SZJSD v Minister for Immigration

[2007] FMCA 604

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 604

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant disbelieved by the Tribunal – Tribunal disregarding the applicant’s conduct in Australia as intended to support her claims, but then using the same conduct to affirm the delegate’s decision on the basis that the applicant would not maintain her faith – “what if I am wrong” consideration required by the Tribunal – Tribunal failed to consider what the applicant’s position would be in China as a committed Christian – jurisdictional error established.

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

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Lay Lat v Minister for Immigration [2006] FCAFC 61
Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299
Minister for Immigration  v Rajalingham (1999) FCR 220
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NADH of 2001 v Minister for Immigration (2004) 214 ALR 264
NAOA v Minister for Immigration [2004] FCAFC 241
NBKT v Minister for Immigration [2006] FCAFC 195
SAAS v Minister for Immigration [2002] FCA 726 at [55]
SAAS of 2001 v Minister for Immigration [2002] FCAFC 340
SZCIJ v Minister for Immigration [2006] FCAFC 62
SZHAY v Minister for Immigration & Anor [2006] FMCA 261
Wang v Minister for Immigration (2000) 105 FCR 548

Applicant: SZJSD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3377 of 2006

Judgment of: Driver FM

Hearing date: 20 April 2007

Delivered at: Sydney

Delivered on: 20 April 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

2. A writ of certiorari issue quashing the decision of the Refugee Review Tribunal signed on 3 October 2006 and handed down on 24 October 2006.

3. A writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

4. The first respondent is to pay to the applicant the filing fee of $419 paid by the applicant on 27 March 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3377 of 2006

SZJSD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The Tribunal decision was handed down on 24 October 2006.  The applicant sought judicial review of the Tribunal decision by way of a show cause application filed on 15 November 2006.  In that application she asserted actual notification of the decision on 28 November 2006.  I find that the show cause application was filed within time.

2. The applicant is from China and had made claims of religious persecution as a Christian.  The background facts relating to the applicant's protection visa claims and the Tribunal's decision on them are summarised in the Minister's outline of written submissions filed on 17 April 2007.  I adopt as background for the purposes of this judgment paragraphs 2 to 3(e) of those written submissions:

   The applicant:

   (a)      claimed to be a citizen of the People’s Republic of China;

   (b)          entered Australia on 21 February 2006; and 

   (c)      lodged an application for protection visa on 13 March 2006.

   On 10 June 2006 a delegate of the Minister refused to grant the applicant a protection visa.

   On 3 July 2006 the applicant applied for review of that decision.

   The applicant attended a hearing of her application before the Tribunal on 29 August 2006.  She submitted written material at the hearing, including a letter from Mr Huynh, who was the pastor of the church that she attended whilst in Australia.

   Subsequent to the hearing a tribunal officer contacted Pastor Huynh to clarify a number of issues that arose from relevant information conveyed by his letter.  That information was then put to the applicant for comment in a letter dated 1 September 2006 (the “424A letter”): court book, pages 69-70.  The applicant responded by letter filed on 21 September 2006: court book, page 72.

   Application for review

   The applicant claimed that she was a Christian and had attended an underground family church in China.  She had participated in prayer, singing hymns, bible study, social activities and pastoral care.  Other family churches had been subject to government crackdowns and this caused the applicant to fear that she may be arrested as part of the crackdown.  After she arrived in Australia she heard that all the members of her church were arrested.  She had been charged by authorities in absentia and would be pursued by authorities if she returned to China.

   The Tribunal member made the following findings:

   (a)The applicant did not start regularly attending a church in Australia until after her application for review was filed.  She did not know who John the Baptist was, did not mention any of Christ’s parables and was confused about what Christmas and Easter signify.

   (b)The applicant displayed a knowledge of some aspects of Christianity and an ignorance of others.  The Tribunal would have expected a person who had participated in weekly bible study for three years to have a more accurate and detailed understanding of Christianity, particularly having attended church in Australia for at least a few weeks.

   (c)The applicant did not attend an underground church in China, was not sought by authorities for that reason and her knowledge of Christianity was obtained in Australia.  These findings were based on the following matters:

   (i)She did not leave China at the earliest opportunity.

   (ii)She had a relatively superficial understanding of Christianity.

   (iii)She did not regularly attend church services until after she filed her application for review.

   (iv)When she first attended church in Australia she was not adamant about her faith.

   (d)It was not satisfied that her involvement with the Church in Australia was for any reason other than to obtain support as a means of strengthening her claim to being a refugee.  Accordingly the Tribunal disregarded those activities in involving herself with that church.

   (e)She would not continue her association with the Christian church if she were to return to China and accordingly would not attract the adverse attention of the Chinese authorities.  Further, her activities in Australia would not cause her to be adversely regarded by authorities in China.

3. The applicant relies upon her original show cause application.  I note that the title of the first respondent to that application requires correction.  I direct that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

4. In that application the applicant asserts a breach of the rules of natural justice or procedural fairness.  The particulars focus upon a disagreement with the Tribunal's reasoning in relation to the applicant's claims of persecution.  That just goes to the merits of the Tribunal decision.  However, the application also asserts that the Tribunal did not comply with relevant legal procedure in dealing with her review application.

5. The application is supported by two affidavits by the applicant.  The first is a mixture of basic facts and submissions.  The second is entirely a submission bearing upon the strength of the applicant's protection visa claims.  The applicant was not able to present oral submissions on any legal issues in this matter given the fact that she is a self represented litigant in person.

6. I also have before me the court book filed on 25 January 2007 and the Minister's written submissions already mentioned.  The Minister is to be commended for attempting, as a model litigant, in those submissions to deal with legal issues which might hypothetically arise from the application.  I agree with and adopt for the purposes of this judgment paragraphs 4.3 and 4.4 of those submissions:

   In respect to ground 1, the Tribunal complied with the procedural code constituted by Division 4 of Part 7 of the Migration Act 1958 (Cth) (“the Migration Act”): s.422B; Lay Lat v Minister for Immigration [2006] FCAFC 61; SZCIJ v Minister for Immigration [2006] FCAFC 62. Specifically, the Tribunal’s decision was based on the applicant’s testimony, the material submitted by the applicant at the Tribunal hearing and the information conveyed by Pastor Huynh. The information conveyed by the applicant’s testimony and the material submitted was information given by the applicant for the purpose of her application for review: s.424A(3)(b). In respect to the investigations that the Tribunal made of the letter from Pastor Huynh, the information conveyed in response to those investigations was put to the applicant in the 424A letter in compliance with s.424A(1) and was considered in accordance with s.424: court book, pages 69-70. The applicant’s responses to the 424A letter were also considered. In respect to the determinative issues arising in respect to the applicant’s application for review, these were put to the applicant at the hearing and in the 424A letter. The applicant was given an opportunity to respond to those issues. No inference to the contrary should be drawn as there is no transcript in evidence before the Court: NAOA v Minister for Immigration [2004] FCAFC 241 at [21].

   In respect to the allegation that the Tribunal did not take into consideration evidence that the applicant gave at the hearing, the Tribunal’s reasons show that her testimony was appraised by the Tribunal: court book, pages 97-8.  The applicant’s essential complaint is that the Tribunal’s findings were an unfair appraisal of the applicant’s testimony.  The Court cannot review such unfairness nor the weight given to some answers as opposed to others: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-7; Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299 at 309; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-2, 291-2. The findings were not perverse or otherwise unreasonable in the sense of being unreasoned and contrary to all of the probative material before the Tribunal: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 368; see also NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 at [115]. The applicant’s evidence as to her beliefs displayed knowledge of some aspects of Christianity and ignorance of other key aspects, such as the significance of Christmas and Easter: court book, page 96.

7. The submissions also properly raise the issue of the application of s.91R(3) of the Migration Act in this case. The Tribunal disregarded the applicant's conduct in Australia as it was not satisfied that that conduct was engaged in for a reason other than enhancing the applicant's claims for a protection visa. Section 91R(3) is a provision which is difficult to construe and which poses real difficulties for decision makers because of its ambiguity. I dealt with some of the issues arising in relation to s.91R(3) in my decision in SZHAY v Minister for Immigration & Anor [2006] FMCA 261 from paragraph 32. I maintain the views I expressed in that judgment, in particular at paragraphs 36 and 37.

8. The Minister makes submissions in relation to s.91R(3) at paragraphs 5.1 to 5.6 of the written submissions. I incorporate those submissions in this judgment:

   The Tribunal’s decision included consideration of material that addressed the Applicant’s conduct in Australia.  The Tribunal disregarded that conduct: CB 98-9. 

   Notwithstanding the explicit statement that the Applicant’s conduct in Australia was disregarded for the purpose of the application of the Migration Act, there are a number of findings that are based on information as to the Applicant’s beliefs and information obtained pursuant to the investigations made by the Tribunal in respect to the letter from Pastor Huynh.

   In respect to the former information, the appraisal of the Applicant’s beliefs was not an appraisal of information regarding the Applicant’s conduct in Australia: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [96]; Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at [16]. Accordingly, such an appraisal did not breach s 91R(3).

   In respect to the latter information, that information was obtained as a result of the Tribunal’s investigations in respect to the letter from Pastor Huynh. It was not given by the Applicant. Accordingly, the Tribunal was obliged to consider and did consider that information and in doing so did not breach s 91R(3): SZHAY v Minister for Immigration [2006] FMCA 261 at [36]. The inferences drawn from that information (specifically that the Applicant had an opportunity to attend a church in Australia) were similarly not subject to s 91R(3).

   In the alternative, the Tribunal’s consideration of information as to her beliefs and the likelihood of persecution should she return to China, were based on the possibility that, notwithstanding its s 91R(3) finding, the Applicant may nevertheless have developed a genuine affinity with the Christian religion during her time in Australia and her fears based on her attendance at church may have been genuine: SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 at [55]; affirmed on appeal in SAAS of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 340 at [15]; see also Minister for Immigration and Multicultural Affairs v Rajalingham (1999) FCR 220 which was referred to at CB 96.

   Accordingly, there was no error in the Tribunal’s findings.   

9. There is force in the Minister's submission that the Tribunal was entitled and indeed obliged to take into account the information it obtained from the applicant's pastor, Pastor Huynh.  The presiding member explains what happened in his reasons in the third full paragraph on page 94 of the court book.  The presiding member also prepared a file note which appears on page 66 of the Court book.  A record of discussion with the pastor appears on pages 67 and 68 of the court book.

10. In my view, the approach to Pastor Huynh was an exercise of the Tribunal's power pursuant to s.424 of the Migration Act. Having obtained information from Pastor Huynh pursuant to the exercise of that power, the Tribunal was obliged to take it into account. In my view and consistently with the views I expressed in SZHAY, in the event of any conflict between s.91R(3) and s.424 of the Migration Act, the latter must prevail.

11. It follows that the Tribunal was entitled (and probably obliged) to take into account the information obtained from Pastor Huynh notwithstanding that the Tribunal was required to disregard the applicant's conduct in Australia in participating as a member of his church.  Information obtained from the pastor was significant in the formation of the Tribunal's opinion that the applicant's knowledge of Christianity was only recently obtained in Australia (court book, page 98).

12. The real difficulty in this case centred upon in the Tribunal's ultimate finding on page 99 of the court book that the applicant would not face a serious risk of harm should she return to China.  The Tribunal said:

    Having found that the applicant became associated with the church in Sydney for the purposes of strengthening a claim for protection, the Tribunal finds that [if] were she hypothetically to return to China she would not continue  her association with the Christian church, the motivation for doing so having ended.  The Tribunal therefore finds she would not come to the adverse attention of the PRC authorities as a result of anything she might do in China after her return.  There is nothing before the Tribunal to suggest that her activities in attending the church in Australia would cause her to be adversely regarded by the authorities in China.  Indeed there is nothing before the Tribunal to suggest that such attendances would come to the notice of those authorities.  The Tribunal therefore finds she would not be regarded adversely in China because of her attendance at a church in Australia. 

13. A serious difficulty with the Tribunal's reasoning is that it appears to be based at least in part on the applicant's conduct in Australia that the Tribunal already acknowledged it was required to disregard by s.91R(3). As I said in SZHAY, in my view if a Tribunal is required to disregard an applicant's conduct in Australia it must disregard it for all purposes.

14. In his oral submissions, counsel for the Minister proposed that the Tribunal's reasoning might be seen as being based not upon the fact of the applicant's conduct in Australia but rather the Tribunal's finding on that conduct. It is certainly arguable that while s.91R(3) prevents a Tribunal from relying upon an applicant's conduct in Australia if such conduct was engaged in to support a protection visa claim, the Tribunal is not thereby prevented from taking into account its own reasoning and findings in relation to that conduct. The distinction, however, is a conceptually difficult one and may be elusive. In the present case I do not think it is necessary to resolve the question.

15. The resolution of this case flows from the Minister's alternative proposition that the paragraph in issue was in reality an alternative finding based upon the possibility that the applicant had indeed developed a genuine affinity with the Christian religion in Australia.  The presiding member said on page 96 of the court book:

    If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.  (See MIMA  v Rajalingham (1999) FCR 220).

16. This statement which appears in the findings and reasons portion of the Tribunal decision should in my view be taken to be an acknowledgement by the presiding member that he may not be able to reach such an unequivocal finding about the applicant's claims to avoid the need to consider the claims as if they were true.

17. The Tribunal had doubts about the applicant's claim that she had been a practising Christian in China.  The Tribunal rejected the applicant’s claim that she belonged to an underground church.  The Tribunal attempted to assess the strength of the applicant's knowledge of Christianity and she displayed some but an imperfect knowledge.  There was, however, no express rejection by the Tribunal of the applicant's claim to have been a Christian in China.  Rather, the Tribunal found that the applicant's knowledge of Christianity was obtained in Australia recently. One might hypothesise that one could be either an ignorant or a knowledgeable Christian.

18. The Tribunal had available to it the information provided by Pastor Hynyh but that information did not establish that the applicant was not a committed Christian.  Rather, it tended to establish that the applicant’s commitment developed over time and recently.  The Tribunal did not have available to it information from the applicant about her conduct in Australia in considering whether she had a well‑founded fear of persecution in China because the Tribunal was required to disregard that conduct.  The Tribunal probably had available to it its own assessment of the content and quality of the applicant's beliefs, having regard to the obiter dicta observations of the Federal Court in NBKT v Minister for Immigration [2006] FCAFC 195 at [95]-[97]. However, that information was equivocal. The applicant knew some things and not others. It follows in my view on a fair reading of the Tribunal decision that the presiding member would not have been certain that the applicant was not a committed Christian. He therefore needed to consider what the applicant's position would be in China as a committed Christian.

1. The paragraph in issue put forward in the Minister's submissions as that alternative consideration manifestly fails in that regard.  The consideration is infected with the finding that the applicant's commitment to Christianity was simply to advance her protection visa claims.  The Tribunal needed to consider what the applicant's position would be if she maintained her faith as a committed Christian.  It failed to do so.  Rather, the Tribunal found that the applicant would not maintain her faith.  I find that the Tribunal neglected to engage in the consideration which it itself considered it might need to undertake pursuant to the Federal Court's analysis in Rajalingham.  That is sufficient to establish jurisdictional error. 

2. It follows that the applicant is entitled to relief and the appropriate relief to grant are the constitutional writs of mandamus and certiorari.

3. As to costs, the applicant tells me that she has been assisted by friends and has not incurred any legal costs.  She has, however, paid a filing fee of $419 which is verified by a tax invoice from the court registry which became exhibit A1.  I will order that the first respondent is to pay to the applicant the filing fee of $419 paid by the applicant on 27 March 2007.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  30 April 2007