SZJEC v Minister for Immigration - [2006] FMCA 1674

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1674

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal failed to afford applicant procedural fairness – whether Refugee Review Tribunal failed to comply with s.424A(1) of Migration Act 1958 (Cth) – whether Refugee Review Tribunal failed to give applicant an opportunity to give evidence – whether Refugee Review Tribunal Member interrupted applicant during hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B; 424A(1); 424A(3)(a); 424A(3)(b); 425; 474; pt.8 div.2

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10

Applicant:

SZJEC

First Respondent:

MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2186 of 2006

Judgment of:

Emmett FM

Hearing date:

9 November 2006

Date of last submission:

9 November 2006

Delivered at:

Sydney

Delivered on:

9 November 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Ms T. Quinn, Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2168 of 2006

SZJEC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 June 2006 and handed down on 4 July 2006.
The applicant was born on 21 October 1973, and claims to be from the People’s Republic of China (“the PRC”), and of Christian faith.

The applicant arrived in Australia on 19 December 2005, having legally departed from Pudong on a passport issued in his own name, and a subclass 456 business visa issued on 8 December 2005.
On 1 February 2006, the applicant lodged an application for a protection (class XA) visa with the Department. In his protection visa application, the applicant claimed that he feared persecution by PRC authorities due to his involvement in Christian underground church activities in Sanming City.
The applicant claimed that he worked in his father-in-law’s factory from March 2000 and that in 2002, his father-in-law had a dispute about arrears in respect of an order for spring products and the quality of those products.
The applicant claimed that he and his father‑in‑law were prevented from entering the plant with which they had the dispute, and that, in January 2003, they were arrested by the Public Security Bureau (“the PSB”) and detained for a month. The applicant claimed that, whilst in detention, he and his father-in-law were beaten by police until they signed a confession.
The applicant stated that, during the detention, he met a Christian who was a key member in the underground Christian church in the Sanming area. The applicant stated that, after his release in March 2003, he contacted this person and began to participate in underground church meetings and activities, such as distribution of religious promotion materials.
The applicant stated that, in around August 2005, the religious activities at the workshop of his father‑in‑law’s factory came to the attention of the PSB and the applicant was threatened by members of the PSB in respect of his religious activities.
The applicant stated that, in mid‑December 2005, the friend whom he had met in detention and who had introduced him to the underground church, was arrested with two of his assistants, and that, shortly after this arrest, the PSB discovered the applicant’s role in underground church activities. For those reasons, the applicant asserted that he would be subject to persecution because of his Christian beliefs and activities in the PRC, were he to return to the PRC.
On 8 March 2006, a delegate of the first respondent (“the Delegate”) 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 Refugees Protocol (“the Convention”).
On 11 April 2006, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The applicant provided no further material in support of his claims to the Tribunal. However, the applicant attended a hearing before the Tribunal at which he gave oral evidence in substantially similar terms to those of his written claims. The Tribunal considered the written claims made by the applicant in support of his protection visa application and the evidence given by the applicant at the hearing.
The Tribunal noted in particular that, since his arrival in Australia, the applicant claimed to have continued his Christian practice at Ashfield Presbyterian Church. The Tribunal had regard to a letter from an elder of that church stating that the applicant had attended services and was regarded as a born-again Christian.
The Tribunal accepted that the applicant is a citizen of the PRC. Whilst the Tribunal noted that there were some inconsistencies between the applicant’s written claims and his oral evidence, those inconsistencies were minor and were not taken into account by the Tribunal in any adverse findings.
The Tribunal found the applicant’s evidence about his work in his father-in-law’s factory revealed little or no knowledge of the products produced and an inability to describe the nature of the work the applicant claimed to have done at the factory during the period.

The Tribunal also noted that, despite the applicant stating that his wife and children lived with him at the factory, he could not describe their living arrangements or accommodation. For those reasons, the Tribunal did not accept that the applicant worked for his father-in-law in Sanming City in a factory making springs.
The Tribunal did not accept the applicant’s allegation of detention for a month in Sanming, or being beaten by police during that detention. The Tribunal based that finding on two reasons. The first reason was because the Tribunal did not accept that the applicant had worked in the factory in Sanming. The second reason was because the applicant was not able to describe to the Tribunal the circumstances of his detention in any detail, and nor was he able to provide any documents in relation to his detention.
Because the Tribunal did not accept that the applicant was detained, the Tribunal also did not accept that the applicant met a Christian in detention and became interested in Christianity through this person. The Tribunal noted that part of its reasoning process for that finding included the applicant’s inability to demonstrate knowledge of Christian beliefs and practices other than at a very superficial level. The Tribunal found that the applicant’s knowledge of Christianity was not consistent with a person who has been a committed Christian and allegedly heavily involved in activities with an underground Christian church to such an extent that his activities would bring him to the attention of authorities. Because the Tribunal did not accept that the applicant became a Christian in the PRC, it did not accept the applicant’s claims about his activities with the underground church.
The Tribunal noted that the applicant had attended services at a Christian church in Sydney following his arrival in Australia.

The Tribunal accepted that the letter from the elder of that church was genuine and expressed that elder’s genuinely held opinion that the applicant is a Christian. However, the Tribunal noted that because it rejected the applicant’s claims of having been a Christian in the PRC, the Tribunal found that the applicant concocted his claims of being a Christian in PRC to support his application for refugee status, and had attended Christian church in Australia for the sole purpose of obtaining evidence to strengthen his claims. The Tribunal found that the superficial level of knowledge of Christian practice and belief demonstrated by the applicant was consistent with a person who had attended church services and bible classes for a relatively short period of time.
The Tribunal also had regard to country information, which it found indicated that most worshippers in the PRC practise their religious beliefs without restriction. However, the Tribunal did note that country information suggested that government action is dependent on the attitude of local government officials. The Tribunal also noted that, generally, those at greatest risk of harassment or occasional detention are leaders and organisers of the unofficial churches in the areas where there is little tolerance of such activities. The Tribunal concluded that, if the applicant were to return to the PRC in the foreseeable future, he would not be at risk of harm for reason of attendance at a Christian church in Sydney.
The Tribunal also noted that, whilst it had found that the applicant did not hold genuine Christian beliefs, even if the Tribunal was satisfied that he had begun to hold such beliefs, the Tribunal did not accept that he would be at any risk if he returned to the PRC because he has not been, and would not become, a leader or organiser of underground Christian church activities. Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

On 8 August 2006, the applicant filed an application in this court seeking judicial review of the Tribunal’s decision. The applicant is unrepresented before the court this morning, although has the assistance of a Mandarin interpreter. The applicant confirmed that he relied on the application filed by him and on an affidavit filed on 12 October 2006, affirmed by him on that date, annexing a copy of a transcript of the hearing before the Tribunal.
Before me this morning, the applicant stated that he believed the Tribunal’s decision was unfair and that he is a refugee who has been persecuted because of his religious beliefs. The applicant asserted that the Tribunal did not provide him with sufficient reasons for affirming the decision under review, and that its conclusion that he was not a Christian was incorrect.
The applicant stated that the Tribunal did not give him an opportunity to say what he wished, and did not provide him with relevant information about the process. When I asked him what he meant by these assertions, he stated that the Tribunal member did not go through his claims in a detailed and clear way and that the Tribunal often interrupted what he was saying when he was saying something, and asked him irrelevant questions. The applicant then stated that he was scared of the Tribunal member, who did not give him an opportunity to explain that he is a Christian.
I directed the applicant’s attention to the last page of the transcript, where the Tribunal member stated, “We have discussed your claim. Are you happy that you told me everything that you think is important?” and the applicant answered, “Almost…Others would be contained in my materials in the claim”. I indicated to the applicant that such an exchange did not support his contention of not having an opportunity to put what he wished. The applicant responded that he answered as he did because he could not think of anything else to say at the time.
At the heart of the applicant’s complaints as expressed orally this morning appears to be a complaint that the Tribunal did not give him a fair chance to give his evidence because he was frequently interrupted and misunderstood. That complaint is made by the applicant in ground 3 of his application, and I shall deal with it shortly.
I now turn to the applicant’s application.
In Ground 1, the applicant complains that the Tribunal failed to consider his claims, misunderstood his claims and made mistakes in relation to important findings of fact. The applicant then identifies various findings of fact made by the Tribunal with which he disagrees.
The applicant complained that the Tribunal member should have clearly indicated to him its concerns about his limited knowledge of the technical work he claimed to have done at his father‑in‑law’s factory. I mention this particular allegation because it is one that was made orally before me this morning in submissions, and is referred to in Ground 1(b) of the applicant’s amended application.
Section 422B of the Act is an exhaustive statement of the rules of natural justice, and in the circumstances, there can be no denial of procedural fairness by the Tribunal because it did not raise any such concerns with the applicant.
However, in this case, it is apparent from the transcript that the Tribunal had the following exchange with the applicant. The Tribunal member stated, “Doesn’t sound as though you got a lot of knowledge about the job that you said you would have been doing a number of years to me”, to which the interpreter gave the applicant’s answer of, “How come?” The Tribunal member replied, “I just – your description is very general. It’s not in detail.” The interpreter interpreting the applicant’s answer stated, “It is difficult for me to describe.” In the circumstances, it is clear that the Tribunal did put those concerns to the applicant
Paragraph (1)(d) of Ground 1 appears to complain that the Tribunal member failed to seek further evidence from the elder of the applicant’s church in Australia beyond the content of the letter. The authorities make it clear that there is no obligation on the Tribunal to investigate the applicant’s claims and material further, except perhaps where such material is readily available and centrally relevant to the decision to be made.
In relation to any evidence of the elder, the Tribunal accepted the elder’s letter of support that, in his view, the applicant is a Christian. The Tribunal also considered in its conclusions that, even if the applicant was a Christian in Australia, the Tribunal was not satisfied that he would suffer persecution were he to return to the PRC, because of that fact alone.
The other particulars in Ground 1 appear to be seeking merit review in that they disagree with findings of fact made by the Tribunal. That is a course this court cannot undertake. As is apparent from the Tribunal’s decision, as disclosed above in these Reasons, findings of fact were made following consideration by the Tribunal of the applicant’s claims. Those findings were open to the Tribunal on the material and evidence before it, and for which the Tribunal gave reasons.
Accordingly, Ground 1 is not made out.
Ground 2 is a complaint that the Tribunal member failed to comply with its obligations under s.424A(1) of the Act in that it should have given to the applicant the information contained in the letter from the elder of the Sydney church attended by the applicant, and have invited the applicant to comment upon it. This ground is plainly misconceived in that the letter was information given by the applicant to the Tribunal, and by operation of s.424A(3)(b) of the Act, such information is excluded from the requirements of s.424A(1) of the Act.
The applicant also complains that country information to which the Tribunal had regard in relation to official and unofficial churches in the PRC was information that the Tribunal should have provided to the applicant pursuant to s.424A(1) of the Act. Again, the authorities have made it clear that such information is excluded from the requirements of s.424A(1) of the Act by virtue of s.424A(3)(a) of the Act. For those reasons, Ground 2 is not made out.
Ground 3 purports to allege that the Tribunal failed to comply with its obligations under s.425 of the Act. Section 425 of the Act requires the Tribunal to invite the applicant to appear at a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The particulars relied upon in the application, and indeed by the applicant in oral submissions to me this morning, make it clear that he is not contending that the Tribunal failed to invite him to appear at a hearing. Rather, he complains that the Tribunal did not give him an opportunity to give evidence and present arguments because he was frequently interrupted.
A perusal of the transcript does not disclose any interruption of the evidence provided by the applicant. None was identified by the applicant, and none was identified by the first respondent. In the circumstances, even if there was an occasional interruption, such interruptions did not occur in any way that would suggest the applicant was not given an opportunity to give evidence in support of his claims because of “frequent interruptions”.
It is apparent from the transcript that the Tribunal sought to explore with the applicant his evidence, and indeed before he concluded the hearing, the Tribunal confirmed with the applicant that he had told the Tribunal member everything he thought to be important. The applicant said this morning that he could not think of anything at that time to say to the Tribunal member because he was scared of the Tribunal member. There is no evidence before me that would suggest that any fear that the applicant may have held was reasonable in the circumstances. Certainly on the face of the Tribunal’s decision, and the transcript, none is apparent.
The questions asked by the Tribunal member as disclosed in the transcript appear to be relevant, and the language used does not suggest any confrontation. Where the interpreter on the odd occasion stated that the applicant hadn’t understood the question, it was readily repeated. Further, there is nothing to suggest that either the Tribunal member or the applicant had any great difficulty in understanding the exchanges that took place between them. The applicant was unable to identify any particular part of the transcript as evidence of such alleged incident, nor was he able to recall any particular incident.

His complaints were of a general nature about the hearing.
In the circumstances, Ground 3 is not made out.
Ground 4 is a complaint that the Tribunal member intentionally ignored two particular pieces of country information.
I asked the applicant whether or not it was information provided by the applicant to the Tribunal. The applicant said it was, and he thought it was sent to the Tribunal by his migration agent. There is nothing in the material before this court to suggest that any such letter was received by the Tribunal. There is nothing on the face of the transcript of the hearing, or in the decision, that indicates that such material was raised by the applicant and thought to be provided. The applicant suggested that perhaps the letter had not been received.
In any event, in the circumstances, where the transcript does not suggest that the applicant at any time sought to provide such material, that the record before the Court does not suggest that any such material was received by the Tribunal, and the Tribunal’s decision does not refer to any such material having been provided by the applicant, it cannot amount to a jurisdictional error for the Tribunal to fail to have considered such material.
In any event, the authorities have made it clear that it is a matter for the Tribunal the country information to which it has regard, as is the weight the Tribunal gives that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11])
In any event, in the proceeding before this court, the country information played little part in the Tribunal’s conclusions about the applicant’s claims. The Tribunal did not accept the applicant’s claims as truthful, and, as stated above in these reasons, those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it gave reasons.

Accordingly, Ground 4 is not made out.
Ground 5 is a general complaint that the Tribunal did not fairly and carefully assess the applicant’s claims or conduct its review. Consideration of the grounds referred to above make it clear that no such allegation can be substantiated. There are no other particulars provided in support of that contention.
Accordingly, Ground 5 is rejected.
The decision of the Tribunal 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 and the proceeding before this Court is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 14 November 2006