SZJMO v Minister for Immigration - [2008] FMCA 648

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJMO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 648

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was affected by bias – whether the Refugee Review Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
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
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Ors (1985) 162 CLR 24

Applicant:

SZJMO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 57 of 2008

Judgment of:

Emmett FM

Hearing date:

19 May 2008

Date of last submission:

19 May 2008

Delivered at:

Sydney

Delivered on:

19 May 2008

REPRESENTATION

Applicant appeared in person with a Mandarin interpreter

Counsel for the Respondent:

Ms K. Morgan

Solicitors for the Respondent:

Ms B. Anniwell, Australian Government Solicitors

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 57 of 2008

SZJMO

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 29 November 2007 and handed down on 11 November 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and a mother of two children (“the Applicant”).
The Applicant arrived in Australia on 15 August 2004 having departed legally from Shenzhen on a passport issued in her own name and a visitor visa issued on 15 November 2004. In her application for her visitor visa in July 2004 the Applicant claimed she was engaged to an Australian citizen living in China. This application included supporting letters from her fiancé and her fiancé’s brother. The application claimed the Applicant was unemployed, had been refused a visitor visa previously and also that she was unmarried and had no children.
On 28 September 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by the Chinese authorities by reason of her having more than one child in contravention of the government’s ‘one child policy’ and by reason of her activities as a Christian in an underground church.
The Applicant claimed that when she reported the birth of her second child to the ‘birth control office’, she was “immediately thrown into a small and dark room” and detained for nine days until her family paid RMB 10,000 yuan as penalty. The Applicant claimed during her detention she was questioned and mistreated.
The Applicant claimed she later became suicidal with stress due to financial hardship and was introduced to Christianity by Ms H- who introduced her to an underground church in 2000 that assisted her financially. The Applicant claimed she regularly visited gatherings at Ms H-’s home and later began her own bible study group twice a week at Ms H-’s house. The Applicant claimed that in May 2001 as she “spread the Gospel together with other two (2) religious brothers at Mr [S-]’s home” they were reported, resulting in interrogation by the Public Security Bureau (“the PSB”) and overnight detention.
The Applicant claimed in January 2002 she and four other Christians published religious propaganda material, were discovered and again interrogated by the PSB.
The Applicant claimed that on 8 May 2003, at a religious gathering at Ms [L-]’s house, three PSB officers denounced her and her fellows as having an “illegal and anti-government religious gathering”, after which further officials came to the house and the Applicant was detained for two months and required to report to the police monthly thereafter.
The Applicant claimed she worked secretly producing religious propaganda in a paper factory from January 2004. The Applicant claimed that, when the factory came under investigation by the PSB, the Applicant fled China on 14 August 2004 and arrived in Australia the following day.
On 14 December 2004, 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 Delegate found the ‘one child policy’ of China is a law of general application and therefore did not amount to persecution for a Convention-related reason. The Delegate found the Applicant’s claims in relation to her religious beliefs to be “extremely vague” and inconsistent. The Delegate found that
“independent country information from a wide range of sources indicates that Christians in China are able to freely follow their religion as long as it is not used as a platform to attack the Chinese Communist Party”.
On 13 January 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. In support of the review application, the Applicant provided a letter containing submissions dated 12 January 2005; untranslated excerpts from Chinese publications; a letter of support from Padstow Chinese Congregational Church dated 28 March 2005; and oral submissions at a hearing before the First Tribunal on 4 May 2005.
On 13 April 2005, the Refugee Review Tribunal affirmed the decision of the Delegate (“the First Tribunal”).
On 11 April 2006, by consent, Lloyd-Jones FM remitted the decision of the First Tribunal to the Refugee Review Tribunal for determination according to law.
The Applicant provided to the Refugee Review Tribunal, differently constituted (“the Second Tribunal”), a statutory declaration dated 15 August 2006; oral submissions on 21 August 2006; a copy of her passport; photographs; untranslated documents in Chinese; a translated Corporation Business License; a translated summons of Fuqing City Public Security Bureau dated 3 September 2004; a translated ‘List of Articles Taken & Kept in Police Custody’ dated 3 September 2004; a letter of support from Reverend Dominic Ku of Padstow Chinese Congregational Church dated 20 August 2006; and, a translated receipt for payment for the Applicant’s illegal birthing dated 23 February 2001.
On 22 August 2006, the Second Tribunal affirmed the decision of the Delegate.
On 17 August 2006, by consent, Lloyd-Jones FM again remitted the decision of the Second Tribunal to the Refugee Review Tribunal for determination according to law.
The Applicant provided to the Refugee Review Tribunal, differently constituted, (“the Tribunal”) a letter of support from Reverend Dominic Ku of the Padstow Chinese Congregational Church, dated 30 September 2007, and oral evidence at a hearing before the Tribunal on 5 October 2007.
On 29 November 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 8 January 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 29 November 2007.

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 12 April 2005, the Applicant gave evidence at the hearing before the First Tribunal. The First Tribunal discussed with the Applicant: her children; her visitor visa application and the inconsistent claims made in it; her claimed employment in the paper factory; her claims regarding the ‘one child policy’; her Christian beliefs and how she came to have them; her attendance at an underground church; her knowledge of Christianity; her education and employment history; her travel documents; her detention; other claimed persecution by the Chinese authorities; and, her church attendance and religious activities in Australia.
On 21 August 2006, the Applicant gave evidence at the hearing before the Second Tribunal. The Second Tribunal discussed with the Applicant her claims; independent country information; inconsistencies between her evidence and independent country information; and, internal inconsistencies in the Applicant’s claims and evidence. The Second Tribunal discussed with the Applicant documentation submitted to the Second Tribunal and heard evidence from a witness at the hearing on 21 August 2006.
On 31 August 2007 the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 5 October 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence. It is the decision of that Tribunal that is the subject of the present proceeding before this Court.
The decision of the Tribunal is accurately summarised by counsel for the first respondent in her written submissions as follows:
“12. The Tribunal accepted that:[1]
[1] RD 180.5
a) the applicant came from Fujian province;
b) the applicant was a Christian and that beginning in around 2000 she attended an unregistered church in the PRC;
c) from January 2001 the applicant organised a bible study group which met on Tuesdays and Sundays in the PRC; and
d) that since arriving in Australia the applicant had been attending the Padstow Chinese Congregational Church.
13. The Tribunal did not accept that the applicant was repeatedly interrogated and detained for her involvement in the unregistered church.[2] The Tribunal considered, in the light of the independent material, that if the applicant returned to her hometown she would be able to continue to practice her religion without fear of being persecuted for that reason.[3] The Tribunal also found that the applicant would be able to continue to encourage other people to become involved in religious activities.[4]
[2] RD 181.2
[3] RD 182.7
[4] RD 182.8
14. The Tribunal did not accept that:
a) the applicant was in charge of a paper factory that secretly printed out religious material;
b) the factory was under investigation by the PSB;
c) it was seized and closed in 2004;
d) that the applicant was questioned for a day at that time; or
e) that, since leaving the PRC, the applicant is wanted by the PBS because she is the “main leader” of the factory.[6] The Tribunal found that the summons, “List of Articles Taken & Kept in Police Custody” and the business licence produced by the applicant to the Second Tribunal were not genuine documents.[7]
15. The Tribunal did not accept that the applicant had been of interest to the Chinese authorities by reason of her involvement in religious activities.[8] Further, the Tribunal did not accept that there was a real chance that she would be persecuted for reasons of any political opinion imputed to her on account of her involvement in an unregistered church.
16. The Tribunal also considered the applicant’s claims in relation to the One Child Policy and accepted: that the applicant was detained for nine days after the birth of her second child and had to pay the fine;[10] and that the applicant had to pay the penalty for the third child. However, as the applicant was not treated differently to anyone who had broken the family planning regulations in the PRC and the penalties that she had to pay were imposed because she had breached a law of general application in the PRC, the Tribunal was not satisfied that the applicant had been singled out or treated differently for a Convention reason[11] (including any real or imputed political opinion opposing the One Child Policy[12] or membership of any particular social group arising from her breach of the regulations[13]).
17. Thus, the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if she returned to the PRC now or in the reasonably foreseeable future.”
[6] RD 182.5
[7] RD182.6
[8] RD 182.7
[10] RD 183.2
[11] RD 183.6
[12] RD 183.6
[13] RD 183.6

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. The Applicant has participated in the Panel Advice Scheme.
The Applicant confirmed that she relied on the grounds contained in an application filed on 8 January 2008.
The grounds of the Applicant’s application make bare assertions of error accompanied by particulars that essentially appear to cavil with: (i) the use made by the Tribunal of independent country information and its failure to provide such information to the Applicant for comment; and, (ii) the use made by the Tribunal of evidence from the Applicant that it found to be inconsistent and the Tribunal’s failure to give those inconsistencies to the Applicant for comment.
The Applicant was invited by the Court to make submissions in support of her application for judicial review.
The Applicant stated that the Tribunal made assumptions without any basis in that the Tribunal ignored the fact that the Applicant had left China more than four years ago; that the Applicant did not have relatives in her hometown because they had escaped or run away; that the Tribunal assumed the Applicant could return to her hometown; that the Tribunal assumed that the Applicant would wish to remain in her hometown; and that the Tribunal did not discuss with her whether or not she could continue to live in her hometown.
A fair reading of the Tribunal’s decision makes clear that the Tribunal accepted the Applicant’s claims of being a Christian in China prior to her arrival in Australia; that she came from the Fujian province; and that in 2000 she began attending gatherings of an underground or an unregistered church in China. The Tribunal also accepted that the Applicant organised a bible study group in January 2001 in China and has continued to practice her Christianity in Australia, attending the Padstow Chinese Congregational Church.
However, the Tribunal found that independent country information before it indicated that “there is a high degree of religious tolerance in Fujian” and that unregistered churches are “generally tolerated” in Fujian, including bible schools.
The Tribunal rejected the Applicant’s claims of having been detained in China by reason of her underground church religious activities, for spreading the gospel, or, for distributing religious propaganda materials.
The Tribunal also rejected the Applicant’s claim of having been persecuted by the government in China because she had printed and promoted religious materials at a paper factory where she worked. In making that finding the Tribunal had regard to inconsistent and conflicting evidence given by the Applicant before this Tribunal, the First Tribunal and the Second Tribunal.
The Tribunal found that, if the Applicant were to return to Fujian now or in the reasonably foreseeable future, she would be able to continue to practise her religion and did not therefore have a well-founded fear of persecution for that reason.
In relation to the Applicant’s claim of a fear of persecution by reason of China’s one child policy, the Tribunal found that the Applicant, in accordance with her own evidence, had not been singled out or treated differently from anyone else who had breached the Family Planning Regulations in China.
These findings were open to the Tribunal on the evidence and material before it and for which it provided reasons, including the Tribunal’s adverse credibility findings.
In relation to the Applicant’s complaint to this Court that the Tribunal did not discuss with her whether or not she wished to live in Fujian, if she were to return to China, a fair reading of the Tribunal’s decision does not disclose that the Applicant ever raised with the Tribunal a desire to leave the Fujian province, if she were to return to China. In the circumstances, the Tribunal was entitled to consider whether or not the Applicant had a well-founded fear of persecution for a Convention-related reason now or in the reasonable foreseeable future if she were to return to her hometown in the Fujian province.
Further, the Tribunal rejected the Applicant’s claims of past persecution for a Convention-related reason. In the circumstances, it was not necessary for the Tribunal to consider the issue of relocation (Minister for Immigration and Indigenous Affairs v Rajalingam (1999) 93 FCR 220 at 241).
At the heart of the Applicant’s complaints to this Court is her disagreement with the adverse credibility findings of the Tribunal and its use of independent country information in making those findings.
As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The Tribunal was not obliged to give to the Applicant independent country information that was inconsistent with the Applicant’s claims and evidence for comment pursuant to s.424A of the Act, by reason of s.424A(3)(a) of the Act.
Further, the two issues which caused the Delegate to refuse the Applicant protection were (i) the independent country information before it that was inconsistent with the Applicant’s claims, and, (ii) the failure of the Applicant to satisfy the Delegate of the veracity of her claims given “the extremely vague nature of such claims” and the “significant inconsistencies in the applicant’s claims.”
In the circumstances, the Applicant must be taken to have been aware of the issues relating to the independent country information and her credibility as issues arising in relation to the decision under review. Such information does not enliven the obligations of s.424A(1) of the Act (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63).

In relation to the Tribunal’s adverse credibility findings based on inconsistencies in the Applicant’s evidence, such inconsistencies are the result of the Tribunal’s thought processes. The evaluation and assessment of these inconsistencies in the Applicant’s evidence do not enliven the obligations of s.424A (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]-[18]).
In the Applicant’s grounds of her application, she also alleges that the Tribunal’s decision “included a reasonable apprehension of bias”. That allegation was not accompanied by evidence, particulars or submissions.
To the extent that a fair reading of the Applicant’s application may suggest that such allegation is based on the Tribunal’s use of independent country information that formed part of its reason for rejecting the Applicant’s claims, a reasonable apprehension of bias is not made out.
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task with a mind not open to persuasion.
The Tribunal identified with particularity all of the Applicant’s claims and supporting material before the Tribunal, the First Tribunal and the Second Tribunal and her claims, both written and oral; considered all evidence and material provided by the Applicant in support of her claims; explored the Applicant’s claims with her at a hearing; noted exchanges it had with the Applicant about matters of concern to the Tribunal; put to the Applicant the nature of independent country information that did not support the Applicant’s claims; put to the Applicant inconsistencies in her own evidence; made findings based on the evidence and material before it; and, applied the correct law to its findings in reaching its conclusion that it was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention.
To the extent that the Applicant’s grounds appear to contend that the Tribunal did not conduct its review in accordance with substantial justice, such a contention is not made out.
Otherwise the Applicant’s complaints to this Court are no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite 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; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Ors (1985) 162 CLR 24 at 41per Mason J).
Accordingly, the grounds of the application are not made out.

Conclusion

In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 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: 19 May 2008

[5] RD 182.5

[9] RD 182.8