SZJAA v Minister for Immigration

[2007] FMCA 164

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 164

MIGRATION – RRT decision – Chinese applicant claiming persecution as “shouter” – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.91R(3), 424A(1), 424A(3)(b), 425, 476

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant: SZJAA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1854 of 2006

Judgment of: Smith FM

Hearing date: 31 January 2007

Delivered at: Sydney

Delivered on: 31 January 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr M Izzo

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,650. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1854 of 2006

SZJAA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 3 July 2006, which has been set down for a final hearing on whether the applicant is entitled to a remedy 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 26 May 2006 and handed down on 8 June 2006.  The Tribunal affirmed a decision of a delegate made on 3 October 2002 refusing to grant a protection visa to the applicant.  

2. The delay between the delegate’s decision and the Tribunal’s decision is accounted for by a previous decision of the Tribunal given on 14 November 2003, which was set aside by consent orders of the Federal Court on 3 April 2006.  The previous decision, the reasons for it, and the procedures followed by the earlier Tribunal are not shown in the material before me, and it is not possible to identify the reasons for the remitter.  However, the reconstituted Tribunal considered the matter afresh, and, as I shall indicate below, decided the case entirely upon the documentary and oral evidence presented to it alone.  

3. The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but the Court’s powers are limited so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s 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 he is entitled to a protection visa. 

4. The applicant arrived in Australia in August 2002, and an application for a protection visa was lodged on 26 August 2002.  The applicant was assisted at that stage by an agent, Wayne Yutang Han, who also assisted him to bring his application for review by the Tribunal. 

5. The protection visa application was supported by a signed statement in which the applicant claimed that he had “experienced inhuman treatment by the Chinese police for my religious belief”.  He claimed that “my parents have been devoted Christians.  I was baptised since birth”.  He claimed that his parents had been persecuted as was “our Christian Church”, the denomination of which the statement did not identify.  The applicant claimed:  

   I have continued to practice my Christian faith.  I have held religious gatherings in secret.  In our area, I organised as many as 12 families of local Christian to worship the Lord together.  The police had entered my home four times with no warrant, the taken away some bibles and other religious books.  One day, the police came to my home and warned me that I would be put into jail if I continue to organise Christian gathering.  As a result, we had to appoint a person on watch every time we gathered.  If anyone came to harass, we had to split like an emergency.  We had experienced the running away during preaching or prayers more than ten times.  No matter what, we would never give up our faith under this kind of tyrant oppression. 

   In the morning of 28^th May 2002, five policemen suddenly came to gathering.  I was lucky enough to run away, but 2 Christian brothers were arrested and detained for two days.  The policemen also took most of our religious books and brochures. 

   I have to choose to leave the country.  Therefore, I came to Australia … 

6. No further details nor support for these claims was provided to the Department. 

7. The application for review was originally supported by a claim that the delegate had not properly understood a claim that the applicant feared persecution as a Falun Gong practitioner, but his agent many months later corrected that mistake, and on 24 July 2003 sent to the Tribunal an unsigned second statement by the applicant.  In this, the applicant claimed to have been baptised at the age of 10 and claimed to have belonged to a group named “Screaming Group”.  The statement referred to one incident:  

   In our Church life, we often worship God together.  Our school has formed the habit of shouting out God.  At one gathering someone heard our voice from outside reported to the Police and we were all taken photos and interrogated.  A few brothers were put behind bars.  One of our brothers W was put in prison for one month and two other brothers in prison for 2 days.  After this incident, we were all put in black list.  As all gatherings include brothers taking responsibilities, I am also put in black list.  A lot of brothers and sisters persuade me to leave home as the police was intending to arrest me.  At first, I stayed at a relative’s home.  Then some friends helped me apply for a visa to go abroad.  All this is at the guidance of God.  My visa application was granted on 8 August, and on 10 August, I came to Australia.  All this is arranged through God’s will. 

8. Following the remitter of the matter by the Federal Court, the applicant appointed a new agent, Pricilla Yu, who forwarded to the Tribunal a statutory declaration by the applicant.  This gave a more detailed account of claims to have been subject to persecution as a member of “The Shouters”.  The applicant claimed that “from 1997, I was asked by the Shouters to take responsible for organising religious propaganda materials which were not only supplied to the youth group to which I had belonged but other youth groups as well”.  The applicant claimed that he had established a new youth group from 2001 and that he had been warned by police, and that in 2002 he had visited Singapore and had secretly brought “some religious propaganda materials” back to China.  The statement described an incident:  

   11.Around 28 May 2002, while I was invited to participate in a gathering (not in my own youth group) in which there were about 10 participants, someone heard our voices from outside (while we prayed, we normally shout loudly) and reported to the police; and 5 policemen then came to the gathering place.  All of us were taken photos and questioned by the police.  One of Christians, Mr W, who was in charged of the gathering group, was detained at the detention centre for one month; and 2 other Christians were detained for 2 days.  All of participants, including me, on that day, were put on the “black list”. 

   12.After that, the police often came to my home for investigating my “illegal” religious activities, because I was on the blacklist owing the matter mentioned above. 

   13.Around middle of June 2002, I was warned by a friend, who was also a member of the Shouters, that the police was planned to arrest me, because I was suspected to be one of the Shouters’ leaders who were in charge of a particular area.  At that time, many religious brothers or sisters persuaded me to leave home; and I then had to stay at a relative’s place.  In the meantime, some of religious brothers or sisters tried their best to arrange my trip to the overseas; and I, therefore, was able to get a visa on 8 August 2002; and left the country on 10 August 2002. 

9. The applicant claimed that after he left China the police had “come to my home many times; and my families, including my wife and my aged mother, have been subjected to questions by the police many times”.  He claimed that one of his assistants had been arrested and confessed, and “put everything on my shoulder, he has still been put into the prison since 24 August 2002”. 

10. The applicant also presented a statutory declaration by an Australian witness, who said that he had known the applicant and his family before the witness came to Australia in 1997.  He claimed that in that year he had been asked by the applicant to bring “religious propaganda materials including Bibles from the overseas” on a visit back to China, and he claimed: “I have also been confirmed by my mother that the police are looking for him everywhere”.  

11. That witness attended before the Tribunal, and gave evidence in which he said he was not a Christian himself and did not know what denomination the applicant belonged to, although the witness said that he believed the applicant was a Shouter.  The witness’ answers to questions were not entirely consistent with his statutory declaration.  

12. The applicant also presented two documents, possibly in Chinese, but the Court Book contains only translations.  One is a certificate purporting to be by the “Chief [of the applicant’s city] Local Church” certifying that the applicant “took part in the gatherings organized by the local church and he was definitely a local church believer”.  The second document was a statement by a person residing in Victoria who said that he “used to be the Chief of the local church” in the applicant’s city.  That statement said: “I make this statement to prove that Brother [the applicant] is a member of the local church in [the applicant’s city]”. 

13. No other material to corroborate the applicant’s claims was presented, and in particular no material was presented to corroborate that the applicant was participating in any local congregation of Shouters in Australia or in any other church activities. 

14. In its statement of reasons, the Tribunal gave a detailed account of a hearing attended by the applicant on 22 May 2006.  The Tribunal questioned the applicant about the contents of his May 2006 statutory declaration, and gave him an opportunity to explain his refugee claims. 

15. In relation to the 28 May 2002 incident, the Tribunal recorded the applicant giving the following evidence:  

    The Tribunal asked the applicant to explain why he does not wish to return to China.  The applicant said on 28 May 2002 they were gathering at his home and the police came without a warrant and searched his home.  The Tribunal asked him if he was questioned by the police on 28 May 2002 and the applicant said he was not questioned.  He said they searched the house and left subsequently.  The Tribunal asked the applicant to explain why he believes he is of any interest to the Chinese authorities.  The applicant gave evidence that he was in charge of the local congregation of the youth group.  He said he relayed information about every congregation.  The Tribunal asked him to explain what he meant.  The applicant said the Chinese government is interested in him because he was in charge of publicity.  The applicant said on 28 May 2002 the police came to the gathering and did not arrest anyone.  He said there were about 30 brothers and sisters. 

16. The Tribunal described its questioning, in which it clearly drew to the applicant’s attention the inconsistency of this account with the account in his statutory declaration.  The explanation given by the applicant was:  

    The applicant stated that on 28 May 2002 there were two gatherings and there were two incidents.  The Tribunal put to the applicant that this is not what he has stated in the Statutory Declaration that he has provided to the Tribunal on 17 May 2006.  The applicant now said that perhaps the Migration Agent did not include those details.  The Tribunal pointed out to the applicant that the Statutory Declaration is comprehensive and detailed and it is surprising that the agent would not have included such important details. 

17. The Tribunal said that it also put to the applicant other concerns it had about his evidence, including his making some claims to the Tribunal which had not previously been included in the 2006 statutory declaration. 

18. At the end of the Tribunal’s description of the hearing, it referred to discussion about the documents presented by the applicant:  

    The Tribunal discussed with the applicant the two documents which he had provided to the Tribunal prior to the commencement of the hearing (Folios 30‑33).  The Tribunal asked the applicant about those documents and put to the applicant that upon consideration of the evidence as a whole, the Tribunal may not be satisfied that the documents contain truthful and/or accurate information.  The Tribunal put to the applicant that it would not be difficult to get people to write such documents.  The applicant said that the Certificate is written by Brother L, who is a Church leader of Local Church in China. 

19. The Tribunal then described the evidence of the witness and the conclusion of the hearing.  The Tribunal said that it “put to the applicant that the Tribunal was concerned about the evidence provided by the witness”, and that it told the applicant that it “may decide not to give the witness’s evidence much weight”.  The applicant was given an opportunity to respond to that, and also to explain his Church activities in Australia. 

20. It is not possible for me to make definitive findings as to the accuracy of the Tribunal’s description of the hearing in the absence of a transcript.  The applicant was sent a copy of the tapes of the Tribunal’s hearing on 22 May 2006, and in the course of the proceedings in this Court was given an opportunity to present a transcript in support of his application, but he has not taken that opportunity.  

21. Under the heading “Findings and Reasons”, the Tribunal stated a clear finding in relation to the applicant’s credibility and the credibility of his refugee claims: 

    Upon consideration of the evidence as a whole and having explored and tested the applicant’s claims in the course of the hearing, the Tribunal got a clear impression that the applicant has fabricated his claims in support of the application for a protection visa.  The applicant, through his advisor, has provided a Statutory Declaration sworn on 12 May 2006.  In the course of the hearing, the applicant confirmed his signature appearing on that document and that he did not wish to amend [any] part(s).  In the course of the hearing, the applicant gave evidence some of which is inconsistent with the written claims made by the applicant in the Statutory Declaration of 12 May 2006 which he provided to the Tribunal.  In particular, there were the following problems with the applicant’s evidence: … 

22. The Tribunal then detailed a series of criticisms of the applicant’s evidence given at the hearing, including the manner in which it was given and inconsistencies, including the significant inconsistency I have identified above.  

23. After that discussion, it said:  

    The Tribunal acknowledges that some of the evidentiary problems noted above could be perceived as being minor, however, when they are considered cumulatively, the Tribunal is satisfied that [they] are legitimate matters to be taken into account in reaching an adverse credibility finding. 

    In support of his claims, the applicant provided documents to the Tribunal prior to the commencement of the hearing (Folios 30‑33).  The documents refer, inter alia, to the applicant’s membership of the Local Church in China.  The Tribunal has considered those documents, but upon consideration of the evidence as a whole, the Tribunal is not satisfied that the documents contain truthful and/or accurate information.  The applicant also provided the Tribunal with a Statutory Declaration of the witness who gave evidence in the course of the hearing.  The Tribunal has considered the oral and written testimony of the witness.  In the opinion of the Tribunal, the witness was trying to help a friend, the applicant, rather than assist the Tribunal with its inquiries. In consideration of the evidence as a whole, the Tribunal is not satisfied of the truth and accuracy of the oral and written testimony of the witness. 

24. The Tribunal then made a series of detailed findings rejecting each element in the applicant’s claims, and summarising its conclusion: 

    In essence and for the above stated reasons, the Tribunal is not satisfied that the applicant has ever been a member of the Shouters Sect, or that he was involved in any of the claimed religious activities, or that he had suffered any of the claimed harm, or that there is a real chance of any of the claimed harm occurring in the reasonably foreseeable future.  

25. The Tribunal indicated that it had serious doubts about the applicant’s uncorroborated claims to have participated in weekly worship of the Shouters since arrival in Australia, but it said:  

    … in consideration of the evidence as a whole and given the credibility concerns, the Tribunal is satisfied that the applicant has engaged in those activities in Australia for the purpose of enhancing his application for a protection visa, and in accordance with Section 91R(3), the Tribunal must disregard those activities. 

26. That reference to s.91R(3) of the Migration Act might overstate the effect of that section, but this was not to the detriment of the applicant, since the Tribunal achieved a positive adverse conclusion in relation to a matter that the section only required the Tribunal to have been left in doubt.

27. I have considered the procedures and reasoning followed by the Tribunal, and I am unable to identify any jurisdictional error affecting its decision. 

28. The applicant filed an application and an amended application which repeated and reformulated some detailed arguments.  It is too long  for me to extract in full.  I accept the submissions of counsel for the Minister which are on the file in answer to its arguments, but I shall summarise my own opinions on its arguments. 

29. The grounds of the application refer inaccurately to a description of jurisdictional error in Craig v South Australia (1995) 184 CLR 163, which was repeated in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351:

    It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision‑maker making such an error.  As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

    “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which refects it.” 

1. Ground 1 argues that the Tribunal “ignored relevant important documentary evidence; and made an erroneous finding” amounting to jurisdictional error.  However, I am unable to identify any evidence that was “ignored” by the Tribunal, and I consider that its findings on the applicant’s documentary evidence were findings which were open to it and were supported by rational reasons. 

2. Ground 1 contains particulars suggesting bias on the part of the Tribunal, on the basis that it arrived at findings of fact which were wrong, and that it wrongly assessed the evidence.  However, in my opinion the Tribunal’s reasoning in this case exhibit none of the features which were found, for example, in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264, and which caused the Court in that case to uphold a ground of apprehended bias. 

3. Criticism is made under this ground, and under a later ground, of the Tribunal’s conduct of the hearing.  It is asserted that “during the Tribunal’s hearing, what the Presiding Member did was trying every means to pick up “inconsistencies” of my claims or making my answers to “…vague and lacking in important details…”.  However, in the absence of a transcript, I am unable to accept that there was anything in the conduct of the hearing which would support a finding of bias, whether actual or apprehended. 

4. For the same reason, I am unable to support a claim made in Ground 3 of the amended application that the Tribunal failed to comply with obligations under s.425 because the applicant was not provided with appropriate interpreting services. There is before me none of the evidence which would be needed to establish that contention (see, for example, Finkelstein J in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723).

5. The Tribunal’s description of the hearing gives no support whatsoever for a claim that the applicant was not warned that the Tribunal might not believe important elements of his case and the corroborative evidence and witness which he presented. 

6. Ground 2 of the applicant’s amended application claims that the Tribunal was in breach of s.424A(1). Its argument, which is not clear, appears to rely upon the fact that the Tribunal did not accept the two corroborative documents. However, the Tribunal’s reasoning in relation to these documents, and its other reasons given when affirming the delegate’s decision, do not show the use of any information which was not given by the applicant to the Tribunal for the purposes of the review application (see s.424A(3)(b)).

7. The applicant appeared today, and criticised the Tribunal’s decision because it doubted his evidence and did not investigate his documents.  He argued, as did the amended application, that the documents were written by people who were “the most famous and important leader of the local Church”.  However, it is not suggested that the Tribunal was presented with evidence supporting the veracity of these two documents or their authors, and that the Tribunal failed to take into account any such evidence. 

8. In my opinion, it was open to the Tribunal to give the corroborative material such weight as did not overcome its opinion, based on an assessment of the applicant’s oral evidence, that he had fabricated his story of being a Shouter.  In this respect, the validity of the Tribunal’s decision is supported by the reasoning in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, which was referred to by the Full Court in WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225. The Tribunal was not under any obligation to conduct further investigations into the evidence and material presented by the applicant (cf. Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).

9. I have considered all the arguments presented by the applicant in his documents and in his oral submissions to me today, and I am not persuaded that the Tribunal made any jurisdictional error.  I consider that the decision was a privative clause decision, and 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:  Lilian Khaw

Date:  23 February 2007