SZJUO v Minister for Immigration
[2008] FMCA 239
•27 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 239 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.422B, 424A, 425 |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NADH v Minister for Immigration and Multicultural and Indigenous Affair (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZJUO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3580 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Ms. T L Wong |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to read Minister for Immigration & Citizenship.
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,350.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3580 of 2006
| SZJUO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 2 November 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in February 2006 and applied for a protection visa in April 2006. The application was refused and she sought review by the Tribunal. The applicant was invited to, and attended, a Tribunal hearing. Subsequently the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act1958 (Cth). The applicant responded to that letter. Thereafter the Tribunal made the decision that is presently in issue.
The applicant sought review of the Tribunal decision by application filed on 4 December 2006. In that application she contended generally that there was an error of law in the Tribunal decision and a lack of natural justice and provided particulars. She also addressed her claims in oral submissions today.
In connection with her protection visa application the applicant claimed in essence to have a well founded fear of persecution arising from her involvement in a local church in the area in China in which she was living. In particular, she claimed that she had commenced employment in about January 2003 in a factory owned by a prominent member of the local church and that she had been introduced to the teachings of the local church and baptised in June 2003. She said that this was a local church that had been regarded as an illegal anti-government religious organisation in mainland China and that many of the Christians in that local church had been subject to persecution. She claimed that after June 2003 she spread the gospel by distributing pamphlets to the local people, organising workers in the factory to study the bible and other propaganda material, visiting their families and friends to spread the gospel and setting up secret gathering groups. She claimed that she was responsible for one such group.
The applicant claimed that the Public Security Bureau (PBS) often sent police to the factory to investigate illegal religious gatherings and activities but could not find any evidence as the activities were conducted in secret.
She claimed that in August 2005 the factory was raided by police and that while they could not find any religious materials or other evidence they took her and her friend away because both of them were regarded as suspicious. She claimed that they were detained for about one month, that they refused to confess or expose anything regarding the underground gathering groups or activities of the local church and that the police could not find any evidence against them and had to release them. She claimed that while detained she and her friend were subject to physical and mental persecution by the police.
The applicant claimed that after she was released she discovered the factory was closed. She travelled to Beijing and started to make arrangements for an overseas trip. In December 2005 she began to distribute propaganda material for the local church in Beijing. The applicant claimed that her friend, the owner of the factory, was arrested in February 2006 and that in order to escape from feared persecution she came to Australia. She claimed that the police had visited her home to arrest her and that her husband had been questioned by the authorities.
The application for a protection visa was refused by a delegate of the first respondent who found that there were a number of issues which impugned the overall credibility of the applicant's claims and did not accept that she was an adherent of the local church or the claims made on that basis.
The applicant sought review by the Tribunal. In connection with her review application she provided a letter to the Tribunal in which she clarified her identity, claiming that the name under which she had previously made claims was not her real name and that she had used false travel documents to avoid detection by the authorities. She elaborated on the manner in which she obtained documents to travel to Australia. She otherwise contended that her claims about her experiences after December 2000 were correct.
The applicant attended a Tribunal hearing at which she gave oral evidence. Subsequently the Tribunal wrote to the applicant (under s.424A of the Migration Act 1958 (Cth)) by letter dated 18 September 2006 putting to her what it described as a number of inconsistencies in the evidence provided by her at various stages as well as information from other sources which it said may lead it to question the veracity of her claims. The applicant responded in a letter dated 25 September 2006.
In its reasons for decision the Tribunal outlined the claims made by the applicant in connection with her protection visa application and in the course of the Tribunal review, including the evidence given by the applicant at the Tribunal hearing. In that respect I note that the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal sets out at some length what occurred at the Tribunal hearing. The Tribunal also referred to the s.424A letter and response and to independent country information about the local church in China.
In its findings and reasons the Tribunal accepted the applicant's claims in relation to her identity. It also accepted independent country information which supported in a general way the claims that in the area of religious freedom the Chinese authorities commonly engaged in abuse and persecution of individuals suspected of membership of proscribed groups and that there was sometimes persecution of those practising as Shouters (another description for the local church in China) by the authorities. However, as the Tribunal stated, its task was to determine whether the applicant before it had a genuine fear based upon a real chance of persecution for a Convention reason.
The Tribunal did not accept on the evidence before it that the applicant was or had ever been an adherent of the local church or Shouters sect. Nor did it accept that she was baptised as a Christian, assumed responsibility for a bible study group at the factory or engaged in pamphleteering, proselytising, bible study or any other local church activities as she had claimed.
First, it had regard to what it described as the applicant's rudimentary answers to its questions in relation to the precepts and practices of the local church and her ignorance of basic doctrinal matters. In addition it had regard to her lack of contact with the local church or any other Christian church since arriving in Australia. On the basis of those matters the Tribunal concluded that the applicant was not and had never been an adherent of the local church and that she had not undertaken the activities claimed.
In making that finding the Tribunal referred to the fact that it had invited the applicant to comment on her lack of contact with any Christian church in Australia. It addressed her explanation that she had been working for 10 hours a day to support herself and did not speak English. The Tribunal found that it was not persuaded by those explanations for reasons that it gave and noted that the applicant's lack of English had not prevented her from obtaining several jobs, accommodation and accessing the services of a migration agent to prosecute her visa claims. It observed that her language limitations and social isolation would seem to provide a strong inducement to make contact with the church.
The Tribunal then found that it did not accept as truthful the applicant's claims that she was arrested, detained and ill treated by the authorities in China in August/September 2005 or at any other time because of her claimed association with the local church, her suspected religious or political beliefs or suspected membership of a particular social group or that she had departed China for the reasons claimed.
The Tribunal found that the applicant had provided a number of inconsistent claims in relation to the circumstances of her detention, treatment and the rationale for her detention at various points in the visa application and review process. In particular it had regard to statements in her statutory declaration which it found implied she was arrested on suspicion of being a member of the local church and that she refused to confess to such membership, in contrast to her indication at the hearing that the police were concerned only with extremist or subversive conduct by church members, particularly the factory owner, and had no objection to her claimed religious beliefs and the activities or membership of the local church to which she admitted.
As set out in the Tribunal decision this was one of the matters put to the applicant in the s.424A letter. The Tribunal addressed her concession that the authorities were concerned to curtail specific activities by specific church members rather than to persecute the broad membership of the church. It found that she had sought, somewhat implausibly, to present church prayer meetings and mainstream activities as within the ambit of the authorities' concern. It found that her later claim was at odds with her claim at the hearing that when distributing pamphlets in Beijing she was only pulled up one occasion and told to distribute the pamphlets elsewhere.
The Tribunal also found that its doubts about the applicant’s claim of detention and ill treatment because of local church involvement were fortified by what it described as her inconsistent accounts of her alleged ill treatment and also by her admission that after the detention and claimed abuse she was released without charge or any restriction on her movements, notwithstanding that she was a known and self confessed member of the local church.
The Tribunal found that such matters were matters about which the applicant would be unlikely to be confused. It considered her explanation in response to the s.424A letter and inconsistency in her claims as to how often she was interrogated but found such claims implausible.
The Tribunal found that the applicant gave several explanations during the hearing of her decision to leave China and the process and time frame of obtaining false documents and the manner and the assistance she obtained in travel. It found these explanations inconsistent and unconvincing. Although it accepted that the applicant’s use of false documents was at least consistent with her claim to be a person who had come to the adverse notice of Chinese authorities, it found that this did not necessarily point to persecution for Convention reasons and that viewed in the context of the whole of the evidence, the evidence of the false passport was “weak, oblique and ambiguous”.
The Tribunal was not satisfied on the evidence before it that the applicant had suffered persecution in China for a Convention reason or that there was a real chance that that would occur in the future. It was not satisfied that she had a well founded fear of persecution within the meaning of the Refugees Convention.
The particulars in the application for review clarify the nature of the error of law and lack of natural justice that the applicant relies on. She claims first that the review application was not assessed by the Tribunal properly and fairly. Insofar as this is a contention that the Tribunal failed to consider the applicant's claims, it is apparent on the material before the Court that the Tribunal did in fact consider the claims made by the applicant in connection with her protection visa application, in her written statement to the Tribunal and in the oral evidence at the Tribunal hearing as recorded by the Tribunal.
From what the applicant said today and from the further clarification in the particulars it appears that her concerns arise first from the Tribunal treatment of her response to the s.424A letter. The applicant took issue with the fact that the Tribunal invited her to comment on some of the issues arising in the review and contended that she had presented arguments and provided additional information in response to the s.424A invitation:
But that the Tribunal had almost completely ignored my arguments or additional information while it made its final decision, which made me hardly believe that the Tribunal has really considered all of my claims properly and fairly.
As clarified in oral submissions it appears that the applicant is contending that the Tribunal decision was affected by actual or apprehended bias in the sense that the Tribunal had predetermined her case prior to the s.424A letter, or at least prior to the response, or that an apprehension of bias arose in circumstances where it did not accept the explanations that the applicant provided in response to the matters put to her pursuant to the s.424A letter.
I have had regard to the principles in relation to bias and apprehended bias as set out by the High Court in cases such as Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. There is, however, nothing on the material before the Court to establish either actual or apprehended bias. It was open to the Tribunal to rely on the evidence given by the applicant during the course of the review and to have regard to inconsistencies that arose in the information provided by her at various times in the application for protection visa and the review process.
The fact that the Tribunal made adverse findings in relation to the applicant's claims is not of itself a basis for establishing bias. I note in this respect that the relevant material before the Court consists only of the applicant's claims and the Tribunal reasons for decision. Moreover the Tribunal put to the applicant a number of inconsistencies to give her an opportunity to comment on such inconsistencies. She responded and it is apparent from the Tribunal reasons for decision that it took into account such response, although it was not persuaded of the veracity of the applicant's claims by her explanations.
In particular the Tribunal addressed, on a number of occasions, aspects of her explanations which did not satisfy it, as set out above. In circumstances where it addressed the applicant's claims and raised with her the possibility of inconsistencies (which it explained may lead it to question the veracity of her claims) and considered her responses in that respect, no bias is established.
The applicant appears to be contending that the fact that the Tribunal had identified inconsistencies at the time of its s.424A letter (which it subsequently relied on in the course of making adverse findings) of itself established either actual or apprehended bias.
However the manner in which the Tribunal proceeded does not establish that it had predetermined the applicant's claims prior to the s.424A letter, consistent with its understanding of what was required under s.424A of the Act. It addressed the applicant's explanations relevant to reaching its decision. Insofar as the applicant is contending that she had put new claims to the Tribunal in her response to the s.424A letter, there is nothing to indicate that new claims were put to the Tribunal which it failed to take into account in such a manner as to constitute a failure to have regard to relevant considerations or to support the applicant's claim of either actual or apprehended bias.
Rather the response to the s.424A letter attempted to provide an explanation for claims that had already been made in relation, for example, to visits of the authorities to the factory, the reasons for the applicant's claimed detention and the circumstances of her detention. Some additional matters of clarification were raised (such as the circumstances in which she claimed that the police became aware of the involvement of the owner of the factory in the local church). However the integers of the applicant's claims as put initially and as clarified in the response to the s.42AA letter were addressed by the Tribunal in its decision. Her explanations (which attempted to reconcile inconsistencies) were precisely that and did not make fresh claims not considered by the Tribunal.
In essence the applicant's contention is that having put material to her under s.424A the fact that the Tribunal did not then accept her explanations was of itself somehow indicative of either actual or apprehended bias. Had the Tribunal had no regard whatsoever to the applicant's explanations for inconsistencies there might be some force in a contention that the decision needed to be considered closely in that respect. However in this instance the Tribunal considered her explanations, including her explanation for not being involved with any Christian church since arriving in Australia. I note in that respect that, as pointed out by counsel for the respondent, while minds may differ on whether the applicant provided a reasonable explanation for her failure to have contact with a church in Australia, merits review is not available in this Court and such findings are matters for the Tribunal, being open to it on the material before it for the reasons that it gave.
Similarly the Tribunal addressed the applicant's explanation for inconsistencies in relation to the reasons for her arrest and the concerns of the police in China but did not accept such explanations for the reasons that it gave, based on inconsistencies and implausibility. It also addressed the applicant's explanation for inconsistencies in relation to the extent of interrogation and mistreatment which she claimed, again finding implausibility and inconsistencies in her explanations. Finally the Tribunal addressed the issue of the applicant's travel to Australia and the circumstances in which she obtained falsified travel documents.
I bear in mind that when one is considering the issue of apprehended bias the perspective from which one engages in that consideration is the perspective of the hypothetical fair-minded lay person properly informed as the nature of proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. (See Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982).
It cannot be said that the Tribunal decision was unreasoned or involved mere assertion lacking any rational or reasoned foundation, or indeed that it was selective of material going only one way such as to warrant a conclusion that the fair minded lay observer might or would reasonably apprehend that its conclusions were reached with a mind not open to persuasion or unable or unwilling to evaluate all the material before the Tribunal fairly. (See in that respect the discussion by Allsop J in NADH v Minister for Immigration and Multicultural and Indigenous Affair (2004) 214 ALR 264 at [115]).
No actual or apprehended bias or other lack of procedural fairness is established on the material before the Court (see s.422B of the Migration Act 1958).
The applicant also contended that there was a breach of s.424A and of s.425 of the Migration Act 1958 (Cth). To some extent her complaint in relation to s.424A relates not to the provisions of that section but rather reiterates her claim that the Tribunal did not consider her claims fairly, a matter which I have considered. She did not particularise the information which ought to have been the subject of a s.424A notice. Rather she took issue with the fact that while the Tribunal had invited her to comment on certain information that was apparently not the information that the Tribunal used as the reason or part of reason for making its final decision. Again, this seems to take issue with the Tribunal's treatment of her response, rather than suggesting that it failed to put certain matters to her in accordance with its obligations under s.424A. It does not establish a breach of s.424A.
More generally in that respect I note that insofar as material was given by the applicant to the Tribunal in the course of the review, whether in writing or orally, the Tribunal was not under an obligation to put such information to her for comment because of the operation of the exception in s.424A(3)(b).
Insofar as the applicant might be seen to be taking issue with the Tribunal's reliance on information contained in her protection visa application (and in particular inconsistencies between her claims in the protection visa application and those made to the Tribunal) I note first the principles set out by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17] to [19]. Moreover the Tribunal did in fact put to the applicant inconsistencies in the evidence she provided at various stages for her comment pursuant to the s.424A letter of 18 September 2006 and, as set out above, had regard to her responses in that respect. There is nothing to establish that the Tribunal failed to comply with its obligations under s.424A of the Migration Act.
The applicant submitted that the Tribunal failed to comply with its obligation under s.425 of the Act because it did not give her a genuine opportunity to give evidence and present argument in relation to the issues arising from the review application. She provided no detail in support of this contention. In oral submissions she indicated that the hearing had been conducted through an interpreter, that she had no English, that it was conducted in a legal setting and that for some questions she did not really understand and was not sure of the questions. However she clarified that in fact she had answered these questions. There is no transcript of the Tribunal hearing before the Court and the concerns expressed by the applicant in oral submissions today are not such as to establish that the Tribunal failed to meet its obligations under s.425 in the manner considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47] or otherwise.
I note that the decision of the delegate turned largely on a finding in relation to the applicant's credibility and a rejection on that basis of her claim to have been a member of the local or Shouter church. In such circumstances the delegate's decision indicated to the applicant that all that she said in support of her application for review was in issue.
The Tribunal account of the hearing indicates that it closely questioned the applicant and alerted her to its concerns in relation to a number of dispositive issues, such as the nature of her claimed involvement with the local church, her claimed dealings with the authorities, the circumstances of her detention and claimed mistreatment, the circumstances of her departure from China, her involvement with any church in Australia and also the level of her knowledge of the local church practices and doctrinal matters.
In the absence of a transcript of the hearing the applicant has not established that there has been a failure to comply with s.425. Her claim today that she answered questions while not being sure about precisely what the questions were is not such as to establish that there was a failure by the Tribunal to comply with s.425.
In these circumstances the applicant's complaints take issue with the merits of the Tribunal decision. This Court cannot conduct merits review. As no jurisdictional error has been established the application must be dismissed.
The Minister seeks that the name of the first respondent be amended to read Minister for Immigration & Citizenship. It is appropriate to make such an order.
The applicant has been unsuccessful and the Minister seeks costs in the sum of $4,350. The applicant contends that this is unfair and unjust to her. However the normal principle is that the unsuccessful applicant should meet the costs of the respondent and there is nothing in the circumstances of this case to warrant a departure from that principle.
Insofar as the applicant's earlier submissions in relation to her employment situation raise a concern about lack of a stable job and hence a lack of money, the material before me is not such as to warrant a departure from the normal principle, although such matters may be matters to be taken into account by the Minister in determining when and how to seek to recover any costs. The amount which is sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment t of Barnes FM
Associate:
Date: 12 March 2008
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