the opinions of the previous Tribunal. Rather, it was recording its own doubts which accorded with those of the previous Tribunal. In my opinion the points made by the Tribunal for rejecting the “purportedly corroborative evidence as false” were plainly open to it.
The Tribunal concluded its reasons with a passage which is not easily comprehended, and was probably unnecessary given its rejection of the applicant's credibility generally. As I understand these paragraphs under the heading ‘the strength of the applicant’s convictions’, the Tribunal considered whether she was a person with religious convictions for which she might be persecuted if she returned to China, but was not satisfied that she was such a person. Given the Tribunal's previous findings on credibility, I think that opinion was open to it, and I can detect no jurisdictional error in this part of its reasoning.
The applicant filed an application containing lengthy arguments and an amended application which repeats their substance. I shall not set it out in its entirety, but shall endeavour to address the points raised by it. These points were again raised by the applicant when she attended today's hearing.
The amended application has two grounds, the first being ‘error of law’ and the second being ‘procedural error’ which are explained in particulars and sub-particulars. The first particular is a claim that the Tribunal's decision “has included a reasonable apprehension of bias”. Criticisms are made about two parts of the Tribunal's reasoning. The first part is its reference to the applicant's capacity to have secured a false PRC identity card. The second is the Tribunal’s understanding that the applicant claimed to have been “asked to establish a branch” and to have been “one of the main persons” in the Church in her parents' city. The amended application argues that this overlooks the claim made in the original statutory declaration that Mr W, the “key member sent by the Local Church” was the “main leader”, and the application argues that “I was one of main assistants” only. From these two points it is argued that an apprehension of bias is established.
However, I do not accept this argument. The Tribunal's reference to the possibility that the applicant had a false identity card as well as a false passport was, as I have shown, not treated by the Tribunal as a material part of its reasoning. It was a comment which was properly made and, in my opinion, would not give rise to any apprehension of bias, whether considered alone or in the context of the whole reasoning. Nor, in my opinion, does the Tribunal's reasoning which found implausible the claimed leadership role of a young woman in a proscribed religious movement raise any apprehension of bias. It was the Tribunal's statutory duty to assess the applicant's claims, and to arrive at findings as to their credibility. The fact that it ultimately made adverse findings does not suggest that it had a closed mind before it arrived at its decision.
I also do not accept that the Tribunal’s reasoning which is attacked reveals a misapprehension of the applicant's claimed history. Significantly, the Tribunal appears to be addressing the claims made to it at the hearing, and there is no evidence before me showing that it wrongly understood what the applicant said to it. I am not persuaded that there was anything in the original statutory declaration which the Tribunal has not taken into account.
The second particular of jurisdictional error in the amended application, argues breaches by the Tribunal of its obligations under s.424A(1) of the Migration Act. It is argued that this is shown by the fact that “some of pieces of information have been misunderstood or misstated by the Tribunal” and that the applicant was not given “a chance to comment” on the information which was misunderstood or misstated. However, this argument misconceives the effect of s.424A(1), which does not require the Tribunal to invite written comments on its thought processes and assessments of evidence given to it at the hearing.
Other contentions in relation to s.424A(1) are not particularised in a meaningful way. Considering the whole of the Tribunal's reasoning, I have not been able to identify any information which was used by the Tribunal, and which gave rise to obligations under s.424A(1) on the reconstituted Tribunal. I therefore do not accept this ground.
The third particular in the amended application is that the Tribunal “failed to comply with his obligations under s.425(1) of the Act”. The Tribunal member is criticised in relation to his conduct of the hearing. It is said:
Frankly speaking, I had great reservation about whether the Presiding Member indeed created a fair chance for me to give evidences at the Tribunal’s hearing, because I strongly felt he was a person who had looked at my case with bias. He was very picky, and made me believe that his job was to 'pick up' some inconsistencies in my case. He never ever intended to create, genuinely and fairly, a chance for me to give my oral evidence in support of my claim.

This might appear to be an argument suggesting a closed mind, or perhaps an argument that the applicant was denied the opportunity required by s.425(1) to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. However, in the absence of a transcript, I cannot be at all satisfied that these criticisms have any substance. It was the task of the Tribunal to assess the veracity of the applicant's narrative in a difficult case. It was proper for it to do this by testing the applicant in relation to the details of her narrative, and to present to her problems which it perceived in that narrative.
The applicant also makes the criticism that “the presiding member has never ever informed me the issues, which as mentioned above, properly and clearly, during the hearing”. This criticism does not sit entirely comfortably with the criticism of the Tribunal being “very picky”. From my reading of the Tribunal's statement of reasons, it seems probable that the Tribunal member did expose to the applicant in the course of the hearing problems it saw in her claimed narrative. I am unable to arrive at findings that there was a failure of the sort found by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63 in the absence of a transcript. On the evidence currently before me, it must have been apparent to the applicant's agent and to the applicant from the course of the proceedings in the Tribunal, including before it was reconstituted, that the genuineness and truth of her claims to have suffered persecution as a Shouter in China was generally in issue.
The fourth particular of jurisdictional error in the amended application is that the Tribunal member “made its decision mostly based on his unwarranted assumption”. This has not been explained in any submissions by the applicant. I do not think that any irrationality or unreasonableness is suggested by the approach taken by the Tribunal to assessing the claims. In a situation such as the present, it was open to a Tribunal to arrive at a conclusion as to the veracity of the claims by considering “the apparent logic of events”, particularly where there was no “contemporary materials” nor “objectively established facts” to which the Tribunal could otherwise have reference (cf. Fox v Percy (2003) 214 CLR 118 at [31]).
I have considered all the arguments presented by the applicant in her amended application, and again to me today, and am not satisfied that the Tribunal's decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 18 June 2007