SZJAL v Minister for Immigration
[2007] FMCA 17
•25 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJAL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 17 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91R, 91X, 424A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 VAF v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2004) 206 ALR 471 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 SZHAY v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2006] FMCA 261 SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 SZHFE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (No 2) [2006] FCA 648 |
| Applicant: | SZJAL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1849 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 December 2006 |
| Date of Last Submission: | 12 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1849 of 2006
| SZJAL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 2 July 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 6 April 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 19 December 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background Facts
The Tribunal described the applicant as follows:
The applicant was born in Liaoning Province, China. He is aged in his early forties. He completed middle school in Shenyang City in 1980. He worked in various factories until 1986, then as a self-employed driver in 1986, a self-employed restaurant owner from 2002 to August 2004 and was unemployed from August 2004 to June 2005. He lived at the same address in Shenyang City from 1991 until June 2005. He arrived in Australia on 4 July 2005 using a passport issued in his own name. (Court Book (“CB”) page 81)
The applicant claims to fear future persecution in China because of his religious beliefs. He claims that if he returns to China he may be arrested if he continues to practise Christianity and will have to be more careful about where he practises.
Additionally, in his statement attached to his Tribunal review application, the applicant said that he would face persecution in China by exposure of the fact that he had applied for protection in Australia on the basis that the Australian Department of Immigration had sought “help from the Chinese consulate to question about my passport”.
(CB 59)
Notwithstanding this, the applicant confirmed to the Tribunal that the sole basis of his claim is that he is a Christian (CB 85.3).
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 81-84). Relevantly, they are in summary:
a)under his parents’ influence, the applicant was a Christian from childhood;
b)his family hosted prayer group meetings at their home in which the applicant started to participate in the last two years;
c)after the student movement in 1989, the government had “digged out” [sic] some underground churches and persecuted lots of members. Some members of the applicant’s church were detained but his family was safe;
d)the Public Security Bureau threatened to arrest him if he continued praying. He was arrested three times but other members of his family only received warnings;
e)the applicant and his parents were detained and put into educational classes, his parents still suffering from heart problems due to the persecution;
f)the applicant’s sister was arrested several times because she used to worship;
g)the applicant’s sister died a main leader of his church;
h)the applicant’s sister died in 1989 when he was very small.
The applicant arrived in Australia on 4 July 2005.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
6. The Tribunal stated [it] was unable to accept the applicant’s claims for the following reasons (CB 86-89):
a. the applicant displayed a very superficial and limited knowledge of Christianity and Christian religious practice at the hearing;
b. the applicant gave internally inconsistent evidence at the hearing on whether he read the Bible and was aware of its contents; and
c. the applicant made no attempt to join a church, bible study or prayer group in Australia, although he has been in Australia from July 2005, and this was inconsistent with the applicant’s claims that he came to Australia in order to practise his religion freely.
7. The Tribunal therefore did not accept that the applicant had given a credible account of his claims, that he was telling the truth about the events leading up to his departure from China, or that the applicant was detained and threatened by the Chinese authorities because of his religion and because he worshipped in a house church. The Tribunal also rejected claims that the applicant’s parents and sister were detained because they practised Christianity (CB 87.6).
8.Accordingly, the Tribunal was not satisfied that the applicant is or was a practising Christian and found that the applicant did not have a well-founded fear of persecution for reasons of his religion (CB 87.7).
Although the applicant had only pressed a claim for protection from persecution as a result of his religious beliefs, he had, as noted in paragraph 5 above, indicated a fear of persecution based on the fact that he had applied for protection in Australia. The Tribunal considered his claim and rejected it on the following bases:
a)given the Tribunal’s findings that the applicant is not a practising Christian, and was not wanted by authorities when he left and would not be arrested upon his return by reason of his religion, the Tribunal was not satisfied that the fact that the applicant’s passport had been issued by the Ministry for Foreign Affairs rather than the Ministry for Public Security demonstrated that he was of adverse interest to Chinese authorities by reason of his religion;
b)there was no evidence on file that the Department of Immigration advised the Chinese authorities that the applicant had applied for a protection visa but the Department of Foreign Affairs advised that applying for refugee status did not itself necessarily expose the applicant to persecution on return to China and, given the Tribunal’s findings that the applicant was not of interest to Chinese authorities for practice of his religion, the Tribunal was not satisfied that he had a real chance of persecution in China because he had applied for a protection visa;
c)although the applicant might be punished in China for using false business documents to obtain a passport and visa, the Tribunal is not satisfied that any punishment he might face on this account would be for a Convention reason;
d)although the applicant had not made any claims as to persecution on racial grounds based on the fact that he was a Manchu, the Tribunal considered this and concluded, on the evidence before it, that no claim of a well-founded fear of persecution because of the applicant’s ethnicity arose on that evidence and the Tribunal found the applicant did not have a well-founded fear of persecution because of his Manchu ethnicity; and
e)similarly, the applicant confirmed in his evidence to the Tribunal that he did not have any refugee claims in relation to certain events in Chinese history such as “Advance China”, the Cultural Revolution, the 1989 student movement, and the Zhongnanhai Falun Gong event. The Tribunal found that the applicant did not have a well-founded fear of persecution on the basis of these events.
The Tribunal concluded:
The Tribunal is not satisfied that the applicant is or was a Christian and was involved in worshiping at house churches in China. The Tribunal is not satisfied that there is a real chance that he will become involved in practising Christianity and underground church worship if he returns to China, now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for reasons of his religion. The Tribunal has addressed the applicant’s other claims above and has found that he does not have a well-founded fear of being persecuted for reasons of any other Convention reason. Beyond those matters addressed above, the applicant has not made claims under any other Convention reason and no such claims arise on the evidence before the Tribunal. The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for any other Convention reason. (CB 89)
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the applicant did not receive notification of the Tribunal’s decision until 20 June 2006 (with the consequence that his application to this Court was not out of time);
b)his application was not given a fair assessment by the Tribunal; and
c)he was not given an opportunity to comment on the grounds which formed the basis of the Tribunal’s decision.
The Minister has also suggested the possibility of a breach of s.91R(3).
Dealing with each of these grounds in turn:
The applicant did not receive notification of the Tribunal’s decision until 20 June 2006
The Tribunal’s decision is dated 20 March 2006 and was handed down on 6 April 2006. (CB 78) In the Court Book is a letter from the Tribunal to the applicant dated 6 April 2006 purportedly enclosing the Tribunal’s decision and reasons. (CB 74)
However, the Minister conceded at the hearing in this Court that there is no evidence which she can put before the Court to confirm that the letter from the Tribunal to the applicant was, in fact, posted on or about the date which it bears. On that basis, the Minister was prepared to concede the applicant’s allegation that he had not received the Tribunal’s decision until 20 June 2006.
On this basis, the application was made in time and there was no need for the Court to consider the applicant’s application for an extension of time to lodge the initiating process.
His application was not given a fair assessment by the Tribunal
This ground is not particularised and appears to be a claim for a merits review of the Tribunal’s decision.
It is not open to this Court, on a review to determine whether the Tribunal’s decision is affected by jurisdictional error, to review the Tribunal’s fact finding, unless a jurisdictional fact is involved. The Court’s task is to review the process by which the Tribunal reached its decision, not the merits of that decision: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at 579 [195].
As the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 at [52]-[53]:
The question that arises in the present case is whether and to what extent a factual error on the part of the Tribunal may evidence or constitute a failure to carry out its review function or otherwise amount to a failure of jurisdiction amenable to the writ of certiorari and/or mandamus and prohibition.
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.
The applicant does not assert that the Tribunal so misunderstood its task that any factual error constituted a jurisdictional error. Rather, his complaint is, in essence, about the conclusions reached by the Tribunal. In my view, the Tribunal’s factual conclusions were available to it on the evidence cited in its findings and reasons and no jurisdictional error is demonstrated in this respect.
Alternatively, the ground might be construed as an allegation of bias. However no evidence has been adduced by the applicant which would, or would purport to, support such an allegation. In the absence of evidence to support an allegation of this sort it cannot be made out and no jurisdictional error is demonstrated in respect of it.
He was not given an opportunity to comment on the grounds which formed the basis of the Tribunal’s decision
Section 424A of the Act provides:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non‑disclosable information.
A consideration of the findings and reasons of the Tribunal reveals that it based its decision on the evidence given to it by the applicant during the course of the Tribunal hearing. The effect of that evidence was that the Tribunal was not satisfied that the applicant had been or was, at the time of the hearing, a practising Christian. The applicant’s evidence also led the Tribunal to conclude that the applicant’s account was not credible and the Tribunal did not accept the truthfulness of the applicant’s allegations concerning events leading up to his departure from China.
The applicant has not identified in what way the Tribunal may have breached s.424A. However, to the extent that information contained in the applicant’s oral evidence to the Tribunal formed part of its reasons for affirming the delegate’s decision, such information falls within the exception contained s.424A(3)(b). To the extent that the applicant may be complaining about the conclusions which the Tribunal drew from such information, those thought processes do not amount to “information” for the purposes of the section: VAF v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2004) 206 ALR 471 per Finn and Stone JJ at 477 [24].
The Minister has suggested a possible breach of the section by reason that in arriving at its finding as to the applicant’s credibility, the Tribunal relied on the fact that the applicant had not attended a church, prayer or Bible study group since arriving in Australia and made this observation in the context that the applicant had been in Australia from July 2005. The applicant may not have given oral evidence as to the date of his arrival in Australia but his arrival date of 4 July 2005, noted in the first paragraph of the Tribunal’s decision (CB 79.1) is documented by an arrival stamp in his passport the relevant page of which is reproduced at CB 29 and the Tribunal records at p.6 of its decision (CB 83.2) that at the hearing the applicant presented his passport to the Tribunal. In the circumstances, the information concerning the date when the applicant arrived in Australia is information provided to the Tribunal by the applicant and thus falls within the exception contained in s.424A(3)(b): SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 per Moore J at 242 [91], Weinberg and Allsop JJ agreeing at 254 [173] and 268 [264]; SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 at [21]-[26]. The Minister also noted that the issue generally was discussed in evidence at the Tribunal [CB 84.9] which has the effect of attracting the operation of s.424A(3)(b) to the extent that the information was provided to the Tribunal in that evidence.
The Minister also points out that in the first full paragraph at CB 89, the Tribunal discusses events referred to in the statement submitted by the applicant with his protection visa application concerning various occasions of social upheaval in China. It is not apparent that this document would fall within s.424A(3)(b). In respect of such events in China the Tribunal recorded that neither the applicant nor his family had any involvement in the 1989 student movement or the Falun Gong movement nor had they suffered persecution as a result of the Cultural Revolution or “Advance China”. The Tribunal also recorded that the applicant confirmed in his evidence that he did not have any refugee claims in relation to these events. Unsurprisingly the Tribunal concluded that the applicant had no well-founded fear of persecution on the basis of these events. The information concerning the existence of the social events does not form “information” for the purposes of s.424A because those facts were not the reason or part of the reason for affirming the delegate’s decision. Rather, the reason for the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in relation to these events was the applicant’s evidence at the Tribunal about the lack of involvement by him or his family in those events and the fact that he did not have a refugee claim in relation to them with the unavoidable implication that he had no fear of persecution which was related to them.
Consequently, the Tribunal was not in breach of s.424A of the Act.
Breach of s.91R(3)
The Minister has raised an additional issue concerning a possible breach of s.91R(3) of the Act on the basis that the Tribunal took into account the applicant’s evidence that he made no attempt to join a church, Bible study or prayer group in Australia. Section 91R(3) provides:
For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
I am not of the view that there has been a breach of that section and, in this respect, I adopt the following submissions made on behalf of the Minister:
18.Section 91R(3) of the Act is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution: SZHFE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (No 2) [2006] FCA 648 at [30]-[31]; Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 at [25].
19.In the present case, the Tribunal relied on the applicant’s ‘conduct’ in Australia to reinforce its view that he was not a practising Christian. That is, the Tribunal relied on the applicant’s lack of action since arriving in Australia. The Tribunal concluded that the applicant’s inactivity was inconsistent with claims that he came to Australia in order to practise his religion freely (CB 87.2).
20.As it cannot be said that the applicant’s inactivity was ‘conduct in Australia to support a claim to have a well-founded fear of persecution’, s.91R is not enlivened.
21.Alternatively, if s.91R(3) is found to apply, then it is implicit from the Tribunal’s finding (ie. that the applicant’s inactivity in Australia established that he was not a practising Christian) that the Tribunal member was satisfied that the applicant’s conduct in Australia was not engaged in for the purpose of strengthening his claims to be a refugee.
22.Accordingly, the Tribunal member was not obliged to disregard the applicant’s conduct in Australia, and, in taking such conduct into account, did not breach s.91R(3) of the Act: c.f. SZHAY v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2006] FMCA 261 at [38]-[40].
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 25 January 2007
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