SZJMG v Minister for Immigration
[2008] FMCA 413
•7 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 413 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – allegation of bias not made out – no breach of procedural fairness obligations – the Tribunal’s “doubts” are not “information” for the purpose of s.424A(1) of the Migration Act 1958. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZJMG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3103 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 March 2008 |
| Date of Last Submission: | 26 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms S.A Sirtes |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3103 of 2007
| SZJMG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a member of an underground Catholic church. He alleges that while in China he attended church gatherings and that this subsequently led to him being arrested, detained and tortured. The applicant left China for Australia and arrived on 18 February 2006.
The applicant claims to fear persecution in China on the basis of his Catholic faith and membership of an underground Catholic church.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 6 April 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 22 August 2006 which was quashed by order of Stone J on 2 May 2007 (Court Book (“CB”) page 91).
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 25 of the Tribunal’s decision (CB 191 – 212). Relevantly, they are in summary:
Protection visa application
In his protection visa application, the applicant claimed that:
a)when he was a little boy he saw his parents engaging in religious activities. He followed his parents in these activities but did not know that they were Catholic until he grew up;
b)during the Cultural Revolution his parents were criticised by the cadres because of their religious activities;
c)when he grew up he became active in religious activities as well as activities to support the pro-democracy movement in China. He was in Tiananmen Square in 1989;
d)he became a member of an underground Catholic church in 2001 and attended church every Sunday; and
e)in September 2005 he and several key members of the church were detained by the police for investigation. He spent a large sum of money to secure his release and managed to come to Australia for protection.
First Tribunal hearing on 11 July 2006
The applicant attended a hearing before the Tribunal on 11 July 2006 and made the following additional claims:
a)the written statement attached to his protection visa application was originally written by the applicant in his own language and was subsequently translated into English by a friend;
b)in 1986 or 1987 he walked into his dormitory after completing a shift at the factory and found a group of people talking about “some issue”. After they left, a friend asked him whether he knew about Catholicism or not and the applicant stated that his parents had been believers for many years. The friend indicated that at the next meeting he would ask the applicant to join them. From then on, the applicant participated in their activities;
c)in 1989 he went to Beijing with three other Catholics to participate in a student demonstration for democracy and freedom;
d)he joined the church and was baptised in 2001;
e)when he was very young several people came into his house to have his parents arrested but he did not know why;
f)his parents did not let him study Catholicism because they were afraid he would also be persecuted. As he grew older he learned about Catholicism by reading the books and handwritten notes at home and he wanted to join;
g)when he arrived in Australia he did not attend church in the beginning but has recently attended on several occasions. He attends a church in Chinatown;
h)the applicant has read the Bible but does not have a good memory because he was gassed in an accident at work and since that time his memory has been poor;
i)he did not attend a registered approved church in China because he did not know where it was located;
j)he wanted to join the Catholic church in Australia so that he could have a better understanding of Catholicism and has discussed this matter with someone named Sister Jane;
k)in September 2005 the applicant and some others were having a Catholic gathering when the police came and took them to the police station. The applicant was interrogated about whether he was a member of a Catholic church and was told that if he persisted he would be arrested. His family paid 30,000RMB as security and the applicant was released after three days; and
l)the church in China is unsystematic and the applicant only has a superficial understanding. He is trying to make efforts to become a more competent Catholic in Australia and has applied for “distance learning method”.
Written submissions to the Tribunal dated 20 July 2007
On 20 July 2007 the applicant through his adviser submitted the following material to the Tribunal:
a)written submissions dated 19 July 2007 regarding the issues “that need to be considered by the Tribunal when examining the Applicant’s claims”, including country information;
b)a letter dated 18 July 2007 from Fr. Martin John Low, Chaplin of the Chinese Catholic Pastoral Centre in Haymarket, certifying that the applicant “is an active member of the Sydney Chinese Catholic Community located at Epping”; and
c)a statement from the applicant dated 19 July 2007 setting out, in summary, the following claims:
i)when he was a little boy his parents took him to participate in church activities. It was at this time that the Cultural Revolution started;
ii)on one occasion his parents were dragged from their home by several Red Guards and were forced to participate in a meeting where they were criticised for their mistakes;
iii)at primary school his teacher and class mates often called him names and he was often beaten by others. His mother sought to comfort him by saying that they were all children of God but the applicant did not understand this;
iv)after high school the applicant became an apprentice at a machinery factory and often went to his trainer’s house. Every Sunday several people would gather there and his trainer later told him that they were organising an underground Catholic church. The applicant was quite happy to join them because he came from a Catholic family;
v)he went to the 1989 pro-democracy movement in Tiananmen Square with his trainer and two others and their behaviour attracted the attention of the Communist authorities and the Public Security Office. They were investigated and the applicant was subsequently fined 5000Yuan for illegally organising an underground church and for disturbing the social order. His trainer and the other two members were sentenced to terms of imprisonment;
vi)the applicant could not give up his religion. Within a very short time, he organised several other Catholic church members in his factory;
vii)in 2001 in order to strive for people’s democracy and freedom and to demonstrate their dissatisfaction towards society and to grow their church, they invited a priest name Yong Bo Song to preach for them. Their church grew rapidly to 16 families with 96 members in total;
viii)in August 2005 Yong Bo Song organised some training classes in Catholicism. On the third day of training, Public Security Officers came and surrounded the venue. Intense investigations were conducted and arrests took place everywhere;
ix)on 7 September 2005 the applicant was arrested. While in detention, he was severely tortured and persecuted. After one particular beating he started to experience memory loss and headaches;
x)in December 2005 he was released from detention. He and other church members discussed the possibility of escaping from China; and
xi)when he came to Australia he did not speak English and was not familiar with the local environment. It was only after a lot of effort that he was able to find a Catholic church. This was two months after his arrival and the church was in Chinatown. He has been attending this church every week.
Second Tribunal hearing on 23 July 2007
The applicant appeared before the Tribunal on 23 July 2007 and made the following additional claims:
a)his statement to the Tribunal dated 19 July 2007 was true and accurate;
b)during the Cultural Revolution his parents taught him to read the bible at home when it was midnight and quiet;
c)his parents told him that he was Catholic and that he was baptised when he was young;
d)he was baptised as a child and not in 2001 as he had previously said;
e)the statement accompanying the applicant’s protection visa application was dictated by him to his agent who then wrote down the applicant’s story, but he does not know how the agent wrote this down;
f)he was not truthful at the first Tribunal hearing when he said
i)that he had prepared his protection visa application without assistance; and
ii)that he wrote a statement which was then translated into English by a friend.
He was told to say these things by his migration agent;
g)he did not provide details of his parents’ mistreatment by the Red Guards because the person who helped him asked him not to say too much;
h)he met his church group for the first time on a Sunday while at his teacher’s house and not in his dormitory as claimed at the first Tribunal hearing. He was allowed to join the group after he told them that he had been a Catholic since childhood;
i)his memory has declined because of his persecution and he now has some difficulties with speech and memory;
j)his wife became interested in Catholicism one year after he joined but she does not practice much. She has attended the church at his teacher’ s house;
k)his group went to Tiananmen Square in 1989 and stayed for one day and one night but they were not there when the authorities arrived. He did not include in his protection visa application details of his subsequent fine and his teacher’s imprisonment because he was told not to;
l)between 1987 and 2005 his group continued to hold church gatherings. They did not encounter difficulties with the authorities until 2005 when Yong Bo Soon organised the Catholic training classes;
m)the applicant was arrested while he was working at the machinery factory and not while attending a church gathering. He was held for ten days and then sentenced to three months imprisonment;
n)everything he said at the first hearing he was told to say by the person who assisted him;
o)he did not get medical treatment in China for his memory loss and headaches because his parents asked him not to as they did not want to cause any trouble. His memory loss was not the result of a gassing accident at work;
p)he had no trouble obtaining or organising a visa to Australia;
q)contrary to what was written in his business visa application, he never worked at Henan Wansung Mining Products. He signed the documents but he did not know their contents; and
r)two months after his arrival in Australia the applicant contacted a Catholic church in Epping and a church in the city. He began to attend regularly in about April and attends the Epping church on Saturdays and the Chinatown church on Sundays.
The applicant produced to the Tribunal some additional documentation, including:
a)a letter from Fr. Paschal Chang, Chaplin of the Chinese Catholic Community dated 17 July 2007 stating that the applicant was a member of their community and that he was attending class for adult initiation into the Catholic faith; and
b)a letter from Fr. Martin John Low, Chaplin of the Chinese Catholic Pastoral Centre dated 18 July 2007 certifying that the applicant is an active member of the Sydney Chinese Catholic Community located at Epping.
The applicant was supported by two witnesses at the hearing, each of whom gave evidence relating to the applicant’s church activities in Australia.
Post-hearing
On 22 August 2007 the applicant’s adviser sent a letter to the Tribunal stating that Fr. Low and Fr. Byrne could be contacted for further information relating to, amongst other things, underground Catholic churches and the applicant’s involvement in the Chinese Catholic community in Australia. The letter was received by the Tribunal after it had finalised its decision on 21 August 2007. The decision was recalled so the letter could be taken into account.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and 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:
a)the Tribunal found that the applicant’s evidence with respect to the events in China were not credible, noting that:
i)in his statement to the department the applicant said that when he was a little boy he saw his parents having religious activities but did not know that the activities were Catholic until he grew up, but stated at the second Tribunal hearing that as a child he participated in church activities, was baptized and was told that he was a Catholic;
ii)in his statement to the department the applicant omitted to mention that after he visited Tiananmen Square in 1989 he was investigated by the authorities and fined and that his teacher was sentenced to detention;
iii)in his statement to the department the applicant omitted to mention that he was mistreated and tortured after his arrest in September 2005;
iv)in his statement to the department the applicant said that he spent a large sum of money to get released from detention after three days, but at the second Tribunal hearing he said that he was kept there for ten days and then sentenced. Then he said he served a three month sentence before release;
v)at the first Tribunal hearing the applicant said that he had written the statement accompanying the protection visa application and then had it translated by a friend, but at the second Tribunal hearing the applicant said that he told someone his story and this person wrote it down. At the second Tribunal hearing the applicant agreed that he had lied at the first hearing but said that his agent told him to do so;
vi)at the first Tribunal hearing the applicant said that he was introduced to religious activities as an adult when, after a shift at his factory, people were talking and after they left a friend asked him whether he knew about Catholicism. At the second hearing he said that he was first introduced to Catholicism as an adult when he went to his work teacher’s house and he saw people having Catholic gatherings so he joined in;
vii)at the first hearing he said he was baptized in 2001 but at the second hearing he said that he was baptized as a child;
viii)at the first Tribunal hearing the applicant said he was arrested while having a Catholic gathering, while at the second hearing the applicant stated he was arrested while working at the factory; and
ix)at the first hearing the applicant said that he did not have a good memory because he was gassed by accident at work, but said in his statement to the Tribunal dated 19 July 2007 that he did not have a good memory because he was tortured;
b)given these inconsistencies and omissions, the Tribunal found that the applicant
i)had not been truthful in respect of his claims; and
ii)had changed his story to generate a claim for refugee status;
c)given the applicant’s lucidity in recalling certain events, the Tribunal did not accept that the inconsistencies and omissions could be explained by memory loss, either from a gas accident or from being tortured;
d)for these reasons, the Tribunal did not accept that the applicant:
i)was brought up in a Catholic family and baptized as a child;
ii)was introduced to Catholicism as an adult by his work teacher or that he attended Catholic gatherings at his teacher’s house on Sundays; or
iii)organized Catholic gatherings at the factory;
e)consequently, the Tribunal did not accept that the applicant was arrested for reasons of his religion or that he was mistreated and tortured or sentenced to three months detention;
f)the Tribunal did not accept that the applicant travelled to Tiananmen Square in 1989 to support the pro-democracy movement or that he was arrested and fined on his return;
g)the Tribunal found that at the first Tribunal hearing the applicant’s level of knowledge of the Catholic faith was not commensurate with the knowledge expected of someone who had been brought up in a Catholic household and who had practised in a Catholic underground church;
h)given that the applicant had been in Australia for five months at the time of the first Tribunal hearing and at that stage there was no evidence that he had attended any Catholic church or joined a Catholic community in Australia, the Tribunal did not accept that the applicant attended church until just prior to the first hearing;
i)the Tribunal accepted that the applicant now attended church services and that his knowledge of Catholic principles had improved, however, in light of the inconsistencies and omissions in his various versions of events, the Tribunal found that the applicant had not been truthful and had no commitment to Christianity in China. Consequently, the Tribunal was not satisfied that the applicant engaged in religious activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee and therefore disregarded this conduct in accordance with s.91R(3);
j)the Tribunal found that the applicant would not engage in religious activities in an underground church if he returned to China now or in the reasonably foreseeable future and that there is no real chance that he would suffer serious harm for reasons of his religion or for any other Convention reason;
k)the Tribunal chose not to pursue the applicant’s invitation to contact Fr. Low and Fr. Byrne on the basis that:
i)he provided no further evidence after the hearing notwithstanding an application made by his adviser to provide further statements from members of the church following the hearing;
ii)the Tribunal had taken into account the evidence of the members of the church and the oral evidence of the applicant in relation to his conduct in Australia; and
iii)the Tribunal did not see any need to pursue the invitation as the information provided would not affect the findings and reasons repeated above and, in particular, the finding that the applicant had engaged in religious activities in Australia for the purpose of strengthening his claim to be a refugee.
Proceedings in this Court
The grounds of the application filed on 8 October 2007 were pleaded as follows:
1.Jurisdictional error has bee [sic] made. RRT take the cases which are against me. They did not take the successful case to support me.
2. Procedural fairness has been denied.
3.RRT did not give me letter to explain doubts. They have no much … knowledge about persecution of catholics in China.
Jurisdictional error
The first asserted ground of review contained in the application is unparticularised. It may be interpreted to be either an invitation to review the merits of the application for the protection visa or as a challenge to the Tribunal on the basis of bias.
In respect of the first of these possibilities, a review of the merits of the Tribunal’s decision is not available in proceedings such as these. The assessment of the merits of the application is a task reposed in the Tribunal. The Court’s role is to determine whether the Tribunal followed correct procedure and properly applied the law, it cannot embark on a review of the merits of the visa application and arrive at a conclusion different from that reached by the Tribunal. Consequently, to the extent that this asserted ground of review amounts to an invitation to review the merits of the visa application, it must be unsuccessful.
To the extent that the applicant alleges bias on the part of the Tribunal, it must be noted that no evidence has been adduced in support of such an allegation. In his oral submissions at the hearing, the applicant implied that the Tribunal had rejected the submission which was provided to it by the applicant’s adviser shortly prior to the Tribunal’s hearing, simply because that submission was delivered so close in time to that hearing. A review of the Tribunal’s decision and the relevant passage of the transcript at T40 (a copy of which was annexed to the affidavit of Emily Baggett affirmed 18 March 2008) reveals that the applicant’s understanding of the Tribunal’s attitude to that submission is incorrect. It is clear that the Tribunal queried the contents of the applicant’s statement submitted with those submissions, not because it was submitted close in time to the Tribunal hearing, but because the matters which it canvassed had not been raised at a much earlier time. That is to say, the Tribunal’s concern was with recent invention, not with late filing. Consequently, on the facts, an allegation of bias on the part of the Tribunal cannot be made out whether in terms of actual bias or apprehended bias.
Procedural fairness
No particulars of this allegation have been provided and nothing the applicant said in oral submissions clarified the issue. In the context of hearings by the Tribunal, the natural justice hearing rule has been codified by virtue of s.422B in div.4 of pt.7 of the Act. The principal provisions of that division are ss.424A and 425. Section 424A is discussed below in relation to the third asserted ground of review, where it is found that no breach of that section occurred in the circumstances of this case. As for s.425, the Court Book makes it clear that not only was the applicant invited to the Tribunal hearing, but he attended and brought two witnesses who gave evidence. Nothing has been suggested, and nothing appears from the evidence, which would indicate that the applicant was denied an opportunity to give evidence and present arguments or that any of his s.425 entitlements were compromised.
No other sections of div.4 of pt.7 have been identified by the applicant as having been breached and a review of the Tribunal’s decision does not suggest that any were.
For these reasons, no jurisdictional error is demonstrated by the second asserted ground of review.
Section 424A letter
This asserted ground of review misconceives the Tribunal’s obligations under s.424A(1) of the Act as it applied to these proceedings. As the applicant’s review application to the Tribunal was filed before 29 June 2007 (CB 53), the Migration Amendment (Review Provisions) Act 2007, and the amendments which were affected to s.424A by that amendment, do not apply here. Consequently, the applicable version of s.424A(1) was, at the relevant time:
(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.
That section identifies certain information which must be provided to an applicant. It does not require the Tribunal to identify “doubts”. “Doubts” are not information as that word is understood in the context of s.424A: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [18]. Therefore, the Tribunal was under no obligation to “explain doubts” as asserted by the applicant.
In any event, the Tribunal did serve a s.424A letter on the applicant in connection with the various inconsistencies which the applicant’s different versions of events revealed. By doing so, the Tribunal discharged such obligations as it had under s.424A.
Further evidence
The applicant tendered, subject to a finding of relevance, a document which he expressed to be an arrest warrant in which he and his father were named and which referred to their Christian practices. It appears that the document may have been dated 7 September 2005. The document was in Chinese script and not accompanied by a translation but to the limited extent that it was legible it was orally translated at the hearing by the Court appointed interpreter. The applicant submitted that he had given this document to his adviser but was unsure whether it had been supplied to the Tribunal. He submitted that it demonstrated that his claims of persecution were genuine.
On consideration, I cannot conclude that the document has any relevance to these proceedings. It was not ultimately demonstrated that the document had been supplied to the Tribunal and it was not alleged that any fraud had been committed by the applicant’s adviser in the event that the document had not been submitted to the Tribunal. In the circumstances, the document cannot assist the Court in its consideration of the matters raised for judicial review.
Moreover, the only issue to which the document may go is whether the Tribunal reached a correct conclusion on the merits of the applicant’s application. As merits review is not available in these proceedings, the document can have no relevance to the matters which the Court must consider.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 April 2008
2
1