SZIWK v Minister for Immigration
[2006] FMCA 1552
•11 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1552 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China – applicant claims fear of persecution for reasons of his religious activities – 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 Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 64 ALD 289 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 Tin v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1109 |
| Applicant: | SZIWK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1477 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 $3,300.00 and I will allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1477 of 2006
| SZIWK |
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 in the Refugee Review Tribunal. The Tribunal made its decision on 30th March and handed it down on 20th April 2006. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 25th September 2005 on a passport with an Australian visa in the name of another person.
He applied for a protection visa on the basis that he had a well founded fear of persecution for reason of his religious beliefs. He claimed to be a follower of the Christian religion and to be a member of a church that was not a registered or authorised church in China. The applicant explained that members of underground Christian churches, as they are known, are subject to persecution.
The applicant's claim for a protection visa was refused so he applied to the Refugee Review Tribunal for a review of that decision.
His migration agent lodged his application for a review on
22nd December 2005. No additional documentation was provided at the time of lodging the application but the applicant later provided a teaching certificate from the People’s Republic of China translated into English, and his passport, and his driver's licence. That latter document was also translated into English as was his identity card.
The Tribunal wrote to the applicant on 9th January 2006 inviting him to attend a hearing to take place on Tuesday 14th February. The applicant attended the hearing and gave oral evidence. The Tribunal member asked him a number of questions about his history and about his religious practice and beliefs. The Tribunal handed down its decision on 20th April 2006. The Tribunal findings and reasons are set out on pages 84 through to 87 of the Court Book.
The Tribunal set out that in assessing the relevant and material facts the Tribunal assessed the applicant's credibility. The Tribunal's overall finding about the applicant's credibility is summarised on page 84 of the Court Book. The Tribunal said:
I did not find the applicant to be a truthful or credible witness on a number of relevant aspects of his claims. I formed the view that the applicant was unprepared when tested on the specific details of his claim and found it difficult to fabricate those details because he had no experience to draw upon to give that specific evidence.
The Tribunal set out on pages 85 and 86 of the Court Book the reasons why the Tribunal had formed an adverse view of the applicant's credibility. It is clear that the Tribunal's adverse view was formed from a consideration of the applicant's evidence to the Tribunal.
The Tribunal's comments summarised are as follows:
I do not accept the applicant's claims that he became a member of an underground Christian church in China in July 2003.
His explanation for his adoption of Christian beliefs lacked meaningful content. His knowledge of Christian beliefs and practices was superficial and when pressed he was not able to give descriptions of Christian gatherings he had attended in China. He could not explain central Christian beliefs and practices and had little knowledge of biblical stories.
The applicant claimed to have attended a church in Sydney following his arrival, however, he did not provide any evidence from the pastor or any other person associated with that church supporting his evidence that he was a parishioner of that church. His description of the church service at the Sydney church was limited. The applicant had little knowledge of the differences between the official and unofficial churches in China. I formed the view that the applicant had rehearsed a fabricated account of events to support his refugee claims but became confused when asked questions out of the chronological context of his story.
The Tribunal did not accept the applicant's claim that he had been detained by local Chinese authorities in February 2005 because he had distributed religious materials to children. The Tribunal found other aspects of the applicant's evidence to be implausible and the Tribunal did not accept that the applicant was being sought by police for reasons of his religious activities prior to his departure from China.
The Tribunal did not accept that the applicant left using a Hong Kong Chinese passport and an Australian visa in another person's name because those documents were obtained to avoid the adverse attention of Chinese authorities. Whilst the Tribunal accepted that the applicant had done so the Tribunal felt that there were many possible reasons for obtaining those travel documents.
The Tribunal did not accept that if the applicant returned to China he would seek to join an underground Christian church and considered that his attendance at church in Sydney had been to strengthen his claims that he was a Christian for the purpose of his application for a protection visa. The Tribunal was not satisfied that the applicant had a well founded fear of persecution for any convention related reason and it was not satisfied that the applicant was the person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol. The Tribunal found that the applicant did not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant has sought a review of that decision by means of an application, filed in this Court on 23rd May 2006. The applicant filed an amended application on 24th July. In that application he sets out five grounds for relief. Those grounds are (1) the Tribunal failed to comply with its obligation under s.425 of the Migration Act; (2) the Tribunal failed to comply with its obligations under sub-s.424A(1) of the Act; (3) the Tribunal applied the wrong test to determine his credibility; (4) the Tribunal ignored relevant material; (5) the applicant did not believe that his application had been fairly and carefully assessed.
In respect of the applicant's claim that the Tribunal failed to comply with its obligations under s.425 of the Act, whilst the applicant concedes that he attended a hearing and gave oral evidence with the assistance of an interpreter he set out two reasons as to why he said that the hearing was carried.
First, he said that he was seriously ill on that day and suffered from a high fever. As a result he was unable to think normally and became confused. Second, the applicant claimed that the interpreter at the hearing was unable to interpret religious terms owing to the interpreter's poor knowledge and understanding and on many occasions he had great difficulty in communicating with the interpreter.
The applicant told the Court that he had been nervous prior to the hearing and had not slept the night before. As a result he had a headache and a high fever. The applicant said that he was nervous at the hearing. The applicant told the Court that he did not ask the Tribunal for an adjournment of the hearing because of illness nor did he seek medical attention before or after the hearing. He did not tell the Tribunal member that he was feeling ill. He did not tell the Tribunal member that he was feeling nervous. He did not complain to the Tribunal about the alleged inadequacies of the interpretation by the interpreter.
The fact is that apart from the applicant's assertion there is no evidence that the Tribunal was aware of any difficulties relating to the applicant giving evidence at the Tribunal hearing. No transcript of the hearing has been provided and there is no other evidence to show that the hearing in any way miscarried.
The Full Court of the Federal Court has made it clear in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 that without evidence a claim that the hearing miscarried in some way will not succeed. In my view, there is no evidence that the Tribunal was in any way aware of any difficulties relating to the applicant's ability to give evidence.
As far as the applicant's claim of a breach of s.424A of the Migration Act is concerned, the applicant, in his amended application, provides these particulars:
(a) the Tribunal raised some issues in relation to my religious knowledge and practices both in China and in Australia.
And:
(b) the Tribunal raised the issue according to the independent country information in relation to differences between the official and unofficial churches in China, as well as my persecution suffered in the past owing to my religious beliefs and practices in my home country.
In my view, neither of those particulars can be described as information for the purposes of s.424A (1). The Tribunal is not required to give details of its thought processes or of its determinations. The Tribunal did not refer to any independent country information during the decision and it is clear that the reason for the Tribunal's decision to affirm the delegate's decision was based on the Tribunal's assessment of the applicant's evidence to the Tribunal.
The Tribunal's objective appraisal or thought processes do not form information for the purposes of s. 424A, and I am referred by the respondent's solicitor to Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 64 ALD 289 at 95; and Tin v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1109 at [54]. The Tribunal's decision was based on adverse credibility findings and the question of credibility is a factual finding that remains within the province of the administrative decision maker. (See Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 in the judgment of McHugh J at [67]).
The applicant gave information to the Tribunal for the purpose of his application and gave oral evidence. The Tribunal did not accept the applicant's evidence. The applicant's evidence t0 the Tribunal falls within the exception in s.424A (3) (b) of the Migration Act. There is no breach of s.424A of the Migration Act in the Tribunal's decision.
As to the applicant's third ground the applicant claimed that the Tribunal applied the wrong test to determine his credibility. As has been said in Durairajasingham (supra), credibility is a matter that is solely within the province of the administrative decision maker.
The applicant claimed that he had not been in Australia long enough to obtain a certificate from the Christian church that he has been attending in Sydney because it was the policy of the church to issue such a certificate only to those members who had attended the church for at least half a year. The Tribunal hearing came on too soon for the applicant to obtain such a certificate. To my mind that is no more than a challenge to a factual finding of the Tribunal. The Tribunal has set out throughout its decision the reasons why the Tribunal did not accept the applicant's evidence from a credibility point of view.
The fourth ground is a claim that the Tribunal ignored relevant material, and the applicant refers to two reports on Human Rights Practices from the United States Department of State. The applicant did not provide this material to the Tribunal but he told the Court that he had asked his migration agent to provide the Tribunal with further material.
The Tribunal may, under s.424 of the Migration Act seek additional information. Subsection 424(1) provides that in conducting the review the Tribunal may get any information that it considers relevant.
The situation is, however, that whilst the Tribunal has that right there is no obligation on the Tribunal to make its own independent inquiries in support of the applicant's claim. It is up to the applicant to provide the evidence to support his or her claim that he or she as a person to whom Australia owes protection obligations under the Refugees Convention. Accordingly, that ground must fail.
The applicant's fifth ground is that the Tribunal did not assess his application fairly and carefully. When asked to explain that ground the applicant reiterated his claim that he had a high fever and was nervous and that he had difficulties in communicating with the interpreter.
As there is no evidence that the applicant had made any of these difficulties clear to the Tribunal, there is no evidence that the Tribunal was aware of any of these difficulties.
The applicant also claims that the Tribunal did not assess the applicant's claim fairly. If that is an allegation of bias or lack of good faith, there is, to my mind, no evidence to support such a claim.
The Full Court of the Federal Court has made it quite clear in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43], that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved. (See also SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358). There is nothing in the Tribunal decision that demonstrates any evidence of bias or bad faith.
The applicant submitted the Tribunal should have made it clear to him on what matters the Tribunal had reservations so that the applicant would have a chance of arguing against those matters. There is no requirement on the part of the Tribunal to do so and that ground must, therefore, be dismissed.
In my view, the Tribunal's decision shows no jurisdictional error.
I have read through the Tribunal's decision independently in order to make my own assessment as to whether a jurisdictional error has been made out, mindful of the fact, as I am that the applicant is not legally represented. I am not able to discern any jurisdictional error.
As there is no jurisdictional error, in my view, the Tribunal decision is a privative clause decision as defined in s.474(2) of the Migration Act.
The applicant in his amended application has sought a declaration that the decision was invalid and contrary to law. He has sought an order in the nature of certiorari quashing or setting aside the Tribunal decision, and an order in the nature of mandamus remitting the application for review to the Refugee Review Tribunal to be determined in accordance with law.
As the decision is a privative clause decision, in my view, under s.474(1) (c) the decision is not subject to the orders in the nature of mandamus, declaration or certiorari which the applicant seeks.
The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. There is nothing in my view to indicate that I should not depart from the usual practice that a successful party should be entitled to an order for costs in their favour. The amount sought is $3,300.00. In my view, this appears to be an appropriate amount. The applicant has said that he does not have a job and does not have the income to afford that amount. That may well be the case, but it is not a reason for not making an order for costs. It is, however, a factor to be taken into account in allowing some time to pay. I will allow three months to pay.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 18 October 2006
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