SZIYS v Minister for Immigration
[2007] FMCA 2031
•7 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIYS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2031 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal properly considered the applicant’s claim of conduct in Australia corroborative of his claims – whether the findings of the Refugee Review Tribunal were open to it on the evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91R(3)(b); 91S; 424A(1); 474; pt.8 div.2 |
| Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZIYS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1925 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 26 November 2007 |
| Date of last submission: | 26 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms S. Kantaria, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1925 of 2007
| SZIYS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant claims to be entitled to a protection visa by reason of a fear of persecution from authorities in the People’s Republic of China (“the PRC”) because of his membership in the PRC of the illegal Christian Shouters church.
On 1 November 2004, the Applicant arrived in Australia having departed illegally from Guanzhou Airport on a passport issued in a false name.
On 19 October 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
The Applicant’s protection visa application was supported by a statutory declaration in which the Applicant claimed that in January 2004 Public Security Bureau officers entered the church where he was worshipping and arrested him. He claimed he was taken to the Jiangjing town police station and interrogated, during which he denied being a Christian. The Applicant stated that this denial resulted in him being called a liar and beaten. The Applicant stated that he was detained for about 1 week and forced to sign a statement prior to his release that he would no longer practice Christianity. The Applicant stated that following his release he returned to his home village for about a month during which time he “became frustrated that he was unable to fully practice his religion, so he decided to leave the PRC. He stated he was introduced to a smuggler who organised his travel to Australia.
On 7 December 2005, a delegate of the Department refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugee’s Protocol.
On 3 January 2006, the Applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal. The Applicant provided no further material in support of his review application. On 11 May 2006, the Refugee Review Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 20 October 2006, by consent, Federal Magistrate Lloyd-Jones remitted review of the Applicant’s protection visa application to the Refugee Review Tribunal for determination according to law.
On 21 May 2007, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision under review.
On 20 June 2007, the Applicant filed an application in this Court for judicial review of the Tribunal’s decision pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 21 November 2006, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Applicant was invited to come to a hearing on 21 December 2006 to give oral evidence and present arguments in support of his application. The letter invited the Applicant to send any new documents or written arguments he wished the Tribunal to consider and to nominate any witnesses from whom he wished the Tribunal to obtain oral evidence.
On 5 January 2007, the Applicant’s migration agent wrote to the Tribunal identifying two witnesses from whom the Applicant wished the Tribunal to obtain evidence. The migration agent’s letter attached a letter dated 2 December 2006 from Rev. Huynh confirming that the Applicant has been attending his church at Campsie each Sunday and that the Applicant “is sincere in worship God and to listen to God’s teaching. He has been helping the preparation of worship procedure”.
On 15 March 2007, the Tribunal wrote to the Applicant’s migration agent informing that agent that the Tribunal has information that may be part of the reason for affirming the decision under review. The letter identified the information as a forensic document examination report in respect of the Applicant’s PRC identity card which disclosed that the identity card is counterfeit. The Tribunal’s letter informed the Applicant he had told the Tribunal his identity card was his own card. The Tribunal’s letter advised the Applicant the information was relevant because it may lead the Tribunal to concluded that he is not a witness of truth and that the Tribunal is not satisfied as to his identity. The letter also informed the Applicant that the information was relevant because it may lead the Tribunal to conclude that documents produced by the Applicant had been created in order to obtain the visa sought.
The Tribunal’s letter also identified to the Applicant information of inconsistent statements made by the Applicant to the Department and to the earlier constituted Refugee Review Tribunal and this Tribunal. In particular, the Tribunal informed the Applicant that he had told the Tribunal that his friend, “Jenny” did not live in his village, however, Jenny told the Tribunal that she did live in the same village as the Applicant. The Tribunal also identified other inconsistencies between the Applicant’s evidence and Jenny’s evidence. The Tribunal’s letter invited the Applicant to comment on the information by 29 March 2007.
On 28 March 2007, the Applicant’s migration agent responded to the Tribunal’s s.424A(1) letter. In particular, the migration agent informed the Tribunal that the Applicant sought to explain the inconsistency between his evidence and Jenny’s evidence as to where each was from by explaining that the two villages were side by side and separated by a common shopping street and Jenny had referred to them as one village.
The Tribunal identified the Applicant’s claims before the delegate, including the delegate’s concerns about the veracity of the Applicant’s identity card. The Tribunal noted that it had listened to the hearing tapes of the earlier constituted Refugee Review Tribunal. The Tribunal gave the applicant “the benefit of the doubt for the purposes of Convention” in relation to his claim to be a national of the PRC. The Tribunal noted that the Applicant had no valid passport and produced only the counterfeit identification as confirmation of his identity.
The Tribunal identified submissions received by it from the Applicant’s migration agent and documents provided in support of the Applicant’s review application. The Tribunal noted the oral evidence given to the differently constituted Refugee Review Tribunal on 2 March 2006, at which the Applicant’s migration agent was also present. The Tribunal then noted the expansion by the Applicant of his claims and noted exchanges it had with the Applicant about his understanding of Christianity and the Shouters.
The Tribunal noted the Applicant’s request to obtain evidence from the two witnesses, in particular, Jenny. The Tribunal noted that Jenny appeared in person and gave evidence in support of the Applicant. The Tribunal noted the evidence provided by Jenny and noted that it put to the Applicant inconsistencies between Jenny’s evidence and the Applicant’s evidence. The Tribunal noted the Applicant’s responses.
The Tribunal quoted in terms its letter dated 15 March 2007, sent pursuant to s.424A(1) of the Act and noted the terms of the Applicant’s written response.
The Tribunal then identified with specificity independent information to which it had regard in relation to the growth of the Shouters in the PRC and their treatment by the authorities. The Tribunal quoted large extracts from the independent information.
The Tribunal found the Applicant not to be a witness of truth. The Tribunal noted the Applicant’s explanation that he had “poor memory, partly attributable to a lack of education and partly to his life experiences.” In considering the Applicant’s claims, the Tribunal noted that it made its decision in the light of the Applicant’s lack of education.
The Tribunal rejected the Applicant’s claims of having been a member of the Shouters church in the PRC and his claims of having been persecuted for that reason. The Tribunal placed no weight on documents provided by the Applicant in support of his claims because the Tribunal was satisfied that the Applicant is not a witness of truth and comprehensively rejected his claims. In particular, the Tribunal rejected the later claim made by the Applicant to fear harm for a breach of the one child policy in the PRC and found that such claim was made to strengthen his claims for a protection visa.
The Tribunal also considered whether the Applicant may face harm in the PRC by reason of having applied for a protection visa in Australia. The Tribunal found there was no information before it to suggest that the Applicant’s lodgement of a protection visa application would be known to the Chinese authorities and did not accept that the mere lodging of a protection visa would impute anti-government political opinions to the Applicant.
The Tribunal considered the Applicant’s claims of having attended a Christian church in Australia and accepted Rev. Huynh’s evidence to that effect. However, the Tribunal found that the Applicant’s conduct in Australia was engaged in for the purpose of strengthening his claim as a refugee. For that reason the Tribunal noted such conduct must be disregarded pursuant to s.91R(3) of the Act.
The Tribunal was not satisfied that the Applicant had a real chance of persecution now or in the reasonably foreseeable future if he were to return to the PRC for a Convention related reason.
Accordingly, the tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was represented before this Court by Mr Zipser, of counsel, at the hearing before this Court.
Mr Zipser identified two grounds of review upon which the Applicant relied as follows:
1.The Tribunal found that the Applicant was not a member of the Shouter sect. The Tribunal, in making this finding, failed to take into account or have regard to the Applicant’s practice of Christianity in Australia following his arrival in Australia. In the circumstances, the Tribunal fell into jurisdictional error.
2.The Tribunal found that “Jenny and the applicant have created their evidence in order to obtain the visa sought”. The Tribunal fell into jurisdictional error in making this finding.
Ground 1
As I understand Mr Zipser’s oral submission, he contended that the Tribunal engaged in “impermissible circularity” by failing to have regard to, or place weight upon, the Applicant’s evidence of his attendance at a Christian church in Australia as supporting his claims of having practiced Christianity in the PRC. The passage from the Tribunal decision relied upon by Mr Zipser in support of his contention is as follows:
“As I am satisfied the applicant was not a Christian in China or a Shouter and as I am satisfied that he was not detained or harmed in China for any reason whatsoever and as I am satisfied the applicant is not a witness of truth, I satisfied for the purposes of subsection 91R(3) of the Act that any conduct the applicant has engaged in since his arrival in Australia in Christian or Shouters activities has been engaged in for the purpose of strengthening his claim to be a refugee. I disregard such conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth).”
Whilst there may be an inelegant use of language by the Tribunal, a fair reading of the Tribunal’s decision as a whole makes it clear that the Tribunal rejected comprehensively the Applicant’s claims in support of his protection visa application.
The Tribunal quoted s.91R(3) in its entirety and noted that “in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purposes of strengthening his or her claim to be a refugee.” That summation by the Tribunal is an accurate summation of the law.
The Tribunal accepted that the Applicant had in fact engaged in conduct in Australia. However, the Tribunal was not satisfied that the Applicant engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. The reason for the lack of satisfaction by the Tribunal was the Tribunal’s total rejection of the Applicant’s claims to be a Christian or a Shouter in the PRC or to have been detained or harmed in the PRC for any reason whatsoever. Those findings were open to the Tribunal on the evidence and material before it.
Having found that the Applicant had engaged in conduct in Australia, it was necessary for the Tribunal to consider and evaluate the reason why the Applicant engaged in that conduct. Section 91R(3)(b) requires the Tribunal to decide whether or not it is satisfied that the conduct in which the Applicant was engaged in was for purposes other than strengthening his claim to be a refugee. The Tribunal embarked on that exercise and, having found the Applicant to be an untruthful witness, was not so satisfied. That finding was open to the Tribunal on the evidence and material before it and for which it gave reasons.
There is no circularity in the Tribunal’s reasoning for disregarding the Applicant’s conduct engaged in by him in Australia.
Accordingly ground 1 is not made out.
Ground 2
The second ground contended for by Mr Zipser relates to the finding by the Tribunal that the Applicant’s evidence of where he and Jenny lived in the PRC was inconsistent with the evidence of Jenny. In support of his contention, Mr Zipser referred to the Claims and Evidence section of the Tribunal’s decision where it was summarising the Applicant’s evidence. Part of the Tribunal’s summary of the Applicant’s evidence was that the Applicant said Jenny “was from the neighbouring village”. Mr Zipser submitted Jenny gave similar evidence.
However, in context, the Tribunal’s summary referred to all the evidence given by the Applicant on that issue. Whilst the Applicant did indeed say that Jenny was from the neighbouring village, the Applicant also gave evidence that Jenny was from a different village to the village said she came from and later in his evidence said that she came from the same village.
In the circumstances, the Tribunal’s finding that the Applicant’s evidence was inconsistent with that of Jenny was open to it on the evidence and material before it. Moreover, the Tribunal put its concerns about the inconsistent nature of the evidence to the Applicant in the Tribunal’s s.424A(1) letter. The Applicant gave his response and the Tribunal had regard to it.
Having found that the evidence between the Applicant and Jenny was inconsistent, it was open to the Tribunal to find that Jenny and the Applicant had created their evidence in order to obtain the Applicant’s protection visa application. The Tribunal had regard to the explanations offered by Jenny and the Applicant and found that they were “a late invention made to overcome the inconsistent evidence.” In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons.
The Tribunal’s adverse credibility findings were also open to it on the evidence and material before it and for which it provided reasons. The Tribunal’s findings as to the Applicant’s credibility are a matter for the Tribunal “par excellence” (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407).
Accordingly, ground 2 is not made out.
Otherwise, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 20 June 2007 is dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 6 December 2007
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