SZJIH v Minister for Immigration

Case •

[2007] FMCA 1017

•

29 June 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJIH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1017
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Applicant: SZJIH
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG2533 of 2006
Judgment of: Emmett FM
Hearing date: 29 June 2007
Date of last submission: 29 June 2007
Delivered at: Sydney
Delivered on: 29 June 2007

REPRESENTATION

Applicant appeared on his own behalf
Solicitors for the Respondent: Mr R. White, Sparke Helmore
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2533 of 2006

SZJIH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. 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


    20 July 2006 and handed down on 10 August 2006 (“the Tribunal”).

  2. The applicant was born on 28 October 1978 and claims to be from the People’s Republic of China (“the PRC”) (“the Applicant”).

  3. On 12 December 2004, the Applicant arrived in Australia, having legally departed from Louhu Airport on a passport issued in his own name and a Subclass 456 visa issued on 25 November 2004.

  4. On 18 January 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.

  5. In his protection visa application, the Applicant claimed that he feared persecution by the PRC authorities in relation to his activities with an underground church (“the Shouters”). The Applicant claimed that in April 2004 he was arrested and detained for two months, during which time he was beaten and not allowed any visitors. The Applicant claimed that following his release he sent his passport to his friend for a visa to come to Australia.

  6. On 26 February 2005, 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”). The Applicant was notified of this decision by letter dated and posted on 26 February 2005.

  7. On 1 April 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 12 February 2004, a differently constituted Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.

  8. The Applicant filed an application in this Court for judicial review of the decision of the differently constituted Refugee Review Tribunal. On 2 May 2006, by consent, the decision of the differently constituted Refugee Review Tribunal was set aside and the matter was remitted to the Refugee Review Tribunal for determination according to law.

  9. On 20 July 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

  10. On 8 September 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 20 July 2006.

Legislative framework

  1. 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.

  2. 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.

  3. Australia has protection obligations to a refugee on Australian territory.

  4. 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.”

  5. 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 proceeding

  1. On 26 May 2006, the Tribunal invited the Applicant to come to a hearing on 13 July 2006. The Applicant attended that hearing and gave oral evidence.

  2. 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 as well as the application for review.

  3. The Applicant also provided to the Tribunal a document that purports to be a translation of a “wanted notice” which he claims was sent to him from his village in the PRC after his arrival in Australia.

  4. The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:

    “8. The Tribunal did not regard the applicant as a witness of truth and found he had been untruthful in his claims and evidence. As such, it could not be satisfied that he was a “Shouter” or a Christian: CB 70.5. It found the applicant’s knowledge about the “Shouters” and Christianity at the hearing was “negligible” and listed numerous examples of how the applicant in response to questions at the Tribunal hearing (CB 70.7 – 73.5) demonstrated a “less than minimal” knowledge of the “Shouters” and Christianity in general: CB 73.7. The Tribunal also considered the applicant’s reason that he could not find a Church in Australia to explain why he had not attended Church more frequently since his arrival to be “far-fetched” and “fanciful”: CB 73.8. The Tribunal concluded that the applicant had fabricated his claims to be a Christian and a “Shouter” to enhance his application for a protection visa and accordingly gave the claims no weight: CB 73.9.

    9. In light of its serious adverse credibility findings regarding the applicant, the Tribunal placed no reliance on the document provided by him in support of his claims: CB 74.1.

    10. The Tribunal rejected the applicant’s claims and threats of harm by the Chinese authorities as “fabrications”: CB 74.4. The Tribunal could not be satisfied on the basis of its significant adverse credibility findings that the applicant faced a real chance of being persecuted for a Convention reason in the foreseeable future. Accordingly, it found that the applicant was not a person to whom Australia owed protection obligations: CB 74.5.”

The proceeding before this Court

  1. The Applicant was represented before this Court, although had the assistance of an interpreter. I note the Applicant has also participated in the Panel Advice Scheme.

  2. The Applicant relied on the grounds identified in an amended application filed on 29 December 2006 in the following terms:

    “1. The Tribunal had bias against me and could not fairly consider my application for a protection visa. The Tribunal did not believe my claims because of the bias against me. A lot of information provided at my hearing was misunderstood by the officer. The Tribunal failed to consider my application according to s.91R of the Migration Act 1958.

    2. The Tribunal made a decision on my application based on the officer assumption, not evidence and independent information.

    3. The Tribunal did not provide me an adequate opportunity to respond the substance of the information.

    4. The Tribunal failed to assess the chance of my being persecuted on my return to China.”

  3. Each of the grounds was interpreted for the Applicant and he was invited to make whatever submissions he wished in support of any of the grounds or in support of his application generally. The Applicant stated that he wished to add a further complaint that the Tribunal did not listen to his explanation and asked him questions without giving him an opportunity to make his own submissions. The Applicant stated that the Tribunal thought he was fabricating his claims.

Ground 1

  1. To the extent that ground 1 is alleging bias or apprehended bias on the part of the Tribunal, such a serious allegation requires evidence (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).

  2. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).

  3. Further, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

  4. At the end of its decision the Tribunal noted that at the conclusion of the hearing it had pointed out to the Applicant that there were contradictions in his claims and evidence and that his claims were not consistent with independent evidence. The Tribunal noted that it gave the Applicant an opportunity to clarify the contradictions but found that the Applicant did not give any explanation that was “reasonable or meaningful”.

  5. In its decision, the Tribunal referred to exchanges it had with the Applicant during the hearing about the Applicant’s claims. In particular, the Tribunal noted questions it asked the Applicant about the Shouters. For example: where they came from; who was their founder; what were the names of some of the books written by the founder, Watchman Nee, to describe some of the practices of Shouters; what it is that Shouters actually shout; what were the duties of every Shouter; and, how were the Shouters are organised. The Tribunal noted the Applicant’s responses which, for the most part, were that he did not know.

  6. The Tribunal noted that it also asked the Applicant about his attendance at church in Australia and noted his response that he did not go to church in 2005 but had been five or six times in 2006.

  7. The Tribunal noted the Applicant’s claim that he had read the Bible “a little” and that he reads it in Australia. The Tribunal found that independent evidence disclosed that one of the duties of Shouters is to read the Bible. The Tribunal then recited a number of questions that it asked the Applicant about the Bible and the Applicant’s answers which, again, for the most part, he was unable to answer.

  8. The Tribunal also noted its exploration with the Applicant about other matters relating to Christianity.

  9. The Tribunal gave consideration to the Applicant’s document provided in support of his review application. The document appeared to be a wanted certificate that disclosed that the Applicant was wanted for participating “in evil religious group, drawing people in participating his group activities and distributing leaflets about the evil religious group” and that he showed no regret over his actions and continued to participate. The Tribunal noted that it asked the Applicant how and when he obtained the certificate and noted the Applicant’s response that it was obtained from his village committee and sent to him after he was in Australia.

  10. The Tribunal noted that it asked the Applicant what he thought would happen to him if he were to return to the PRC and noted his response that he would be detained for being a Shouter.

  11. The Tribunal noted that it told the Applicant about concerns it had with his evidence at the hearing; in particular, his lack of knowledge about the Shouters and Christian beliefs and practices generally, despite claiming to have been a member of Shouters for 10 years. The Tribunal noted that it put to the Applicant that his knowledge of the Shouters and Christianity generally was minimal. The Tribunal noted the Applicant’s response that he was a guard for the Shouters and was responsible for notifying others of the location where meetings would be held.

  12. In its decision the Tribunal identified with some particularity independent information about Shouters.

  13. The Tribunal found the Applicant’s knowledge of both Shouters and Christianity to be “negligible”. In particular, the Tribunal noted that the Applicant did not know what religious phrases were shouted by Shouters. The Tribunal also noted that when it asked the Applicant what was the duty of every Shouter, the Applicant responded they give out leaflets as volunteers. The Tribunal noted that independent information indicated that it is the duty of every Shouter to go out and preach the gospel to relatives, neighbours, friends and colleagues and to read the Bible. The Tribunal found that the Applicant’s answers to questions from the Tribunal about the Bible and Christianity generally lead it to find that the Applicant’s knowledge about the Shouters, the Bible and Christianity was “less than minimal”. The Tribunal also rejected the Applicant’s claim of attendance at church to “lack credibility” and found the Applicant’s explanation that he could not find a church to be “so far-fetched as to be fanciful”.

  14. The Tribunal found that the Applicant had fabricated his claims to be a Christian and a Shouter to enhance his claim for a protection visa and gave his claims no weight. The Tribunal found the Applicant to be “totally lacking in credibility” and “untruthful”.

  15. Having regard to the comprehensive adverse findings of the Applicant’s credibility, the Tribunal found that it could not rely on the document, in the nature of the wanted certificate, provided by the Applicant in support of his review application.

  16. Based on these findings, the Tribunal concluded that the Applicant’s claims of harm and threats of harm by the Chinese authorities to be a fabrication. The Tribunal, therefore, was not satisfied that the Applicant has a real chance of persecution for a Convention related reason were he to return to the PRC in the foreseeable future and, accordingly, was not satisfied that his fear of persecution for a convention related reason was well-founded.

  17. It is plain from the above that the Tribunal considered the evidence and material before it, made findings of fact based on the evidence and material before it and reached conclusions based on those findings of fact. The findings of fact made by the Tribunal and the conclusions it reached were open to it on the evidence and material before it and for which it gave reasons.

  18. To the extent that the Applicant claims in ground 1 that a lot of the information provided at his hearing was misunderstood by the Tribunal, no such allegation is made out on the face of the Tribunal record.

  19. Further, the Applicant was directed on 26 October 2006 to file and serve any evidence on which he intended to rely, including any transcript of the Tribunal hearing, by 11 January 2007. There is no evidence before this Court of any attempt made by the Applicant to obtain any evidence or transcript.

  20. In response to these matters the Applicant told this Court that he could not read English, although a student friend of his had translated some of the documents for him. It was pointed out to the Applicant by this Court that the contact details of translating and interpreting services have been provided to him in the past, including in the Tribunal’s letter dated 26 May 2006, in which it invited the Applicant to come to the hearing, which he attended.

  21. In the circumstances, there have been opportunities provided to the Applicant to file evidence on his behalf and to obtain assistance with translations. The Applicant must take some responsibility for seeking to help himself. Accordingly, to the extent that the Applicant may have been seeking an adjournment of today’s hearing to obtain further evidence, although not made in terms, such application is refused.

  22. The Applicant’s allegation in ground 1 about the Tribunal’s failure to consider his application in accordance with s.91R of the Act is not particularised. It is clear from the reasons above that the Tribunal considered the Applicant’s claims in accordance with the relevant law and made findings and reached conclusions in accordance with its statutory duty and which were open to it on the evidence and material for it and for which it provided reasons.

  23. Accordingly, ground 1 is not made out.

Ground 2

  1. Ground 2 alleges that the Tribunal made its decision on assumptions made by the Tribunal rather than evidence and information. To the extent that this ground alleges some form of bias on the part of the Tribunal, such an allegation is dealt with in these reasons above under ground 1.

  2. Otherwise, the Tribunal had detailed regard to evidence and independent information before it.

  3. Accordingly ground 2 is rejected.

Ground 3

  1. Ground 3 alleges that the Tribunal did not give the Applicant an adequate opportunity to respond to “the substance of the information”.

  2. However, as is apparent from these reasons above the Tribunal noted that it pointed out to the Applicant various contradictions in his claims and evidence and their inconsistency with independent evidence. In particular, the Tribunal noted that it gave the Applicant “the opportunity to clarify the contradictions regarding the various claims that he has made”.

  3. It is also apparent, as is referred to above in these Reasons, that the Tribunal asked the Applicant open ended questions such as what he thought would happen to him if he returned to the PRC.

  4. Accordingly ground 3 is rejected.

Ground 4

  1. In ground 4 the Applicant alleges that the Tribunal failed to assess his chances of being persecuted on his return to the PRC. That allegation is not made out on the face of the Tribunal record.

  2. The Tribunal found the Applicant to be “totally lacking in credibility” with regard to his claim to fear harm in the PRC for reason of his religion.

  3. Further, the Tribunal made a specific finding, referred to above in these Reasons, that “given the significant adverse findings on credibility in relation to the Applicant, the Tribunal cannot be satisfied that the Applicant has a real chance of being persecuted for a Convention reason in China in the foreseeable future.” That finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.

  4. Accordingly ground 4 is not made out.

  5. Otherwise the Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review.

Conclusion

  1. 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.

  2. The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 29 June 2007

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