SZJFW v Minister for Immigration - [2007] FMCA 1369

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJFW v MINISTER FOR IMMIGRATION

[2007] FMCA 1369

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether breach of s.424A or s.425 of Migration Act 1958.

Migration Act 1958 (Cth), ss.91R, 424A, 425

Craig v South Australia (1995) 184 CLR 163
Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 230 ALR 1

Applicant:

SZJFW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2302 of 2006

Judgment of:

Barnes FM

Hearing date:

2 August 2007

Delivered at:

Sydney

Delivered on:

2 August 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr A. McInerney

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2302 of 2006

SZJFW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 July 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, arrived in Australia in November 2005 and applied for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
The applicant claimed, in essence, that he had suffered persecution as a Christian in China. In a statutory declaration accompanying his protection visa application he referred in particular to his association with religious gatherings and Bible studies organised by a Christian business associate who became a friend. He claimed that he had been baptised and through this group belonged to the underground church.
He claimed that his friend and her employees were arrested because the police found religious materials at her factory and that subsequently he and another person were detained due to their special relationship with his friend. After their release from detention they were continually troubled by the Public Security Bureau but later sought to re-establish a group to distribute religious propaganda materials. He claimed that after the Public Security Bureau then started to investigate the group he escaped China with the help of a friend and that since his departure others had been arrested.
In connection with the application for review the applicant provided to the Tribunal a letter addressed ‘To Whom It May Concern’ from the chairman of the Christian Assembly of Sydney dated 22 May 2006 which confirmed that the applicant had been “meeting with the church” in a named suburb “November 2005” and that “we have no hesitation in commending” him.
In its reasons for decision the Tribunal detailed the conduct of the Tribunal hearing and its questions of the applicant and his responses in relation to a range of issues, including the harm he feared, the religious practice he claimed to have engaged in in China, his claims about detention and mistreatment and what occurred thereafter, his religious practice in Australia as well as religious freedom in China and aspects of Christian beliefs and practices.
In its findings and reasons the Tribunal stated that it found a number of aspects of the applicant’s oral evidence to be “problematic”. It found that the way in which he gave specified aspects of his evidence seemed contrived. It did not find his explanation for why he attended the friend’s religious group to be credible. It had regard to his explanation that he knew the group was a religious group when he was invited to attend and that he attended even though he had never followed any religion. However the Tribunal found the applicant’s evidence as to his beliefs before that time to be exaggerated and disingenuous and did not find it believable that the applicant would not have taken steps to find a religion he could follow prior to being invited to the gathering if he held the claimed religious views. It did not find his explanation for not doing so (that he did not know many Christians or where they gathered) convincing, noting also that the excuse of business had not prevented him from allegedly attending the gatherings at the time at which he claimed he started to participate.
The Tribunal had regard to changes in the applicant’s evidence during the hearing, in particular as to whether he had asked about the secrecy of group meetings and in relation to what the Chinese Constitution stated about religious freedom. It outlined concerns raised by such changes in evidence. The Tribunal also found that the applicant was intentionally evasive at times in respects which it detailed.
While the Tribunal found that the applicant did have some knowledge about Christian beliefs and practices, it was of the view that his knowledge was lacking in other important specified respects.

It expressed a lack of satisfaction with his explanation for his lack of knowledge of particular issues (such as his lack of knowledge that Christmas was significant because it celebrated the birth of Jesus). It also found vagueness in his evidence as to what was celebrated at Easter. The Tribunal assessed the applicant’s degree of religious knowledge in light of his claims that from October 2002 he had attended a Christian group in China on a weekly basis (where he studied the Bible) and that in Australia he had attended a Christian church every week since November 2005 and sometimes attended Bible studies and read the Bible. Having regard to these factors the Tribunal found that the applicant’s lack of knowledge raised doubts about whether he was involved in a Christian group on a weekly basis in China or whether he had studied the Bible as he claimed. It also had regard to changes in the applicant’s oral evidence in relation to who wrote the Bible and his apparent evasiveness in certain responses. It addressed his explanation for the variation in his evidence.
The Tribunal continued: “Individually the above matters would not have led the Tribunal to draw an adverse conclusion about the applicant’s credibility but collectively they have led the Tribunal to find that the applicant was not a credible witness and that he did not become a Christian in China as he claims.”
On the basis of the letter from the Christian Assembly of Sydney the Tribunal accepted that the applicant “has attended a church here and engaged in some other religious activity”. However as it had not found him credible it was not satisfied that he engaged in this conduct other than for the sole purpose of strengthening his refugee claim. Accordingly, it disregarded this conduct in assessing the applicant’s case under s.91R(3) of the Migration Act 1958 (Cth).
The Tribunal concluded that as it had found that the applicant was not a Christian in China it did not accept that he joined the religious group as claimed or formed his own religious group or that he was detained or subsequently monitored. It considered the additional claims he had made that he was viewed as a political criminal in China because of his religious activities and detention and that his parents had suffered as a result. However, having rejected the applicant’s claims in relation to his Christianity in China the Tribunal did not accept these claims. Hence it found that the applicant did not have a well-founded fear of persecution for a Convention reason in China.
The applicant sought review of the Tribunal decision by application filed in this Court on 18 August 2006. He relies on an amended application filed on 12 January 2007. He did not file written submissions, but he made oral submissions to which I will return.
The grounds in the amended application are generally expressed as a claim that there was an error of law constituting jurisdictional error and a claim that there was an absence of natural justice. These claims are elaborated on in particulars. The first particular is a claim that the Tribunal failed to comply with the obligations under s.424A of the Migration Act 1958 (Cth). It is contended that the Tribunal’s finding that the applicant was not a credible witness and did not become a Christian in China “regarded specified pieces of information as a reason or part of the reason for the adverse credibility finding”. The amended application identifies four matters said to be such information: information regarding the applicant’s activities prior to being involved in the group, information regarding inconsistencies in his oral evidence, information regarding his detention which led the Tribunal to believe that he was intentionally evasive at times and information regarding Christmas, Easter and the Bible which was said to have led the Tribunal to believe the applicant did not have sufficient religious knowledge. It was contended that such information was not within the exceptions in s.424A(3) of the Act and hence that the Tribunal had erred in failing to provide the applicant with particulars of such information giving him an opportunity to comment on that information. It was submitted that even if the Tribunal had discussed some items of information at the hearing, it was under an obligation to provide particulars of the information in writing.
Under s.424A(1) of the Act the Tribunal must give to the applicant in a way it considers appropriate in the circumstances, particulars of any information the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. However, sub-s.424A(3)(b) provides that the section does not apply to information that the applicant gave for the purpose of application. In this case, and the contrary is not asserted in the amended application, the information in issue relied on by the Tribunal is information which the applicant gave to the Tribunal by way of oral evidence in the course of the Tribunal hearing. The s. 424(1) obligation does not apply to such information.
A couple of issues were raised by the applicant in oral submissions in relation to this aspect of his claims. First, it seemed to be suggested that the Tribunal may have relied on inconsistencies between written aspects of the applicant’s claims and his oral evidence. There is, however, nothing in the material before the Court and, in particular, nothing in the Tribunal reasons for decision to indicate that the Tribunal in any way relied on material provided in connection with the protection visa application that may have been inconsistent with oral claims such as to raise issues such as those considered in SZEEU v MIMIA & Anor (2006) 230 ALR 1 and SZBYR v MIAC [2007] HCA 26.
The applicant claimed that in the hearing the Tribunal had pointed out that his oral evidence was inconsistent with written information. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision and on the basis of that material and the Tribunal findings and reasons there is nothing to establish that the Tribunal breached s.424A(1) in the manner suggested. The Tribunal’s reasoning was based on aspects of the applicant’s oral evidence. Hence, even if such a possible inconsistency was raised in the hearing, it has not been established that any information provided in connection with the protection visa application was information within s.424A as information that would be the reason or a part of the reason for affirming the decision under review.
Further, while the Tribunal stated in its reasons for decision that it discussed with the applicant aspects of independent country information in relation to the situation in China, in fact the Tribunal findings turned entirely on problematic aspects of the applicant’s oral evidence, including aspects of his claims about what occurred in China, his knowledge about religious freedom in China and internal inconsistencies in what he said to the Tribunal about such knowledge and also his lack of knowledge about Christian beliefs and practices in specified respects. The Tribunal findings in this respect and its discussion of these matters with the applicant at the Tribunal hearing is not such as to give rise to an obligation under s.424A. The independent country information, moreover, falls within the exception to s.424A in s.424A(3)(a).
The only other information that may be meant to be raised by the applicant’s contentions is the letter from the Christian Assembly of Sydney confirming that the applicant had been meeting with the church in November 2005. It is apparent, however, that the Tribunal accepted on the basis of this letter that the applicant had attended that church and engaged in some other religious activity. Hence it cannot be said that such a letter was a reason or part of the reason for affirming the decision under review. I also note that it is apparent that the applicant provided that information to the Tribunal at the time of the Tribunal hearing.
The applicant’s contention that the Tribunal in some way did not accept the letter from the church as testimony to what had occurred in Australia is not established on the material before the Court. No failure to comply with s.424A is established.
The next aspect of the particulars in the amended application (also elaborated on in oral submissions) is a contention that the Tribunal failed to comply with s.425 of the Migration Act. Section 425 provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. In the amended application it is contended that the Tribunal failed to create a “good and proper chance” for the applicant to give oral evidence and present arguments in relation to the issues. It is contended that what the presiding member intended to do “from the beginning to the end” was “to pick up or make me to have some of inconsistencies from my evidence”. It is also suggested that the Tribunal “never clearly indicated” what the actual issues were and that as a result the applicant’s rights had been denied. In the amended application that the hearing was arranged as “a mere formality” or “done perfunctorily” and that the applicant believed the Tribunal had already made the decision before the hearing.
These contentions raise a suggestion of apprehended or actual bias as well as a suggestion of a failure to comply with s.425 of the Act. First, in relation to bias, whether actual or apprehended, there is no factual basis in the material before the Court for such an allegation. There is no transcript of the Tribunal hearing before the Court despite the fact that at a directions hearing of 14 September 2006 the applicant consented to orders that he file and serve any affidavit containing additional evidence relied on, including a transcript of the Tribunal hearing, by a stated date.
The Tribunal account of what occurred in the Tribunal hearing is not such as to establish either actual or apprehended bias or, indeed, that the hearing was a mere formality or carried out perfunctorily. It appears that the Tribunal hearing ranged over a number of issues, that the applicant was questioned and given an opportunity to provide explanations for his answers and that inconsistencies in his oral evidence were pursued with him in a manner that made apparent the issues arising in relation to the decision under review. There is nothing in the material before the Court to establish that there was a failure to comply with s.425 or any failure to identify issues in the manner considered by the High Court in SZBEL v MIMA (2006) 231 ALR 592. Again, there is no transcript before the Court in this case. The applicant’s contentions in this regard are not supported by the Tribunal reasons for decision which do not suggest that he was not given an opportunity to ascertain and address relevant issues in the course of the Tribunal hearing. On the contrary, the reasons for the decision make it clear that the Tribunal raised with the applicant its concerns in relation to a number of issues with respect to his credibility in particular in relation to his claims of being a Christian and the consequences thereof in China. No failure to comply with s.425 is established.
More generally, it is contended in the amended application that the Tribunal identified a wrong issue, asked a wrong question, ignored relevant material, relied on irrelevant material, made an erroneous finding or reached a mistake or a conclusion in a way that affected the purported exercise of the Tribunal’s power. While this is a description of what may constitute jurisdictional error (indeed the application refers to Craig v South Australia (1995) 184 CLR 163 and Dranichnikovv MIMA (2003) 197 ALR 389) it has not been established that the Tribunal fell into such an unparticularised error.
The applicant contended that it was not reasonable for the Tribunal to refuse his application just based on the fact that it did not accept his credibility or because it believed that he did not join the church until he came to Australia and hence found that he had engaged in those activities to strengthen his claims. It was argued that there was an incorrect assessment by the Tribunal of his claims based on an incorrect method.
First, the Tribunal considered first the applicant’s claims about what had occurred in China. It then went on to address the claims based on his activities in Australia. In that respect, as I have indicated above, it did accept that he had attended a church here and engaged in religious activity, but was not satisfied that he had engaged in this conduct other than for the sole purpose of strengthening his refugee claim having regard to its finding of a lack of credibility in relation to his claims about being a Christian in China. Such findings were open to the Tribunal (see s.91R(3)) and no jurisdictional error is established in the manner contended for by the applicant.
Insofar as the applicant takes issue with the Tribunal’s credibility findings, credibility is a matter for the Tribunal. The Tribunal’s findings were open to it on the material before it for the reasons that it gave. Insofar as the applicant seeks merits review, merits review is not available in this Court.
The applicant also raised an issue in relation to the conduct of the Tribunal hearing, suggesting that because he had been persecuted in China he had a kind of fear of government officials and that this may have affected his answers in the Tribunal hearing. It is however for an applicant to make out his case. As indicated, there is no transcript of the Tribunal hearing before the Court. There is nothing in the material before the Court to indicate that the Tribunal erred in the way in which it conducted the hearing or assessed the applicant’s claims in a manner constituting jurisdictional error.
The applicant submitted that the Tribunal should have telephoned the church elders in Australia to confirm its conclusion that he was not a Christian in China but only in Australia. However there is no evidence that the applicant sought, or that the Tribunal undertook, to obtain any further information from persons in Australia or elsewhere in relation to the applicant’s claims. It is for the applicant to put his claims before the Tribunal. The Tribunal is under no general obligation to make further inquiries. No jurisdictional error is established by the failure of the Tribunal to contact any person to obtain further information to establish aspects of the applicant’s claims. This is not a case in which it has been suggested that the Tribunal failed to consider a request that it take evidence from a particular person.

I note in that respect that at the time of the Tribunal hearing the applicant was represented by a migration agent, that the Tribunal (as usual) wrote to the applicant giving him the opportunity to put before it any documents, information or other evidence he wanted the Tribunal to consider and that the applicant, while taking the opportunity to put before the Tribunal a short letter from the Christian Assembly of Sydney, has not suggested that he put other information before the Tribunal or indeed, that he sought to do so or asked the Tribunal to obtain such other information or take evidence from some other person.
As no jurisdictional error has been established the application must be dismissed. As the applicant has been unsuccessful he should meet the costs of the first respondent. The amount of $4,800 which is sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 16 August 2007