SZJTJ v Minister for Immigration
[2007] FMCA 2112
•20 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2112 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no reviewable error – adverse credibility finding – applicant’s conduct in Australia properly disregarded – applicant did not satisfy the Tribunal that conduct was done other than for the purpose of enhancing claim – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.91R(3), 430 |
| Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 SZHAY v Minister for Immigration and Anor (2006) 199 FLR 148; [2006] FMCA 216 |
| Applicant: | SZJTJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3494 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 December 2007 |
| Date of Last Submission: | 10 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 27 November 2006, and amended on 10 December 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3494 of 2006
| SZJTJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 27 November 2006, and amended on 10 December 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 13 October 2006 and notified to the applicant by letter dated 16 October 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The first respondent has filed a bundle of relevant documents in this matter (Court Book (“CB”)) from which the following can be discerned. The applicant is a national the People’s Republic of China (“China”) who arrived in Australia on 9 May 2006 and applied for a protection visa on 18 May 2006 (the application is reproduced at CB 1 to CB 26, and has attached to it a statement by the applicant (reproduced at CB 27 to CB 28)). Following refusal of the application by a Ministerial delegate, the applicant sought review by the Tribunal (CB 42 to CB 45). The applicant attended a hearing before the Tribunal on 5 October 2006. The Tribunal’s account of what occurred at the hearing is set out in its decision record (reproduced at CB 69.4 to CB 72.2).
Applicant’s claims to protection
The applicant’s claims to protection before the Tribunal were that he was a Christian in China and that he had engaged in activities which had brought him to the attention of the authorities in China on a number of occasions, and which had resulted in his detention and ultimately, his imprisonment for two years. This arose out of what was seen to be his involvement in religious activities not sanctioned by the authorities: “using religion to disorder social stability and unity” (CB 27.8), and “organising illegal religious gathering” (CB 28.3). The applicant also claimed to have engaged in religious activities in Australia and to have attended church weekly since his arrival. The applicant feared that if he were to return to China he would be persecuted for his religious beliefs.
The Tribunal
The Tribunal found that in considering the applicant’s evidence that it was not satisfied that the applicant had a well-founded fear of persecution (CB 72.3). In particular, the Tribunal found that at the hearing:
1)The applicant gave “vague and general answers about his claimed activities in the underground church in China” (CB 72 .4);
2)The applicant “did not know about the notion of denomination in Christianity” (CB 72.8);
3)The Tribunal was not persuaded by the applicant’s explanations for this (CB 73.3);
4)The applicant’s inability to give details about his favourite story in the Bible “raised doubts about his claims” (CB 73.4);
5)The applicant’s lack of knowledge about the meaning of “original sin” raised doubts about his claims (CB 73.5);
6)The applicant’s lack of knowledge about the head of the Catholic Church, and other relevant doctrinal matters, raised doubts about his claims (given that he had claimed to have been an actively involved Christian for many years) (CB 73.7 and CB 72.8);
7)The Tribunal found that “in consideration of the evidence as a whole” that the applicant’s overall knowledge of “generally known facts relating to Christianity is incommensurate with his claims that he has been a Christian since 1993” (CB 73.10).
In all, the “overall vague” nature of the claims, and absence of important details in the applicant’s account, raised doubts with the Tribunal about the veracity of his claims. The Tribunal therefore was not satisfied that the applicant had suffered any of the claimed harm in the past, or that there was a real chance of suffering similar harm in the future (CB 74.4).
Further, the Tribunal accepted that the applicant had been baptised in Australia and it was plausible that he attended a church in Blacktown. However, in “consideration of the evidence as a whole”, and relying on its concerns about the veracity of the applicant’s claims, the Tribunal disregarded this activity in Australia pursuant to s.91R(3)(b) of the Act in consideration of the applicant’s claim to protection in Australia (CB 74.6).
Hearing before the Court
At the hearing before the Court, Mr B Zipser of Counsel appeared for the applicant. Ms R Francois appeared for the first respondent. Mr Zipser sought leave to file an amended application. This was granted.
The grounds of the amended application are:
“1.The applicant gave evidence of his Christian activities in Australia to support the veracity of his claims concerning his Christian activities in China. The Tribunal disregarded the applicant’s activities in Australia because it made a s 91R(3) finding. However, the Tribunal, in making a s 91R(3) finding, disregarded the applicant’s activities in Australia. There is an impermissible circularity in the Tribunal’s reasoning process, giving rise to jurisdictional error.
2.The Tribunal found that the applicant “has engaged in Christian activities in Australia for the purpose of enhancing his application for a protection visa”, with the effect that pursuant to s 91R(3)(b) of the Migration Act the Tribunal disregards those activities. The Tribunal fell into jurisdictional error in making this finding.”
Ground One – Impermissible circularity in reasoning
In relation to the first ground, the applicant relies specifically on two parts of the Tribunal’s decision record:
1)At CB 74.2:
“. . . the Tribunal is not satisfied that the applicant has been a Christian since 1993, or that he was ever involved in any (underground or otherwise) Christian activities in China, or that he was ‘threatened and harassed in China’, or that he was ever arrested or detained by the Chinese authorities or ill-treated by them . . .”
2)At CB 74.4:
“In the course of the hearing, the applicant stated that in Australia he attends the Anglican Church in Blacktown weekly. The applicant provided the Tribunal with a Certificate to Baptism dated 6 August 2006 and a photograph of himself with 2 other people in a Church (Folios 39-40). The Tribunal accepts that the applicant has been baptised in Australia and that it is plausible that he attends the Anglican Church in Blacktown, which could explain his knowledge about some of the matters related to Christianity. In consideration of the evidence as a whole and given the Tribunal’s concerns about the veracity of the applicant’s claims, the Tribunal is satisfied that the applicant has engaged in Christian activities in Australia for the purpose of enhancing his application for a protection visa. Pursuant to Section 91R(3)(b), the Tribunal disregards those activities.”
As I understood the applicant’s complaint, in short, it has two aspects. The first is that the Tribunal considered the applicant’s claim to protection as it arose from his claims of what had occurred in China. The Tribunal made an adverse credibility finding without taking into account what it had subsequently accepted, that is, that the applicant had engaged in Christian activities in Australia. The submission was that it was not permissible to so. That is, by making a finding that it was concerned about the veracity of the applicant’s claims, the Tribunal disregarded the applicant’s evidence of his involvement in Christianity in Australia.
The second is that in circumstances where the Tribunal makes a finding pursuant to s.91R(3), based on its disbelief of other claims of the applicant, that it was not open to the Tribunal to disregard the applicant’s conduct in Australia in evaluating those other claims.
The first therefore complains about the Tribunal’s adverse credibility finding. The second that the finding pursuant to s.91R(3) was made by solely applying the credibility finding and disregarding conduct in Australia (which was to some extent favourable to the applicant).
Ms Francois submitted that, with reference to the actual language in s.91R(3), the Tribunal was required to “disregard any conduct engaged in by the person in Australia” for the purposes of determining whether the person had a well-founded fear of being persecuted for one or more of the Convention reasons, unless the applicant could satisfy the Tribunal that his conduct was not done for the purpose of strengthening his claim to be a refugee.
The first respondent relies on what was said by Driver FM in SZHAY v Minister for Immigration and Anor (2006) 199 FLR 148; [2006] FMCA 216 (“SZHAY”) at [32]:
“Both the applicant and the Minister agree that s.91R(3) is not a model of clarity and that resort to extrinsic aids of interpretation is warranted. I also agree. The explanatory memorandum and second reading speech for the Bill introducing the section, referred to by counsel, establish that the principal concern of the legislature was to deal with sur place claims. However, the section is not expressly limited to sur place claims and neither do the extrinsic aids to interpretation support a conclusion that it should be so limited. It would have been a simple matter for Parliament to expressly limit the section to sur place claims. It did not do so. It is easy to see why. The mischief which the provision is intended to deal with is conduct engaged in in (sic.) Australia in order to enhance claims to refugee status. That conduct may take diverse forms. It may take the form of conduct intended to set up a sur place claim. It might also take the form of conduct intended to lend support to a claim of persecution based upon asserted events in the applicant’s country of origin. For example, an applicant may engage in political, religious, or particular social group activities in Australia in order to support a claim that he or she engaged in like activities in his or her country of origin. There may be no sur place claim but the conduct may be intended to have a corroborative effect. In my view, s.91R(3) was intended to deal with all such circumstances. In the first place, it is what the section appears to say on its face. Secondly, it is consistent with what the explanatory memorandum referred to by Mr Smith says. Relevantly, it says:
Under new section 91R, for the purposes of the application of the Act and the Regulations to a particular person, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister that he or she engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention [emphasis added].”
The respondent’s position is that once the Tribunal found that s.91R(3) was enlivened, the Tribunal properly disregarded the applicant’s conduct in Australia in assessing his claims, and that it was not permitted to do otherwise.
To the extent that the applicant’s complaint is that in the circumstances of this case the Tribunal was not permitted to disregard the applicant’s conduct in Australia because the finding under s.91R(3) was based on its disbelief of other claims of the applicant, I understood this to be a complaint that in assessing the claims as they related to China, the Tribunal should have taken into account the applicant’s evidence as to his activities in Australia.
I do not agree with Mr Zipser’s submissions in this regard. I cannot see that the Tribunal is limited in reaching, or not reaching, a level of satisfaction in the way as submitted by Mr Zipser now for the purposes of s.91R(3).
The Tribunal accepted that the applicant had been baptised in Australia and accepted the plausibility of his attending an Anglican Church in Blacktown. But given the applicant’s evidence (“in consideration of the evidence as a whole”) from which the Tribunal derived an adverse view about the applicant’s claims, it is for the applicant to satisfy the Tribunal that he engaged in conduct in Australia other than for the purpose of strengthening his claims to be a refugee. Given the concerns that the Tribunal had about the applicant’s credibility, the applicant was unable to satisfy the Tribunal that his conduct in Australia was other than for the purpose of strengthening his claims.
In SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726, Mansfield J (in a matter that was upheld on appeal by the Full Federal Court per Hill, Branson and Stone JJ at [17]-[18]) found (at [53]-[57]) that there was no error on the part of the Tribunal in that case in it not being satisfied that the applicant engaged in particular conduct in Australia other than for the purpose of strengthening his claim to be a refugee, yet at the same time the Tribunal accepted that the applicant could have developed some genuine affinity with the Christian religion in Australia (“genuine affinity with Christianity as a result of his conduct in continuing to study it and in continuing his contact with” certain religious persons in Australia).
His Honour explained the “reservation” in s.91R(3)(b) (at [54]) as requiring the applicant to satisfy the Tribunal, given the circumstances relevant in that case (Christianity in Australia - similar to the case before the Court now), that he had developed a genuine affinity with Christianity. Secondly, that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.
In the case before the Court now, while the Tribunal accepted certain acts relating to baptism and attendance at church in Australia had occurred, could not be satisfied, given its credibility concerns about the applicant’s evidence as a whole, that this was done other than for the purpose of enhancing his application for a protection visa.
Mr Zipser’s submission relies in part on reading the Tribunal’s decision as a series of segmented parts that require (particularly on the issue of the credibility finding) repetition of each and every aspect of the applicant’s claims. There was some suggestion that if the Tribunal had made specific reference to the activities in Australia prior to what is set out at CB 74.4 (“In essence and for the above reasons . . . occurring in the future”) that much of the complaint now would fall away.
Decision records, given the limitations inherent in human expression and communication, are by nature linear. This does not mean however that what follows, say towards the end of the record, should be read in isolation from what precedes it. Decision records are not, in my view, some “serial” story to be read in weekly instalments. It does not mean that the reader’s understanding of its view is that the Tribunal’s intention should be read with this limitation.
It is often said that Tribunal reasons for decision should be read as a whole. There is good reason for this. It is only when read in this way that proper meaning can be discerned. Nor does s.430 in requiring the Tribunal to prepare a “written statement” (decision record) impose any such limitation as that suggested by Mr Zipser now.
In my view, Tribunal decisions are not to be read as some abstract mathematical formula where the location of a fraction in one point, instead of the other, renders the theorem inoperable. Tribunal decisions need to be clear and, within reason, logical. But proper meaning is to be had with regard to the reasons as a whole.
The applicant attended a hearing before the Tribunal. Following the hearing, the Tribunal had before it the totality of the applicant’s claims and evidence. This included what he said had occurred in China and what had occurred after his arrival in Australia.
In my view, the Tribunal’s reasoning is quite clear. Two elements emerge. It formed an adverse view of the applicant’s credibility and it was not satisfied that the applicant’s relevant conduct in Australia (which it accepted as probably having occurred) was engaged in other than for the purpose of strengthening the claim to be a refugee. Being unable to be so satisfied meant that the Tribunal was required to disregard such conduct. As Ms Francois submitted, it was not permitted to do otherwise.
That the Tribunal’s expression of its thought processes, that is, the written statement (prepared pursuant to s.430) placed the particular reference to s.91R(3) in a particular part of the decision record cannot detract from the situation that the Tribunal on the “evidence as a whole” could not be satisfied that the conduct was engaged in other than for the purpose of strengthening the refugee claim. As such the Tribunal was required to disregard this conduct. That is, disregard it in “determining whether the person has a well founded fear of being persecuted” (s.91R(3)(a)). No error can be said to arise where the Tribunal conforms with its statutory obligations.
Mr Zipser also submitted that the Tribunal engaged in “circular” considerations, in that it formed an adverse view of the applicant’s credibility without considering the applicant’s conduct in Australia, then used this view of his credibility, its disbelief of his “other” claims, to make a “finding” pursuant to s.91R(3).
I cannot see that the Tribunal should have regard to any conduct in Australia, for any purpose, in determining the review, given that it had formed the view that it had which required it to disregard such conduct. That it formed the view that it did because of the credibility of the applicant, is as a result of the causal connection between what he said had occurred in China (and its view of this), and what he said had occurred in Australia. That is, the Tribunal, having formed an adverse view of the credibility of the applicant’s claims, was not satisfied that the conduct in Australia was engaged in other than for the purposes of strengthening the refugee claims. I agree with Ms Francois’ submissions in this regard
I also agree with the respondent’s reliance on what was relevantly said by FM Driver in SZHAY as to the effect of s.91R(3). In particular, I respectfully agree that s.91R(3) was intended (amongst other things) to deal with a circumstance involving conduct in Australia which is intended to have a corroborative effect in support of claims arising from conduct and activities in the country of claimed persecution.
In the case now before the Court, there was no suggestion by the applicant that he feared persecution in China simply because he had been baptised in Australia and attended church on a weekly basis. These statements were made by the applicant at the hearing before the Tribunal (see the Tribunal’s account at CB 69.8) and, in context, could only have been provided in support of that aspect of the applicant’s claim to be a Christian and to have suffered harm in China, and to fear persecution and harm in China as a result.
I also agree with submissions by Ms Francois that what the High Court said in Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30 is relevant. As was said by McHugh J at [49]:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.”
In the case before the Court now, the applicant’s credit was so diminished that the Tribunal did not believe the evidence that he had put forward in corroboration. The Tribunal’s inference (at CB 74.6), that it considered the evidence as a whole, makes it plain that this was how the Tribunal saw the relationship between the applicant’s lack of credibility and what he said had occurred in Australia.
The Tribunal was in my view entitled to apply the adverse view that it had formed about the applicant’s claims as they were said to arise from events in China, but also as they arose from the applicant’s inability to satisfy the Tribunal as to his claimed beliefs and knowledge about Christianity. In that sense, this transcends the issue of any distinction between claims as they relate to China and events in Australia.
In all, therefore, this ground is not made out.
Ground Two – Construction of s.91R(3)
In ground two the applicant invites the Court to agree to a construction of s.91R(3) which postulates that where a person engages in conduct for more than one purpose in Australia, then it is not open to the Tribunal to disregard the conduct engaged in by the person. That is, that such a course of action requires the Tribunal to find that the conduct was engaged in for a single purpose, and that was the purpose to strengthen the claims to be a refugee. Mr Zipser sought to emphasise that what is required by s.91R(3)(b) is a focus on “the purpose,” rather than “a purpose”.
As Ms Francois submits, s.91R(3) is drafted in terms of “the purpose,” and not “a purpose”. To that extent there is agreement with the applicant. But the Tribunal did not make any finding about “a purpose”, but in fact found, consistent with the relevant statutory language, that it was satisfied: “that the applicant has engaged in Christian activities in Australia for the purpose of enhancing his application for protection visa” (CB 74.5, emphasis added).
The difficulty for the applicant is that the Tribunal did comply with this statutory requirement. I cannot see that the Tribunal made any finding that there were at least two or more purposes for the applicant’s conduct. The Tribunal found there was only one purpose, that is: “the purpose”. Nor is it inconsistent for it to have so found in circumstances where it accepted the factual basis that the applicant had been baptised in Australia and had attended church. Simply it found that “the purpose” for these activities was to enhance his application for a protection visa. This ground also does not succeed.
Conclusion
The applicant with legal assistance has put forward two grounds. The grounds are not made out. I cannot discern jurisdictional error as it is said to arise from either of the two grounds. This application, therefore, is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 20 December 2007
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