SZJNZ v Minister for Immigration

[2007] FMCA 1138

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1138

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in taking into account evidence at first Tribunal hearing. 

Migration Act 1958 (Cth) ss.91R, 422, 422A, 424, 424A, 442

SBBS vMinister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 230 ALR 1
SZEPZ vMinister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZGNY vMinister for Immigration & Multicultural Affairs [2006] FMCA 1142
VFAB vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
VGAO of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 68

Applicant: SZJNZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3045 of 2006

Judgment of: Barnes FM

Hearing date: 10 July 2007

Delivered at: Sydney

Delivered on: 10 July 2007

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. That the name of the first respondent be changed to ‘Minister for Immigration & Citizenship’.

2. That the application be dismissed.

3. That the applicant pay the costs of the first respondent fixed in the sum of $3,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3045 of 2006

SZJNZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 14 September 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant is a citizen of the Peoples Republic of China who arrived in Australia in February 2004. He applied for a protection visa in June 2005. The application was refused and he sought review by the Tribunal. The applicant attended a hearing on 3 November 2005 and the Tribunal, as originally constituted, handed down a decision on 19 December 2005 (the first Tribunal decision).

2. The applicant sought review of that decision in this Court. The proceedings were, by consent, remitted to the Tribunal for reconsideration. I am told from the bar table that that was on the basis of an issue in relation to s.424A of the Migration Act 1958 in light of the authority of SZEEU v MIMIA & Anor (2006) 230 ALR 1.

3. The Tribunal (reconstituted by a different Tribunal member) conducted a second hearing on 10 July 2006. In its reasons for decision it rejected the applicant’s claims, in essence on the basis that the applicant was not a credible witness.

4. The applicant had claimed to fear persecution on the basis of his religious beliefs as a Christian. He claimed in a statement accompanying his protection visa application to be a Christian who had participated in activities seeking freedom of religion in China, to have been involved in organising meetings to discuss religious belief with friends and relatives and to have “discussed bibles” at their homes. He claimed that in October 2002 police came to arrest believers during one of these home meetings and that he was detained and suffered mental and physical torment from the authorities.

5. He claimed that on his release he tried to escape but could not leave China until December 2003 having to pay a large sum of money to officials to keep himself safe. He travelled to the Federated States of Micronesia and claimed that as he could not get protection there he came to Australia and that he was not initially aware that he could apply for a protection visa in Australia.

6. In its reasons for decision the Tribunal summarised the claims made in the application for a protection visa and the oral evidence which the applicant had provided to the first constituted Tribunal. The Tribunal member had listened to the tape of the first hearing. The Tribunal accepted that a summary in the first Tribunal decision was an accurate summary of the essential matters discussed at that hearing. It also set out the applicant’s claims at the second Tribunal hearing in detail.

7. The Tribunal referred to the fact that it had written to the applicant under ss.424 and 424A of the Migration Act 1958 (Cth) requesting further information and inviting his comment on certain information, in particular, certain information in his protection visa application. The Tribunal recorded that it had received a letter from the applicant requesting a longer time to submit the required information and stating that the applicant would bring documents and information on the hearing day.

8. The Tribunal responded to that letter indicating that it had not granted an extension of time but also that the member had confirmed that he would not make a decision before the hearing. The applicant attended the Tribunal hearing. The Tribunal recorded that he provided a copy of his passport and a letter (which was not on letterhead) from Pastor Wong of an organisation in Victoria said to be associated with the Chinese Methodist Church in Australia. The Tribunal recorded that the applicant also advised that he did not have any further material or responses in relation to the s.424 and the s.424A letters. The Tribunal recorded a subsequent telephone conversation with Pastor Wong.

9. However, the Tribunal found, for the reasons that it gave, that it was unable to accept any of the applicant’s claims. It referred to a number of factors in support of this conclusion, in particular inconsistencies between the evidence of the applicant at the first hearing and at the second hearing and also internal inconsistencies in the evidence given at the second Tribunal hearing. It also had regard to what described as the basic or limited understanding of his faith demonstrated by the applicant and his inability (at either of the hearings) to give the name of the church he claimed to have attended in Sydney. The Tribunal found the applicant’s answers as to how often his parents attended meetings were internally inconsistent at the first hearing as were his own answers in that respect. It also found his evidence as to when he was baptised and practised Christianity and how often he attended meetings to be inconsistent.

10. The Tribunal described the lack of knowledge that the applicant had in relation to particular issues about Christianity which the Tribunal had raised with him at the hearing.  It had regard to his explanation for his lack of knowledge, but rejected the explanation that he had only believed in the Lord for a short time and/or did not understand the teachings, as he was unable to answer fundamental questions relating to Christianity despite the fact that “he did not appear to be uneducated or intellectually slow” and had had a considerable time to pursue the gaining of knowledge in that area. 

11. The Tribunal also found that the applicant did not show dedication to the practice of his religion. The Tribunal did not take issue with the applicant’s claims in relation to occasional attendance at a church in Victoria consistent with the evidence of Pastor Wong. It accepted that the letter provided by the applicant from Pastor Wong and Pastor Wong’s evidence supported these claims insofar as the applicant attended services at a particular church in Victoria sporadically. However it found the applicant’s evidence as to where he had lived since coming to Australia and how often he returned to Victoria to be inconsistent with the evidence he gave to the first Tribunal.

12. The Tribunal had regard to the fact that the applicant had not been able to name the church he said he attended in Sydney. It did not accept he was guided there by a friend and that that was why he could not remember the street address. It noted that this issue had also been raised at the first Tribunal hearing and that despite being requested to do so, the applicant did not provide any evidence that he attended a church in Sydney.

13. It found that the applicant had not attended a church in Sydney. The Tribunal concluded that having regard to the applicant’s lack of knowledge of Christianity, the inconsistencies in his evidence, the lack of commitment to his faith which it found to be evidenced by sporadic attendances at a church in another state, and its finding that the applicant was not a credible witness, the applicant was not a Christian in the Peoples Republic of China.

14. The Tribunal also addressed the applicant’s activities in Australia, consistent with s.91R of the Migration Act. It found that he had made some attempts in Australia to create a sur plus claim as a Christian. It found that his lack of commitment and knowledge indicated that he was not a genuine Christian believer and it so found. The Tribunal stated that accordingly it had disregarded the applicant’s conduct in this regard, pursuant to s.91R(3) of the Migration Act.

15. The Tribunal concluded that for the reasons given the applicant was not a Christian and had never been a Christian and that his “claims of participating in activities seeking freedom of religion in PRC, participating in underground church activities, being arrested, detained, searched for by the police and avoiding detection and escaping from the PRC” were not plausible. The Tribunal did not accept these claims. Hence it was not satisfied that the applicant faced a real chance of persecution should he return to the Peoples Republic of China now or in the foreseeable future.

16. The applicant sought review of the Tribunal decision by application filed in this Court on 19 October 2006. He relies on an amended application filed on 22 March 2007. He did not file written submissions but in the hearing today was given an opportunity to address his claims and to further particularise the grounds relied on in the amended application. However the applicant’s complaint about the Tribunal decision, as presented in oral submissions, was that the Tribunal did not believe that he was a Christian and that it did not have reasons to say that he was not a Christian. Such claims seek impermissible merits review. The credibility of the applicant is a matter for the Tribunal. Its findings were open to it on the material before it for the reasons it gave.

17. The first ground in the amended application is that:

    The Tribunal relied on some information for the consideration of my application. The Tribunal had bias against me and did not consider my application for a protection visa in accordance with section 91R of the Migration Act 1958.

18. The applicant has not provided any particulars or evidence in support of this ground. He did not explain what the information was that he referred to or elaborate on the claim of bias or failure to comply with s.91R.

19. First, in relation to the claim of bias, it is clear that this is a serious allegation involving personal fault on the part of the decision-maker which must be clearly proved by evidence. In this case the only material before the Court in relation to the conduct of the hearing consists of the Tribunal reasons for decision. Neither actual or apparent bias is established on the material before the Court (see SBBS vMIMIA (2002) 194 ALR 749 and VFAB vMIMIA (2003) 131 FCR 102).

20. In relation to s.91R, the legal representative for the first respondent addressed the possibility that this ground sought to take issue with the manner in which the Tribunal addressed s.91R(3) of the Act. As was submitted for the first respondent, while the Tribunal did not make an express finding that the applicant’s sole purpose was for the purpose of strengthening his claim to be a refugee, that is implicit in the Tribunal’s finding that the applicant was not a genuine Christian believer. On that basis, whatever the interpretation of s.91R(3), it has not been established that there is any jurisdictional error in the manner in which the Tribunal interpreted or applied that provision in disregarding the applicant’s conduct in Australia pursuant to s.91R(3).

21. The second ground relied on in the amended application is:

    The Tribunal failed to make a decision on my application with a rational and logical foundation.  The decision was made by assumption of the officer not evidence.

22. The applicant had nothing to add to this ground in oral submissions. There is nothing in the material before the Court to establish that the decision lacked rationality or logicality, let alone that it did so in a manner constituting jurisdictional error. In particular, while the applicant initially appeared to claim that the Tribunal did not consider part of his claims, he was not able to identify any particular claims that were not considered. Nor is it apparent on the material before the Court that the Tribunal failed to have regard to any of the applicant’s claims.

23. It is the case that the Tribunal did not believe the applicant’s claims.  However, as indicated, credibility is a matter for the decision-maker and the Tribunal’s findings in that respect were open to it on the material before it.  There is nothing in the material before the Court to reveal a failure to complete the jurisdictional task of the Tribunal in the manner considered by the Full Court of the Federal Court in VGAO of 2002 vMIMIA (2003) FCAFC 68 at [56].

24. The third ground in the amended application is that:

    The Tribunal referred to some irrelevant information for the consideration of my application.

25. When asked what this irrelevant information was, the applicant’s response was that the Tribunal did not have reasons to say that he was not a Christian.  Again, this takes issue with the credibility findings of the Tribunal.  It does not establish a jurisdictional error or a failure to have regard to relevant information or having regard to irrelevant information in a manner constituting jurisdictional error.

26. Another issue addressed by the legal representative for the first respondent in oral submissions related to the Tribunal’s reliance on evidence given by the applicant in the first Tribunal hearing, although this was not a matter with which the applicant appeared to take issue in his amended application. In that respect I am satisfied that, as discussed by Smith FM in SZGNY vMIMA [2006] FMCA 1142 at [15] to [25], no jurisdictional error is established from the fact that the Tribunal referred to and took into account the evidence given by the applicant at the first Tribunal hearing. In that respect I note the operation of ss.421 to 422A of the Migration Act 1958 (Cth) and what the Full Court of the Federal Court said in relation to those provisions in SZEPZ vMIMA [2006] FCAFC 107 at [39]. In this case no issue arises as to ss.424 or 424A notice given by the Tribunal as first constituted on which the second Tribunal sought to rely. Any shortcomings in that respect on the part of the Tribunal as originally constituted were addressed by the second Tribunal writing to the applicant under s.424 and 424A on 13 June 2006. In particular, the s.424A letter referred to the applicant’s claims in his protection visa application and the issues that arose and invited the applicant’s comment on those matters.

27. Further, while the Tribunal referred to the hearing of the first Tribunal, it not only had the summary of that hearing as set out in the decision of the first Tribunal, it also recorded that it had listened to the tape of the hearing. On that basis the Tribunal accepted that the summary of the earlier hearing prepared by the previous Tribunal was an accurate summary of the essential matters discussed at that hearing. The Full Court stated in SZEPZ that the review being conducted by a reconstituted Tribunal is nonetheless the same review initially initiated by the application for review by the Tribunal of the decision of the delegate not to grant the applicant a protection visa (see SZEPZ at [39]). As their Honours stated:

    In any event, when ss.421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.

28. On that basis it was open to the Tribunal to take into account the evidence given by the applicant at the first Tribunal hearing. I also note that this is not a case in which it could be argued, as in SZGNY, that the Tribunal had relied upon the findings of the first Tribunal. Rather, it is clear from the reasons for decision that the Tribunal had regard to the evidence given to the previous Tribunal. In having regard to that material it made no jurisdictional error either by taking into account irrelevant information as suggested in ground 3 of the amended application or in any other way. (Also see ss.422(2) and 422A(3) of the Migration Act).

29. Finally, as indicated above, the applicant’s concern that the Tribunal did not believe that he was a Christian and his request that the Court reconsider his application does not establish a jurisdictional error. Merits review is not available in this Court. As no jurisdictional error in the decision or procedures of the Tribunal has been established, the application must be dismissed. Before I make the order, I will hear submissions in relation to costs.

RECORDED    :    NOT TRANSCRIBED

1. The first respondent seeks costs in the sum of $3400.  The applicant states that he does not have that much money at the moment.  However the applicant’s lack of present funds is not a reason for not awarding costs or not awarding the amount sought, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  I consider that the amount 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:  18 July 2007