SZJRU v Minister for Immigration
[2008] FMCA 168
•21 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJRU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 168 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJRU”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A |
| NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | SZJRU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3347 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Fujian interpreter |
| Counsel for the Respondents: | Mr J Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 15 November 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3347 of 2006
| SZJRU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant was born in 1962, is a citizen of the People’s Republic of China and grew up in the Fuijian province. She claims that she is a Christian. The applicant married in 1987 and separated in 1997. She claims that she had two children and then fell pregnant for the third time in 1996 but was detained and forced to have an abortion. The applicant claims that she was persecuted by Chinese authorities because she is female and a Christian, that she had a third pregnancy and because of her father’s previous political activities.
The applicant arrived in Australia on 12 October 1998 on a passport in someone else’s name. She was detained on 1 October 2004 by the Department of Immigration and applied for a Protection (“Class XA”) visa on 30 November 2004. A delegate of the first respondent refused to grant the visa and the Refugee Review Tribunal (“Tribunal”) affirmed the delegate’s decision on 22 April 2005. This decision was remitted back to the Tribunal by the Federal Magistrates Court on 20 July 2005. The second Tribunal affirmed the first Tribunal’s decision and, again on 6 April 2006, the Federal Magistrates Court remitted the matter back to the Tribunal to be determined according to law. The third Tribunal affirmed the decision not to grant a protection visa (reference number 060341569) which is the decision that is the subject of these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
The amended application filed on 9 January 2007 contains one ground of review supported by particulars:
1. The Tribunal fell into jurisdictional error by acting contrary to s.424A of the Migration Act 1958 in failing to provide the applicant with particulars of the information that was a reason, or part of a reason, for affirming the decision under review.
Particulars of information:
Information concerning the date of the application made by the applicant for a protection visa.
Consideration
At the first Court date, the applicant indicated that she wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The applicant was allocated a panel advisor. She subsequently attended a conference with that advisor and received advice. The applicant was ordered to file and serve a short written outline of submissions and list of any authorities prior to the hearing but this was not complied with. When invited to make oral submissions, she indicated that she did not understand the ground of the amended application which had been settled by Mark Seymour of counsel.
Mr Potts, for the first respondent, assisted the Court in the preparation of an effective summary of the steps taken by the Tribunal leading up to its decision and the salient points of that decision. I have reviewed that summary in light of the content of the Court Book and the decision and substantially adopt that summary to establish the context of the ground of review in these proceedings.
On 11 August 2006, the applicant attended a hearing constituted by Tribunal member Phillipa McIntosh. After the hearing and on 14 August 2006, the Tribunal wrote to the applicant’s solicitor, Farid Varess, identifying country information referred to during the hearing. On the same date an “Invitation to Comment on Information” letter pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”) was forwarded to Mr Varess and addressed to the applicant, particularising the following information and inviting comment:
You arrived in Australia on 12 October 1998. You did not apply for a protection visa until over six years later, having been detained two months earlier by the Department of Immigration & Multicultural Affairs.
This is relevant to your application because the Tribunal could infer from this long delay that you did not fear any serious harm in China.
You have claimed that you were a practicing Christian for many years in China, but only attended church on one occasion during your first six years here.
This is relevant to your application because the Tribunal could infer from your failure to attend church for so long that you were not a member of a house church in China. The Tribunal could therefore also infer that the letter from Kai Wang in China makes reference to your past religious activities are unreliable as sources of evidence. The Tribunal may infer that the religious activities you commenced in 2004 while in detention were done solely for the purpose of strengthening your application for a protection visa. (CB 327)
Mr Varess responded by forwarding a 38 page facsimile dated 23 August 2006 (CB 330-367). Two further facsimiles were sent by the applicant’s solicitors on 29 August 2006 (CB 372-375; 376-378). The Tribunal decision was signed on 5 October 2006 and handed down on 26 October 2006.
The Tribunal reached the following conclusions in its “Findings and Reasons”:
a)Religious activities in question
The Tribunal was satisfied that the applicant attended a local house church “now and then” in her home village. The applicant made no attempt to exaggerate the extent of her religious activities in China. Her limited religious activities while in China were consistent with her later non-attendance of church in Australia, with the exception of one visit in her first six years here. Attendance at the house church in her village was due to her siblings’ attendance rather than to her affiliation with the church, its teachings or the Christian religion generally. On her own admission, if her siblings had attended a church registered with the authorities, she would have done the same. The Tribunal did not accept the applicant’s explanation that her limited church attendance in Australia was due to her fear of its consequences. Rather, it illustrated that the applicant did not regard herself as a practicing Christian. The Tribunal’s view was also borne of the fact that she did not apply for a protection visa until over six years after arriving in Australia and then only after she had been detained two months earlier. The delay indicated that she was not sufficiently concerned about being denied her right to practice her religion in China and that she sought advice about how to stay in Australia when she could not do so legally.
b)Attending Christian services in Villawood detention
The Tribunal accepted that the applicant may have participated in some religious activities with Christian groups while in detention in October 2004. As it found she was not a practicing Christian before 2004, the Tribunal inferred that the religious activities commenced while in detention were for the sole purpose of strengthening her application for a protection visa. Therefore s.91R(3) of the Act applied and the Tribunal disregarded that conduct in considering her other claims.
c)Attending Christian services in China
If the applicant wished, the Tribunal was satisfied that she could and would have attended an official church in Fujian province as a number were available. The Tribunal was satisfied that Christians who attended churches registered with the Chinese authorities were not subject to persecution for reason of their religion.
d)Third pregnancy
The Tribunal accepted that the applicant had two daughters and, that when she fell pregnant for the third time, she was forced by family planning authorities to have that pregnancy terminated. While noting that it was plainly very distressing and against her will, the applicant did not claim, and there was no evidence to the contrary, that the termination was anything more than an enforcement of family planning regulations as they were interpreted at that time. The termination was also not for any of the reasons set out in the Refugees Convention.
e)Sterilisation
The applicant claims that she was ordered to be sterilised, and that if she refused, she and her husband would have to pay a 40,000 yuan fine. She claims her second daughter was refused household registration until the applicant underwent sterilisation. The Tribunal accepted that the applicant did not undergo the sterilisation and did not pay the fine. The Tribunal considered it highly unlikely, given the applicant’s age and the fact that the local community was aware that she had permanently separated from her husband, that local family officials would force her to be sterilised. Given the passage of time it was also unlikely that she would be obliged to pay the fine. The Tribunal accepted that forced sterilisation, whether accompanied by a large fine or not, might amount to persecution if imposed for a Convention reason. However, it was not satisfied that the motivation for the initial fine and enforced sterilisation could be for a Convention ground. The Tribunal ultimately was satisfied that any remaining risk of sterilisation and/or having to pay the outstanding fine arose from the non-discriminatory enforcement of a penalty for contravention of a general law in China.
f)Asylum application
The Tribunal did not accept that the applicant had grounds to fear penalty because Chinese authorities might know of her application for asylum in Australia.
g)Harm by her family
The Tribunal did not accept that the applicant’s husband or her family would harm her if she returned to China. However, even if they were to do so, the Tribunal could not be satisfied it would amount to persecution, nor that there might be a Convention reason for it.
h)Sister takes her own life
The Tribunal accepted that the applicant’s sister had taken her own life and may have been detained and seriously harmed by local police because of her active involvement in an unofficial church. However in the applicant’s case, her religious activities had been so different that the Tribunal was not satisfied that she would suffer from a well-founded fear of religiously motivated persecution.
The Tribunal noted that it had considered whether, taken cumulatively, the applicant’s circumstances might give rise to a well founded fear of Convention related persecution. It was not satisfied that they did.
Ground of review – s.424A of the Act
Mr Potts directed the Court’s attention to the following evidence contained in the Court Book:
i)The applicant gave the following instructions Mr Varess in a letter:
The day before I put forward a protection visa application formally, on October 9 2004, I called my mother, she cried to me that local police caught my elder sister because she did not give up the Christianity faith. (CB 181)
That date is wrong as the protection visa application was forwarded by Mr Varess and received by the Department on 30 November 2004. However, the applicant was endeavouring through Mr Varess to put forward that information to the Tribunal.
ii)In the second Tribunal’s decision under the sub-heading “Evidence at hearing” the following appears:
The applicant remembers that she applied for a protection visa in November 2004. She states that she completed the application with the assistance of her advisor at the time. Her advisor asked her questions and she supplied the answers. (CB 267)
iii)In the “Invitation to Comment on Information” letter issued under s.424A, the Tribunal enquired about the following information:
Your arrival in Australia 12 October 1999. You did not apply for a protection visa until over six years later, having been detained two months earlier by the Department of Immigration & Multicultural Affairs.
This is relevant to your application because the Tribunal could infer from this long delay that you did not fear any serious harm in China.
You have claimed you were a practicing Christian for many years in China, but only attended church on one occasion during your first six years here. (CB 327)
iv)In the response prepared for the application by Mr Varess, the following information appears:
1. Delay in applying for a protection visa
…the fact that the applicant applied for a protection visa only after being detained is congruent with the applicant’s evidence that prior to that time she was unaware of her right to apply for such a visa.
The Applicant’s ignorance in this regard is also congruent with and, in part, caused by) the fact that she is illiterate.
A lack of awareness of Australia’s refugee laws and the opportunity to apply for a protection visa is not necessarily an indication that one does not fear serious harm. (CB 330)
v)The third Tribunal decision under “Claims and Evidence” states:
[SZJRU] gave evidence at a hearing of the second Tribunal held on 31 August 2005. She confirmed the details in her protection visa application, saying she completed with the assistance of her agent at the time. He asked her questions and she supplied the answers. She told him about her claims. (CB 396)
vi)The Tribunal then recorded the following evidence given by the applicant at the hearing of 11 August 2006:
I asked her how long she had been in Australia before she was taken to the detention centre in Villawood. She stated she had come to Australia in 1998 and confirmed that it was six years before she was detained. (CB 404)
vii)Further evidence given by the applicant during the hearing includes:
I asked her why she had not mentioned her sister’s arrest in the statutory declaration she had given to the Department on 29 November 2004. She noted that her sister had not been arrested. I reminded her that she had written to Mr Varess that her sister had been arrested and put to her that, if so, it would have been at the forefront of her mind – I would have expected her to mention it in her statutory declaration to the Department. She responded that her sister had not been arrested until December. (CB 405)
The Tribunal’s “Findings and Reasons” records the following:
This is brought out by the fact that she did not apply for a protection visa until six years after arriving in Australia and even then only after having been detained two months earlier, a delay which indicates that she was not sufficiently concerned about being denied the right to practice her religion in China that she sought advice about how to stay in Australia, where she could do so legally. (CB 417.4)
[SZJRU’s] application for a protection visa was lodged in November 2004, while she was in detention (CB 417.7)
Mr Potts submits that there are three primary reasons that the applicant’s s.424A claim fails, based on fact that the date of the protection visa application is not part of the decision in a s.424A sense. Those reasons are:
a)the date of the protection visa application is not part of the reasons in a s.424A sense (“date of the protection visa application”);
b)the information given by the applicant falls within the exception in s.424A(3)(b) (“information given by the applicant”);
c)if (a) or (b) above are wrong, there was compliance because the issue was given in the s.424A letter issued on 14 August 2006 (CB 327-8) (“compliance”);
Date of protection visa application
Mr Potts referred to SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 as a starting point for analysing s.424A. The High Court in that case at [18] rejected the contention that “information” has a broad meaning and encompasses things like inconsistencies and underlying information:
…broadly “information” be defined, its meaning in this context is relating to the existence of evidentiary material or documentation, not the existence of doubt, inconsistencies or the absence of evidence.
Mr Potts concedes that in this case, the date of the protection visa application is capable of being “information”: NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195.
Mr Potts submits that the relevance of that case for the present case is found in SZBYR at [17] where Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:
The “reason, or part of the reason, for affirming the decision that is under review” was therefore that the applicants were not persons to whom Australia owed a protection obligation under the convention. When viewed in that light, it was difficult to see why the relevant passage in the applicant’s statutory declaration would itself be “information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the applicant’s claim to be a person to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
Mr Potts submits that while SZBYR does not overrule SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, it does narrow the concept of what is “part of the reason” in two ways:
a)it focuses on the statutory criteria by which one gauges whether or not an applicant is entitled to a visa and in this case draws from s.36(2) of the Act;
b)it requires a degree of directness for the Minister or the Tribunal to rely on that information to satisfy the strict criteria.
Mr Potts submits that it is sufficiently clear in this case, and when applying the test that the High Court has now laid down, that the date of the protection visa application was not information which directly amounted to a rejection or denial of the claim, or did not satisfy the statutory criteria.
Information given by the applicant
In support of this contention, Mr Potts relies on NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195, which was a case in which the applicant contended that the date of the protection visa application was s.424A information (before SZBYR). The Minister’s response was that it was information given by the applicant within the exception in s.424A(3)(b). Justice Young (with whom Gyles and Stone JJ agreed) identified in NBKT at [28] the two issues that arose in relation to s.424A. The question was whether the date of the protection visa application and the date of arrival were “information”:
[28] Two main issues arise in relation to s 424 A. The first is whether the date information constitutes ‘information’ to which s 424A(1) applies. The second issue is whether the appellant ‘gave’ the date information to the Tribunal for the purposes of the application, thus bringing it within the exemption in s 424A(3)(b). It was not disputed that the five and a half year period between those dates formed part of the Tribunal’s reasons for affirming the decision under review: SZEEU at 252 [158] per Weinberg J, and 262 [215] per Allsop J.
NBKT at [43]-[45] deals with how the information about the date of that protection visa application was given to the Tribunal:
[43] As to the date of the protection visa application, it was submitted that the giving of the information by the appellant derived from a number of sources. First, the Minister pointed out that the appellant affirmed to the Tribunal that everything she said in her protection visa application was correct. The Minister relied on the following statements by the appellant at the hearing:
[TRIBUNAL MEMBER]: Now, we will come to that part of the hearing where I want to put a number of questions to you. The first I must ask, is everything you have said in your Protection Visa application, your application for review and other statements correct in every respect?
THE INTERPRETER: Yes.
[TRIBUNAL MEMBER]: Are there any changes that you would like to make?
THE INTERPRETER: No.
[44] Secondly, the Minister relied on a statement by the appellant’s adviser in the written submissions which were provided to the Tribunal for the purposes of the review. The adviser’s letter to the Tribunal said that ‘the [appellant’s] claims were stated in a document attached to her protection visa.’ The document attached to her protection visa (‘the appellant’s statement’) was dated 17 November 2004. It was contended that the date of the actual application can be inferred from the date of the appellant’s statement, as it is logical that the statement would have been prepared at about the same time as the application was made. The Minister submitted that even if the precise date of the protection visa application cannot be inferred, the precise date was not of significance to the Tribunal; rather it was the five and a half year delay between the appellant’s arrival in Australia in 1999 and her application for a protection visa in 2004 which formed part of the reason for the Tribunal’s decision. Thus, it was submitted that the appellant gave the relevant information to the Tribunal within the meaning of s 424A(3)(b), by way of the written submissions provided by her adviser to the Tribunal on 24 January 2005.
[45] Thirdly, the Minster relied upon a number of other references in the transcript of the Tribunal hearing in which the Tribunal member mentioned the date of the appellant’s protection visa application and the delay between her arrival in Australia and her application for a protection visa. The appellant responded that ‘all I said was truth’ and said that she held a ‘varied visa’ (presumably a business visa) when she arrived in Australia, and that back then, she didn’t know that visas such as protection visas existed.
Justice Young summarised the effect of the authorities at [59] and [60]:
[59] These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.
[60] In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the Tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the Tribunal at the hearing. The Tribunal’s questions arose naturally from the appellant’s application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s 424A(3)(b) applies.
His Honour found that that applicant had given the date of her arrival in Australia and the approximate date of her protection visa application in her visa application and the written submissions provided to the Tribunal:
[62] I also find that the appellant ‘gave’ the date of her arrival in Australia and the approximate date of her protection visa application via her visa application and the written submissions provided to the Tribunal by the appellant’s adviser. The appellant affirmed that the details of her application were correct. The written submissions contained a statement which expressly referred to the appellant’s statement attached to her protection visa application. In that statement, which was dated 17 November 2004, the appellant said that she ‘came to Australia on strength of a 457 working visa on 11.3.99’. Thus, for the purposes of s 424A(3)(b), the information was given in the written submissions: VWBF at [51].
Finally, Young J concluded that, effectively, that applicant invited the Tribunal to look at her protection visa application and, for all those reasons, the information about the date fell within s.424A(3)(b):
[63] Furthermore, by filing written submissions with the Tribunal that expressly referred to and incorporated the statement of grounds which was attached to her visa application, the appellant invited the Tribunal to refer to her protection visa application. As in M55, there can be little doubt that the appellant intended that the Tribunal should look at her protection visa application and its attachments. This is a sufficient basis to find that the appellant gave the date of her protection visa application to the Tribunal for the purposes of the review application.
I agree with Mr Potts’ submission that if I apply similar reasoning as set out above the date in this case was given.
Compliance
The “Invitation to Comment on Information” letter issued pursuant to s.424A amply covered and explained whether the information was part of the reason for the Tribunal’s decision (CB 327). To the extent that there needed to be, there was compliance with the section.
For the reasons identified by Mr Potts at [13] above and detailed in the paragraphs following, I am satisfied that the s.424A claim as set out in the amended application fails. In the circumstances, the ground cannot be sustained and should be dismissed.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Fujian interpreter. She requested to participate in the Court’s free panel advice scheme which enabled her to attend a conference and receive advice. The advisor also drafted an amended application raising a single ground of review. The applicant relied entirely on that amended application but did not appear to have any real understanding of its contents or the relevance of presenting her case. The Court was assisted by oral and written submissions prepared by Mr Potts who appeared for the first respondent. I am satisfied that the issue identified in the amended application has been satisfactorily addressed by Mr Potts’ submissions. On a fair reading of the Tribunal decision and the material contained in the Court Book, it is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 21 February 2008
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