SZIYG v Minister for Immigration

[2007] FMCA 1516

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1516

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth) ss.91R, 424A

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SAAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 726
SAAS of 2001 vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 340
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78

Applicant: SZIYG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1721 of 2006

Judgment of: Barnes FM

Hearing date: 22 August 2007

Delivered at: Sydney

Delivered on: 22 August 2007

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Ms C Hooper

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1721 of 2006

SZIYG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 May 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant is a citizen of the People's Republic of China.  He arrived in Australia in October 2005 and applied for a protection visa.  He claimed to fear persecution as a Christian belonging to an underground church in China and that he was detained and investigated by the police in 2003.  He claimed that in 2004 he was accused of participating in activities of “Shouters” and again detained and investigated by the police and that in 2005 the religious activities of his church were again investigated by the local police.  He claimed that “they” were in danger of being accused of attending activities of “Shouters” and that, worrying about his safety, he came to Australia.

3. The application was refused and the applicant sought review by the Tribunal.  He made no new claims in writing.  He attended a Tribunal hearing at which he and his son gave evidence. 

4. In its findings and reasons the Tribunal commenced by referring to independent evidence in relation to the situation of underground churches in the applicant’s province, which it had put to the applicant at the hearing.  However, it found that it was unnecessary to make a finding on the treatment of Christians in that province because, for reasons that it gave, it did not accept that the applicant was a Christian and a member of an underground church. 

5. The Tribunal addressed the applicant’s claims that he had been a Christian all his life, that he had continued his practice of Christianity after marriage, attending prayer groups over many years and that he had gone out to the country side to preach, that he came to the attention of the authorities and was detained on one occasion because of his preaching.  However the Tribunal found that the applicant displayed little knowledge of Christian beliefs.  When asked what he believed in as a Christian, his responses were said to be hesitant, vague and lacking in detail.  The Tribunal found that, despite numerous questions, the applicant was able to give little detail of the Christian activities he claimed to have been involved in in China, that he gave vague and general answers and that he was unable to provide details on certain issues or to explain certain aspects of his claims. 

6. The Tribunal accepted that the applicant had attended five or six services at a church in Sydney, but found that he did so for no reason other than to gain some information about the Christian religion to assist his application for protection. It found the applicant gave a very vague and general description of the bilingual services he had attended. The Tribunal found that he engaged in this conduct for the sole purpose of strengthening his claim to be a refugee and hence disregarded it under section 91R(3) of the Migration Act 1958 (Cth).

7. The Tribunal concluded that as it was not satisfied the applicant was a Christian when he lived in China it did not accept that he was ever arrested or came to the attention of the authorities in China.  His lack of knowledge regarding his alleged Christian beliefs and Christian activities led it to find he had never engaged in any religious activities that brought him to the attention of the authorities.  The Tribunal was not satisfied that the applicant would suffer any harm if he returned to China because of real or imputed religious beliefs.  It also found that as the applicant attended church services in Australia only for the purpose of enhancing his claims for protection, were he to return to China he would not be motivated to join an underground church or practice Christianity. 

8. The Tribunal also considered the evidence provided by the applicant’s son at the hearing (that his father had been accused of being a Shouter, that the son was a Christian and believed Jesus came to save people but that he had nothing else he wished to tell the Tribunal).  The Tribunal was not satisfied that the son’s evidence overcame the deficiencies or added anything to the applicant’s own evidence regarding his Christian beliefs and activities in China.  It noted that the applicant had made no claims under the Refugees Convention other than those based on religion and hence found that he did not have a well-founded fear of persecution for a Convention reason in China.

9. The applicant sought review by application filed in this Court on 16 June 2006. He relies on an amended application filed on 24 October 2006. The first ground in the amended application is that the Tribunal failed to carry out its statutory duty. The particulars clarify that this is a contention that the Tribunal failed to comply with section 424A of the Migration Act 1958 (Cth). It is contended that the Tribunal based its findings on information or lack of information contained in the applicant’s application for a visa. On that basis it is said that the Tribunal failed to meet its obligation to put particulars of such information to the applicant, explain why it was relevant and provide him with an opportunity to comment.

10. However, no breach of section 424A is established in the manner contended for by the applicant. It is apparent from the Tribunal reasons for decision that the Tribunal reached its decision based on shortcomings in the applicant’s oral evidence at the Tribunal hearing. In particular, it found that he displayed little knowledge of Christian beliefs and was unable to give details of Christian activities he claimed to have been involved in in China in response to questions at the Tribunal hearing. The Tribunal referred to the hesitancy, vagueness, lack of detail and generality of the applicant’s responses. The oral evidence given by the applicant in the Tribunal hearing is not information subject to the obligation in section 424A(1) as it is information that the applicant gave for the purposes of the review application within the section 424A(3)(b) exception.

11. Although it may be that there were some inconsistencies between information in the protection visa application and the oral evidence given at the hearing (for example, in relation to the number of times the applicant claimed he had been arrested), it is clear from the Tribunal’s reasons for decision that such inconsistencies did not form a reason, or part of the reason for its decision. Hence it is not necessary for the Court to consider further the extent to which such inconsistencies would give rise to a breach of section 424A, or would constitute information within section 424A(1) (but see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26).

12. More generally, as contended for the first respondent, the Tribunal findings in relation to credibility are a matter for the Tribunal (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). In this instance the findings of the Tribunal were open to it on the material before it for the reasons that it gave.

13. In oral submissions the applicant took issue with the Tribunal finding that he was not a Christian.  However insofar as he seeks merits review, merits review is not available in this Court.  No jurisdictional error is established on the basis contended for in ground 1 of the amended application.

14. The second ground is that the Tribunal relied upon irrelevant material.  It is contended that the country information relied upon by the Tribunal was out of date and/or based on hearsay.  This ground is not particularised.  There are no written submissions.  It was not addressed in oral submissions.  In any event, while the Tribunal did refer to independent country information put to the applicant at the hearing in relation to the treatment of Christians in his province in China, as set out above it found it unnecessary to make a finding on that issue because it did not accept that the applicant was a Christian and a member of an underground church in China.  No jurisdictional error is established on this basis. 

15. In written submissions the first respondent addressed the application of section 91R(3) of the Migration Act. As submitted, no jurisdictional error is apparent in the manner in which the Tribunal applied this provision and determined that the applicant’s conduct in Australia should be disregarded under section 91R(3), consistent with the approach taken in SAAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 726 at [52] to [57] per Mansfield J (upheld on appeal by the Full Court of the Federal Court in SAAS of 2001 vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 340).

16. Finally, in oral submissions the applicant raised the fact that while the Tribunal hearing time was 8:15 or 8:30am, the hearing did not start until 11am.  He submitted that therefore his mind was “messy”. 

17. It is the case that the material before the Court indicates that the applicant was invited to attend a hearing commencing at 8.30am. The Tribunal hearing record states that the hearing did not commence until 11:15am. It is noted on the hearing record that the interpreter arrived at 11am and that the hearing ended at 12:45 pm. It was, however, open to the Tribunal to adjourn the hearing, consistent with its obligations under the Migration Act (see section 427(1)(b) and SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78). The fact of the delay in the originally scheduled commencement time of the Tribunal hearing does not establish any jurisdictional error on the part of the Tribunal.

18. Insofar as the applicant seeks to take issue with the conduct of the Tribunal hearing, first there is nothing in his claim that his mind was “messy” that of itself establishes jurisdictional error or indicates in any way that the Tribunal failed to meet its obligations to invite him to appear before it, to give evidence and present arguments consistent with section 425.  Secondly, the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision.  There is no transcript of the Tribunal hearing before the Court.  There is nothing in the Tribunal reasons for decision to indicate that the applicant raised any issue about his state of mind or anything in the Tribunal account of what occurred in the hearing to indicate that the Tribunal fell into error in some way arising from the applicant’s claim that he now raises that his mind was “messy”.  I note that before making its finding as to credibility the Tribunal expressly referred to the need to recognise the difficulties faced by asylum seekers in providing supporting evidence and the need to give the benefit of the doubt to an applicant who was generally credible but unable to substantiate all of his or her claims. 

19. No jurisdictional error is established on the part of the Tribunal because of the fact that the Tribunal hearing did not start until after 11am or otherwise in relation to the conduct of the hearing. 

20. As no jurisdictional error has been established, the application must be dismissed.  The first respondent seeks costs in the sum of $3,000.  It is appropriate that the unsuccessful applicant meet the costs of the first respondent.  The amount sought is at the lower end of the scale of costs usually awarded in cases of this nature.  I consider it is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  6 September 2007