SZIZF v Minister for Immigration - [2007] FMCA 27

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIZF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 27

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal breached s.424A of Migration Act 1958.

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

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
WAGP v Minister for Immigration & Multicultural Affairs [2006] FCAFC 103

Applicant:

SZIZF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1813 of 2006

Judgment of:

Barnes FM

Hearing date:

17 January 2007

Delivered at:

Sydney

Delivered on:

17 January 2007

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms L Clegg

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1813 of 2006

SZIZF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 8 May 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China (the PRC) arrived in Australia on 16 May 2005. In October 2005 he applied for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing. After the Tribunal decision he sought review in this court by proceedings commenced on 27 June 2006.
In connection with his protection visa application the applicant made claims in an attached statement dated 18 September 2005, a copy of which was also provided by him to the Tribunal. The applicant claimed that he had been born into a poor farming family, had worked in a mine with his father, that both his father and a friend who was a Christian had been killed in mining accidents, that after these accidents he had been comforted by and visited members of the Christian church and had become attracted to Christianity. He claimed that he joined what he described as a “family church” in September 2000. In his application he described his religion as Catholic.
The applicant claimed that he became a dedicated Christian of the Catholic denomination and that in May 2003 he had been caught by the authorities being involved in the arrangement of printing and delivery of Bibles and Christian promotional material. He claimed that he had been sentenced to one year in a labour re-education camp, that after his release in June 2004 he had continued to be a practising Christian but that when the leader of the Beijing Family Church was arrested in September 2004 he started to plan his escape overseas. He claimed that he paid a lot of money to obtain a passport in another name on which he travelled to Australia.
The Tribunal reasons for decision set out in some detail the questions that it asked and the responses of the applicant during the Tribunal hearing, in particular in relation to his religious beliefs and knowledge and the events that he claimed had occurred in China and that it put to him that it found his evidence implausible, inconsistent and far-fetched.
In the findings and reasons part of its decision, the Tribunal accepted that the applicant entered Australia using a passport under another name, that his name was the name which he claimed was his and that he was a citizen of the PRC. However, the Tribunal stated that it did not find the applicant to be a witness of truth and could not be satisfied that his claims to be a Christian were credible. On that basis it was not satisfied that he had any claim to have a well-founded fear of persecution for a Convention reason.
The Tribunal stated that it was aware that the dangers involved in practice of some religions in some countries may limit the opportunity to gain a detailed knowledge of a religion in that country, and that it had considered whether the knowledge level of the applicant about religion was consistent with the claimed activities and opportunities available to him in the PRC, given his claims to have been actively involved with the underground Catholic Church in the PRC since 2000, arranging and attending services and meetings and recruiting new members, and his claims to have been “very diligent” about his faith and to have “worked hard for God”.
The Tribunal found that (as it had put to the applicant at the hearing) when tested against the questioning at the hearing his claims were not credible. It found that his knowledge about the Catholic Church was negligible, and gave particular examples of the applicant’s lack of knowledge. It also had regard to the fact that the applicant had not attended church in Australia. It noted that when it had asked the applicant if he attended church in Australia, he stated that he had come to Australia not long ago and did not speak English and that its response was that there were many churches in Australia which conducted Chinese language services. The Tribunal found that the applicant was unable to give a reasonable explanation about why he had not attended church in Australia since his arrival in May 2005. The Tribunal also noted that the applicant nominated not to swear on the Bible at the commencement of the Tribunal hearing and did not provide any documentary evidence to support his claim that he had been baptised in 2003.
In light of the applicant’s claims to be a committed Catholic Christian who had recruited new members the Tribunal found that it was “[not] (sic) reasonable to expect the applicant to have a reasonable knowledge of the Catholic Church and its beliefs”. It stated the fact that his knowledge about Catholicism was negligible led it to the finding that he was not a Christian and not a Catholic. The Tribunal found that the applicant had fabricated such claims to enhance his claim to be a refugee.
The Tribunal found further that, in light of what it described as its “grave and adverse findings about the applicant’s claims to be a Catholic or Christian” it could not be satisfied that he had faced any adverse treatment in the PRC arising from his claims. It found that he was not, as claimed, a Christian and was not involved in religious activities or in the activities of transporting Bibles. It was not satisfied that he had ever been detained by the authorities because of any religious activities. It found that he was of no adverse interest to the PRC authorities. The Tribunal concluded it was not satisfied that the applicant was a person to whom Australia had protection obligations.
The applicant relies in these proceedings on an amended application filed on 5 September 2006. He has not filed any written submissions but he raised further issues in oral submissions which I have considered. The amended application pleads a single ground of review which is that the Tribunal failed to carry out its statutory duty. The particulars (which appear also to be submissions) indicate that it is contended that there was a failure to comply with section 424A of the Migration Act 1958 (Cth). Reference was made to extracts from the decisions in SAAP v MIMIA [2005] HCA 24 and MIMIA v Al Shamry (2001) 110 FCR 27 in support of the proposition that the Tribunal was under an obligation to put to the applicant for comment information given by him to the first respondent as part of his application for a protection visa.
It is said, without specification of particular information, that the Tribunal based its findings on the information or lack of information contained in the protection visa application. No particular information was specified in the applicant’s oral submissions today. However counsel for the first respondent addressed in written and oral submissions the possible application of s.424A.
First, insofar as the applicant intends by this ground to refer to information contained in the statement of 18 September 2005 which was attached to his protection visa application, it is apparent from the Tribunal decision and not disputed by the applicant, that this statement was also submitted to the Tribunal together with a claim by the applicant as to his real name, a translation of what was said to be his resident identity card and a copy of his passport. Insofar as the Tribunal relied on information in any of those documents, that was information that was given to the Tribunal by the applicant for the purposes of the application for review and hence excluded from the requirements of s.424A(1) by the provisions of s.424A(3)(b).
Moreover, as contended for by the respondent, in essence the Tribunal based its reasoning on its observation of what occurred at the Tribunal hearing and, in particular, the applicant’s limited knowledge of Christianity in general and Catholicism in particular. Insofar as it rejected the credibility of the applicant, the basis for the Tribunal’s decision was not information provided to the first respondent, but rather its observations and thought processes in relation to the credibility of the applicant. It is well established that the Tribunal’s thought processes in that sense are not matters to which s.424A(1) of the Migration Act applies. (See SZEEU v MIMIA [2006] FCAFC 2 at [205] per Allsop J and cases cited therein). The Tribunal did not rely on any inconsistencies in information provided to the Department and to it.
There are, however, two respects in which it is necessary to consider further the Tribunal reasons for decision, both brought to the attention of the court by counsel for the respondent. The first of these is that the Tribunal recorded that in the course of the Tribunal hearing it asked the applicant why he waited from 16 May 2005 until 6 October 2005 before applying for a protection visa. It is apparent from this question and also from the introduction to the Tribunal reasons for decision that the applicant arrived in Australia on 16 May 2005.
The Tribunal’s account of the hearing refers to a discussion of the applicant’s explanation for the delay in applying for a protection visa. However in the findings and reasons part of the Tribunal decision there is no consideration of the delay in applying for a protection visa at all. Hence, while the information as to the date of arrival may have been obtained from the protection visa application and not given to the Tribunal by the applicant (it being information contained in the protection visa application and the copy of the boarding pass on which the applicant travelled provided to the Department), such information was not information that would be the reason or part of the reason for affirming the decision under review: see Allsop J in SZEEU v MIMIA at [216] (and cf the discussion at [253] of ‘date of application information’, in a context in which that Tribunal did have regard to an unsatisfactory explanation for the delay in seeking a protection visa). In this case the fact that the applicant arrived in Australia on 16 May 2005 was not a part of the reasoning of the Tribunal.
This part of the dialogue between the Tribunal and the applicant in the hearing did not form part of the reason of the Tribunal for rejecting the credibility of the applicant in relation to his claims and hence for affirming the decision under review.
As Allsop J stated in SZEEU at [216]:
“Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason).”
Secondly, it was pointed out for the respondent that in the findings and reasons part of the Tribunal decision the Tribunal noted that the applicant was unable to give a reasonable explanation about why he had not attended church in Australia. The relevant part of the Tribunal decision is as follows:
“The Tribunal asked the applicant if he attends Church in Australia. The applicant stated that since he came to Australia not long ago and does not speak English. The Tribunal observed that there are many Churches in Australia which conduct Chinese language services. The Tribunal notes that the applicant was unable to give a reasonable explanation about why he has not attended Church in Australia since his arrival in May 2005. The Tribunal also noted at hearing that although he claims to be a devout Catholic he nominated not to swear on the Bible at the commencement of his hearing.”
The information about not attending church is clearly information that was given to the Tribunal in the course of the Tribunal hearing. However, the Tribunal also referred to the month and year of arrival in Australia: May 2005. There is no transcript of the Tribunal hearing before the court. It appears that the information as to the month in which the applicant arrived in Australia was information given to the first respondent in connection with the protection visa application, but not also given to the Tribunal (see MIMIA v Al Shamry (2001) 110 FCR 27).
What is in issue is whether the information as to the month and year of the applicant’s arrival in Australia is information which would a part of the reason for affirming the decision under review. On balance, reading the Tribunal decision as a whole, it is clear that the concern of the Tribunal was with whether the applicant had attended church in Australia, that it had regard to his explanation that he came to Australia not long ago and did not speak English, but also to information that there are many churches in Australia which conduct Chinese-language services. The Tribunal’s reasoning was that the applicant was unable to give a reasonable explanation about why he had not attended church in Australia since his arrival in Australia. It was the absence of such an explanation for his failure to attend Church that the Tribunal took into account in its reasoning in relation to its credibility of the applicant’s claims to be a committed Christian. There is no suggestion that the Tribunal took issue with the applicant’s claim that he came to Australia “not long ago”. I note in that respect that part of the information that was clearly put to the Tribunal by the applicant was the application for review of December 2005 and the earlier statement of September 2005. The Tribunal hearing took place in May 2006. The decision was made in May 2006. In other words, the passage of time at least from the time of the September 2005 was clearly known to the Tribunal from information given to it. The Tribunal did not refer critically to the length of time the applicant had been in Australia, but rather to the existence of Chinese-language services and the absence of a reasonable explanation for non-attendance at church in Australia. (cf Allsop J at [215] and Weinberg at [158] in SZEEU). There is no suggestion of an inconsistency between the date of arrival and this claim.
In all the circumstances, despite the broad view taken in SZEEU about when information is a part of the reason for affirming the decision under review (see in particular Allsop J at [215]), in this instance I am not satisfied that the time of arrival (in the sense of the month and year) was a part of the reason for affirming the decision under review such as to fall within the obligations of s.424A(1) of the Act. What was relevant was the lack of reasonable explanation for the applicant’s failure to attend Church in Australia at all, not the precise time he arrived in Australia. The actual date of arrival did not play a part “in the disbelief of the [applicant] which was the reason for the decision of the Tribunal” (cf SZEEU per Allsop J at [227]) and see WAGP v MIMA [2006] FCAFC 103 at [43]).
In oral submissions the applicant raised, but did not elaborate on, a number of issues. He claimed generally that the Tribunal made mistakes in assessing his application. Insofar as this general suggestion seeks merits review, merits review is not available in this court. The Tribunal’s rejection of the applicant’s claims was based on its findings in relation to credibility. Credibility findings are a matter for the Tribunal par excellence; see MIMA, Re; Ex parte Durairajasingham (2000) 168 ALR 407. The Tribunal findings were open to it for the reasons that it gave on the material before it. Hence no jurisdictional error has been established in that respect. The applicant’s disagreement with the Tribunal’s conclusions does not establish a jurisdictional error.
The applicant also claimed that the Tribunal did not make a decision according to his application. Again, it appears that this takes issue with the Tribunal’s rejection of his claims and seeks impermissible merits review. Insofar as it is contended that the Tribunal failed to take into account any aspects of the applicant’s claim as contained in his protection visa application and the accompanying statement, on the contrary, it is apparent that the Tribunal considered the integers of his claims.
The Tribunal summarised the applicant’s claims and set out in some detail the manner in which such claims were considered in the course of the Tribunal hearing. However, having found that he had fabricated his claims to be Christian and a Catholic, it found that it could not be satisfied that he had faced the adverse treatment which he claimed had occurred in the People's Republic of China. No jurisdictional error is established in the Tribunal proceeding in the manner in which it did.
I do note that in the Tribunal findings and reasons there is what appears to be a typographical error (when the Tribunal reasons are read as a whole). The Tribunal first found that the applicant’s knowledge about the Catholic Church was negligible. It noted that the applicant’s claims in evidence were to the effect that he was a committed Catholic Christian who recruited new members. The Tribunal then stated that in light of these claims it was “not” (sic) reasonable to expect the applicant to have a reasonable knowledge of the Catholic Church and its beliefs. However, importantly, the Tribunal went on to state:
“The fact that the applicant’s knowledge about Catholicism is negligible leads the Tribunal to finding that he is not a Christian and not a Catholic and a finding that he has fabricated these claims.”
Insofar as there is a mistake by the inclusion of the word “not” in this part of the Tribunal reasons for decision, it is not such as to establish a jurisdictional error on any of the bases contended for by the applicant: (and see MIEA v Wu Shan Liang (1996) 185 CLR 259).
The applicant also contended that the Tribunal failed to comply with s.91R of the Migration Act. When asked how this failure arose he went on to raise a different issue; that the Tribunal had allegedly failed to take into account his documents. Dealing first with s.91R of the Migration Act, this is not a case in which the issues under s.91R arose, as the Tribunal rejected the underlying claims made by the applicant on the basis of a rejection of his credibility. Hence it was not necessary for it to consider whether persecution was for an essential and significant reason within sub-s.(1) or serious harm within

sub-s.(2).

Nor did sub-s.91R(3) (which requires that conduct engaged in by the person in Australia be disregarded unless the person has satisfied the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee) arise. In this instance there was no claim by the applicant in relation to conduct engaged in in Australia. The Tribunal took into account the fact that the applicant had not attended church in Australia, and there was no failure to comply with s.91R(3) in so doing. The Tribunal’s consideration of his failure to attend church was not a matter that gave rise to the application of s.91R(3).
Finally, the applicant claimed that the Tribunal failed to take into account his documents. He explained that he meant the documents that he had provided to the Tribunal and also the fact of the persecution he suffered. He confirmed that the documents he provided to the Tribunal were included in the relevant documents before the court. As indicated, those documents were the application for review, the statement of 18 September 2005, a claim about his real name, a copy of a resident identity card and a copy of a passport in his real name.
As to the applicant’s name, the Tribunal accepted that his name was the name that he claimed, consistent with the written claim, the ID card and the copy passport provided. It clearly took those documents into account. As indicated, the statement of 18 September 2005 set out the claims the applicant made about his claims to be a Christian and the events which he claimed had occurred in China. The Tribunal summarised those claims but, for the reasons that it gave, rejected the applicant’s credibility and on that basis could not be satisfied that the events complained of had in fact occurred as set out in that statement. In these circumstances there was no failure by the Tribunal to take into account the applicant’s documents or the claims he made in relation to past persecution.
As no jurisdictional error has been established, the application must be dismissed. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $3,500. I consider that amount, which is at the lower end of the costs usually sought in such matters, is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 5 February 2007