SZJHY v Minister for Immigration
[2007] FMCA 2033
•7 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2033 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal erred in failing to consider the applicant’s claims properly and fairly. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(b); 474; pt.8 div.2 |
| SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZJHY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1060 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 November 2007 |
| Date of last submission: | 21 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms S. Kantaria, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1060 of 2007
| SZJHY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 dated 22 February 2007 and handed down on 6 March 2007.
The Applicant claims to be from the People’s Republic of China (“the PRC”) and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 28 October 2005 having departed from Gongbei on a false passport issued in another name and a visitor’s visa issued on 6 October 2005.
On 8 December 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities towards him and his family for his membership of the illegal religious organisation of Christian “Shouters”. The Applicant claimed that he was detained, physically and mentally mistreated and his family were forced to bribe authorities to secure his release. The Applicant claimed that when he fled his hometown his father and other relatives were detained and mistreated by the Chinese authorities in an effort to discover his location. The Applicant claimed he continued to spread propaganda materials for the Shouters at universities in the area to which he had fled. The Applicant claimed that in August 2005 his business was closed down and his wife and associates interrogated by the Public Securities Bureau (“PSB”) in his hometown. The Applicant claims he fled again, however, his wife and son were sent back to his hometown. The Applicant claimed that he fled the PRC on a false passport with the assistance of his father.
On 3 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 4 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 the review application. On 20 June 2006, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought review of that decision in this Court and on 14 November 2006 Federal Magistrate Nicholls remitted the matter back to the Refugee Review Tribunal for determination according to law.
On 22 February 2007, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 2 April 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 8 January 2007, the Tribunal invited the Applicant to attend a hearing on 7 February 2007.
The Applicant gave oral evidence before the Tribunal in which he expanded upon his written claims. The Tribunal asked the Applicant questions regarding his travel to Australia, his Christian beliefs and how he came to have them and his practice of Christianity in China and Australia as well as his claims of persecution by the Chinese authorities. The Tribunal noted that it highlighted several inconsistencies in the Applicant’s evidence and asked the Applicant to explain those discrepancies.
The Tribunal noted that it had before it the Department’s file, the delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The Tribunal accepted that the Applicant is a national of the PRC and that his real name is that shown on his Chinese identity card, rather than the different person named in his passport.
The Tribunal rejected the Applicant’s claims of having been a Shouter in the PRC. The Tribunal was prepared to accept that the Applicant began to affiliate with the Shouters church at some stage after his arrival in Sydney.
However, the Tribunal did not accept that the Applicant had come to Sydney for the purpose of seeking out a Shouter church as he claimed. The Tribunal found it “generally implausible and far fetched” that, upon arriving in Australia, the Applicant made it a priority on his first day to find Sydney’s Chinatown chapter of the Shouter church, in circumstances where the Applicant claimed to have asked for directions to “Christian group”. The Tribunal noted that it put its concerns about the Applicant’s evidence to the Applicant and noted the Applicant’s response.
The Tribunal also noted other exchanges it had with the Applicant about his evidence. The Tribunal noted matters of concern it raised with the Applicant about his evidence and noted the Applicant’s responses.
The Tribunal found the Applicant’s evidence to be inconsistent and evasive.
Ultimately, the Tribunal was not satisfied that the Applicant had joined the Shouters in the PRC. For that reason, the Tribunal did not accept that the Applicant would associate with the Shouters in the event of return to the PRC. The Tribunal found that the Applicant did not have a genuine commitment to Shouters.
The Tribunal was not satisfied on the evidence before it that the Applicant faced a real chance of Convention related persecution in the PRC and was therefore not satisfied that the Applicant’s claimed fear of Convention related persecution is well-founded.
Accordingly, the Tribunal affirmed the decision under review.
On 2 April 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant confirmed that he relied on the grounds identified in an amended application filed by him on 28 June 2007. The amended application identified four grounds as follows:
“1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
2. There was procedural error in the tribunal’s decision constituting an absence of natural justice.
…
3. The Tribunal made its finding on unwarranted assumption.
…
4. Cumulatively, the flaws in the Tribunal’s reasoning reveal a decision-maker who has not made a genuine attempt to assess all the evidence, so as to make the determination required under ss.36 and 414 of the Migration Act 1958 (the Act).”
Ground 1 is a bare assertion of error. It does not identify any error capable of review by this Court.
Ground 2 is supported by particulars that contend that the Tribunal fail to comply with its obligations under s.424A(1) of the Act. The information identified in the particulars was the inconsistencies in the Applicant’s evidence.
It is clear that the inconsistencies in the Applicant’s evidence were part of the reason for the Tribunal affirming the decision under review. However, the Tribunal’s adverse credibility finding arising from its evaluation of inconsistencies in the Applicant’s evidence does not enliven the obligations of s.424A(1) of the Act. Rather, the Tribunal’s findings of inconsistencies are the objective appraisals, thought processes and determinations of the evidence before it (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]).
The Tribunal had regard to oral evidence given by the Applicant to the earlier constituted Refugee Review Tribunal which was inconsistent with the evidence given to the Tribunal the subject of this review. Such inconsistencies are in respect of information given by the Applicant to the Tribunal for the purpose of its review. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
Ground 2 also alleged that the Tribunal failed to consider the Applicant’s claims properly and fairly.
The particulars in support of this ground essentially disclose disagreement by the Applicant with the findings and conclusions made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272, Abebe v Commonwealth of Australia (1999) 162 ALR 1, NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
To the extent that this ground is also accompanied by a particular that raises the issue of s.424A(1) of the Act, such issue is dealt with above in these Reasons.
The Tribunal identified the claims made by the Applicant; considered the evidence and material before it; made findings based on the evidence and material before it; gave reasons for those findings of fact; and applied the correct law to those findings in reaching its conclusions. In short, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. In the circumstances, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Accordingly ground 2 is not made out.
Ground 3 is supported by particulars that, again, do no more than cavil with the findings of fact made by the Tribunal. As referred to above in these Reasons, such a complaint invites merits review which this Court cannot undertake.
Accordingly, ground 3 is not made out.
Ground 4 appears to assert that the Tribunal did not make a genuine attempt to assess all the evidence in making its decision.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal provided an opportunity to the Applicant to give oral evidence and present arguments. A fair reading of the Tribunal’s decision makes it clear that the Tribunal identified with particularity the oral evidence of the Applicant before it. In particular, the Tribunal noted that it explored with the Applicant the following:
a)how the Applicant came to find the Shouters in Australia the same day he arrived;
b)how and why the Applicant distributed illegal Christian propaganda in China in the manner he claimed;
c)whether the Applicant was aware the Shouters were an illegal organisation before joining;
d)whether the Applicant had a false passport because of difficulty leaving the country or difficulty obtaining a visa;
e)the reason for the Applicant’s unusual flight itinerary from China, through Melbourne, to Sydney;
f)the Applicant’s unusual manner of speaking in which he often replied in the first person to ‘ourselves’ as if he travelled in a group; and
g)how the Applicant could have been a regular attendee of a Shouter’s church in Chinatown, Sydney as his letter of support purports when that is the day he claimed he arrived in Sydney.
A fair reading of the Tribunal’s decision makes it clear that the matters of concern arising from the Applicant’s evidence, particularly where it was inconsistent with evidence given to the earlier constituted Refugee Review Tribunal, were matters put to the Applicant by the Tribunal and the Applicant’s responses noted.
As referred to above, in these Reasons, the findings and conclusions were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, ground 4 is not made out.
Conclusion
The Tribunal’s decision 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.
The proceeding before this Court, commenced by way of application filed on 2 April 2007 is dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 5 December 2007
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