SZJUL v Minister for Immigration

[2007] FMCA 2103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJUL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2103

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3) 91S; 424A; 474; pt.8 div.2

Abebe v The Commonwealth (1999) 197 CLR 510
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZJUL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3568 of 2006

Judgment of: Emmett FM

Hearing date: 9 July 2007 & 14 December 2007

Date of last submission: 14 December 2007

Delivered at: Sydney

Delivered on: 19 December 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent: Mr S. Free

Solicitors for the Respondent: Mr I. Muthalib, Blake Dawson Waldron Mr O. Young, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3568 of 2006

SZJUL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 October 2006 and handed down on 16 November 2006.

2. The applicant was born on 4 August 1971 and claims to be from China and of Catholic faith (“the Applicant”).

3. On 20 May 2006, the Applicant arrived in Australia, having legally departed from Xiamen Port on a passport issued in his own name.

4. On 1 June 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

5. In his protection visa application, the Applicant claimed that he and his family feared persecution by the Chinese authorities as a result of his involvement with an underground Christian church in China and past incidents of persecution. The claims of past incidents included claims that the Applicant was kidnapped and beaten by police for complaining about police activity in China and his wife forced to pay a “fine” for his release followed by threats and harassment from police for his attending and involving himself with an underground church.

6. On 5 July 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

7. On 4 August 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 27 October 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 29 November 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. On 21 August 2006, the Tribunal invited the Applicant to come to a hearing on 29 September 2006.

2. The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims. The Tribunal questioned the applicant on his claims with regards:

   a)fines he received from the Chinese authorities;

   b)his involvement with the underground church in China;

   c)his knowledge of the Christian religion in general;

   d)his movements before leaving China;

   e)inconsistencies between his claims in his oral evidence and his claims in his protection visa application, including the number of times he was detained and changes in his claimed place of residence from 2003 to 2005 

3. The Tribunal found the Applicant not to be a credible witness.

4. The Tribunal did not accept the Applicant’s claims that he had ever been detained by the police in China for: being an unregistered Catholic or a member of an underground church in China; not registering with the official Catholic church in China; or having more than one child.

5. At the hearing the Applicant provided a letter from Fr. Paul McGee the Assistant Pastor at the Chinese Catholic Community of West Sydney, dated 18 September 2006, and documents which he claimed were receipts for fines received in China. The Tribunal rejected the Applicant’s claims of being a member of an underground church in China or having been persecuted for a Convention reason. Having comprehensively rejected the Applicant’s claims, the Tribunal placed no weight on the documents provided by the Applicant in support of his alleged fine and detention arising from any Convention related reason.

6. The Tribunal accepted the evidence of Father McGee that the Applicant had attended his church in Australia. However, the Tribunal did not accept that the Applicant “had ever had any involvement with the Catholic faith while in China, nor that such involvement caused him to leave the country”. The Tribunal found that the Applicant “demonstrated very little knowledge of the Bible and Christianity more broadly”.

7. The Tribunal found that the Applicant’s sole motivation in attending Church in Australia was to support his protection visa application. The Tribunal did not accept that his attendance at Church was a genuine expression of his faith. The Tribunal found that the Applicant “displayed minimal knowledge of the Catholic faith” at the hearing. The Tribunal was not satisfied that the Applicant’s conduct in attending a Catholic church in Australia was otherwise than for the purpose of strengthening his claim to be a refugee and therefore, pursuant to s.91R of the Act, disregarded that conduct.

8. On 4 October 2006, the Tribunal wrote to the Applicant, pursuant to s.424A of the Act, identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it. In particular, the Tribunal informed the Applicant about concerns it had about the Applicant’s oral claims and inconsistencies between the Applicant’s oral claims and his statement in support of his protection visa application. The Tribunal’s letter informed the Applicant that the information was relevant because the inconsistencies in the Applicant’s evidence may lead the Tribunal to doubt the Applicant’s credibility more generally. The Applicant was invited to comment by 18 October 2006, however, no response was received by the Tribunal from the Applicant.

9. The Tribunal was not satisfied that the Applicant is a person to whom Australia has obligations under the Convention and affirmed the decision under review. 

The proceeding before this Court

1. The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant has filed three applications in this Court: an application filed on 29 November 2006; an amended application filed on 14 March 2007; and a further amended application filed on 20 July 2007.

2. The grounds of the application filed by the Applicant on 29 November 2006 are as follows:

   “1. The Tribunal failed to carry out it’s Statutory duty.

   2. The Tribunal failed to review my application Due to I cam to Australia for boss then six months so the Church refused give me evidence.  So the tribunal’s decision is not fair.  It was based on unwarranted assumptions or was irrational.”

3. The grounds in the amended application filed on 14 March 2007 are as follows:

   “1. The Tribunal did not consider all the evidences provided by me, failed to consider the new evidences.

   2. I’m still a catholic without the Chinese passport, and I’m afraid of going back to China, my formal employer has notified the police in China, and I’m feared to be arrested again.

   3. After meeting my legal advisor from the government, I will provide my amended application.”

4. The grounds in the further amended application filed on 20 July 2007 are as follows:

   “1. Due to the reason that I am Catholic, the Chinese local government confiscated all my farming land (evidence will be provided on the day of the hearing)

   2. The local church’s certification of my Catholic status will be provided on the day of hearing.”

5. None of the ground referred to above disclose any error capable of review by this Court. None are supported by particulars or evidence and no submission was made either orally or in writing by the Applicant in support of any of the grounds.

6. In ground 1 of the amended application the Applicant asserted that the Tribunal “failed to consider the new evidences”. If the Applicant was intending to submit that the Tribunal was obliged to obtain further evidence in support of the Applicant’s claims, such an allegation is misconceived (Abebe v The Commonwealth (1999) 197 CLR 510 (“Abebe”) at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]).

7. The Tribunal considered all evidence provided by the Applicant, both written and oral. Otherwise, the grounds expressed by the Applicant in his various applications are more in the nature of a disagreement with the findings and conclusions of the Tribunal and, as such, seeks merits review which this Court cannot undertake (Abebe at 579; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).

8. Although the Applicant had requested on the last occasion a Putian interpreter, he had requested a Mandarin interpreter on each of the three applications filed by him in this Court in which he sought judicial review of the Tribunal decision.

9. The Applicant has had the submissions of the first respondent upon which the first respondent relied since July 2007. The Applicant has not filed any submissions in support of his application, despite being directed to do so on two occasions by this Court. There has been no genuine attempt by the Applicant to identify a proper ground of review; to file any evidence in support of his application; or to file submissions either in support of his application or in response to the submissions of the first respondent; any attempt at the hearing of this Court to make relevant submissions orally in support of his application. 

10. In the circumstances, the Applicant has not taken any steps to assist himself in minimising the effect of being assisted only by an interpreter who speaks only Mandarin, rather than Putian.

11. At the outset of the hearing before this Court the Applicant raised a further complaint that he could not speak Mandarin and that is why his evidence given to the Tribunal about his religious activities had been found by the Tribunal to be untrue.

12. However, in his response to the hearing invitation received by the Tribunal on 5 September 2006, the Applicant requested a Mandarin interpreter to assist him and did not identify any dialect, such as Putian. Further, a fair reading of the Tribunal’s decision does not suggest that the Tribunal had any difficulty in communicating with the Applicant through the Mandarin interpreter. In any event, the Tribunal put concerns about the Applicant’s evidence to the Applicant in writing in its letter dated 4 October 2006, thereby providing the Applicant with an opportunity to consider the matters raised by the Tribunal. The Tribunal’s letter provided details for translating and interpreting services.

13. A fair reading of the Tribunal’s decision makes clear that the Tribunal accurately summarised the Applicant’s written claims. The Tribunal identified with specificity exchanges it had with the Applicant about his claims. The Tribunal noted matters that it put to the Applicant during the hearing and noted the Applicant’s responses. As referred to above, the Tribunal wrote to the Applicant on 4 October 2006 inviting comments on information particularised by the Tribunal that it considered would be the reason or part of the reason for affirming the decision under review. 

14. The Tribunal made findings based on the evidence given by the Applicant, including its adverse credibility findings. The Tribunal found that the Applicant did not provide “a truthful account of his experiences or beliefs in China”. The Tribunal rejected comprehensively the Applicant’s claims of involvement with the Catholic faith in China and rejected all the Applicant’s claims of persecution in China for that reason. 

15. However, the Tribunal accepted that the Applicant has attended the Chinese Catholic Community Church of West Sydney in Australia since July 2006. However, the Tribunal was not satisfied that the Applicant’s conduct in attending the Catholic Church in Australia was otherwise than for the purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal noted that, pursuant to s.91R(3) of the Act, it must disregard that conduct.

16. The Tribunal made findings based on the evidence before it. The Tribunal applied the correct law to those findings in reaching its conclusions. The Tribunal’s findings were open to it on the evidence before it and for which it provided reasons, including the adverse credibility findings. Credibility findings are a matter “par excellence” for the Tribunal (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407).

17. The Tribunal made its decision in accordance with the statutory regime, including the conduct of its review. 

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court, commenced on 29 November 2006, is dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Kwong

Date:  18 December 2007