SZJUZ v Minister for Immigration
[2007] FMCA 778
•7 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 778 |
| MIGRATION – Bias – apprehension of bias – applicant must prove case – attitude of presiding member claimed to breach s.425 – new material not accepted by Court – “information” does not include subjective thought processes or determinations – application rejected. |
| Migration Act 1958, ss.424A, 425, 474 Federal Magistrates Court Rules 2001, r.44.12 |
| Chen Xin He v Minister for Immigration and Ethnic Affairs, 23 November 1995, unreported VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | SZJUZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3635 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 7 May 2007 |
| Date of Last Submission: | 7 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Mr O’Brien of DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3635 of 2006
| SZJUZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 7 December 2006 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 3 October 1974 and claims to be from China and of Christian faith (“the Applicant”).
The applicant is married with two children.
The applicant arrived in Australia on 6 June 2004 on a visitor’s visa issued in Taiwan.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 20 July 2004. In this application the applicant claimed that he had to leave China illegally to escape persecution by the Chinese authorities, because of his involvement in the underground Christian church (CB 25). The applicant claimed that when he was young, his father was arrested for his involvement in the church and sent to a labour camp for three years. The applicant’s mother was then forced to join the official Patriotic Church, and when his father was released from the camp in 1986 he was also forced to join the official church (CB 26). In 1992 the applicant met a Mr. Chen, the organiser of the underground church, which the applicant joined. He became an activist for the church, spreading the gospel and recruiting new members. The applicant claims that in mid-June 1999 both he and Mr. Chen were taken to the PSB; questioned for two days, and not released until the end of June 1999 (CB 26-27). The applicant claims to have lost his job in August 1999, which gave him more time to focus on building the church with Mr. Chen. He claimed that they were often questioned by the PSB. From 2003, the applicant claimed that the PSB suspected that he and Mr. Chen were organisers of the church, but could not find any evidence. The applicant claims that in 2004 while working on a construction site he received a telephone call informing him that Mr. Chen had been arrested, and that his own name had been blacklisted. He left his hometown and went to Guangdong Province, where he remained in hiding for a year (CB 27). The applicant claimed that while there the PSB had gone to his house with an arrest warrant, and that his wife had twice been questioned by the PSB. He also claimed that twenty members of the church had been arrested (CB 28). The applicant claimed he had no other option but to escape overseas, and arranged to do so illegally with the assistance of Mr. He (CB 28).
This application was refused by a delegate of the first respondent on
24 September 2004.
On 22 October 2004 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 9 December 2004 (CB 88), at which time he maintained the claims made in his original protection visa application.
On 12 January 2005, the Tribunal handed down its decision dated
15 December 2004, affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 83). The applicant sought a review of the Tribunal’s decision by this Court, and on 25 July 2006 Federal Magistrate Lloyd-Jones set aside the decision by consent and remitted the matter to the Tribunal to be determined according to law.
On 24 October 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 116). In considering the applicant’s claims, the Tribunal found (CB 127-129.6) (emphasis added):
On the evidence before it, the Tribunal accepts that the applicant is a Chinese national.
The Tribunal found the applicant’s evidence at his hearing to be seriously lacking in credibility. When a major discrepancy in his evidence relating to his alleged arrest and detention was put to him in accordance with s424A of the Act, the applicant’s comments in response were to the effect that he was under pressure at the Tribunal hearing and had to use the services of an interpreter which caused him to have his thinking “interrupted” or “stopped”, so he made some mistakes or forgot some details. Given the substantial discrepancies in the applicant’s accounts of a key claim, he Tribunal does not accept the applicant’s explanation. More crucially, the applicant was able to demonstrate only the most limited understanding of Christianity and of the Bible texts which he claimed to have studied for some years as a member of the underground church in China, and in Australia. While the applicant presented a very brief statement by the Pastor of a Sydney church saying that he had attended the church for over 18 months, in the light of his inability to demonstrate any meaningful understanding of the bible which he claimed to have studied for a considerable time, the Tribunal formed the view that his attendance at church and his involvement with Christianity were superficial and contrived to support his claims for refugee status.
The applicant claimed that his parents and his wife are Christians, that his home was a meeting place for the underground church when he was a child, and that his father was detained in 1983 for three years for his involvement in an underground church. The Tribunal rejects these claims. The applicant displayed minimum knowledge of the bible. When asked to recount his favourite bible story, he was able to say only the name of the writer of one of the gospels (Matthew) while providing only the most minimal and confused account of a bible story. When asked whether he remembered a particular story or incident in Matthew, he said that he could not remember clearly. When given a further opportunity to speak about the bible, which he claimed to be reading regularly in Australia, he was able to display only the most limited knowledge of Genesis. The Tribunal does not accept that a person brought up in a household of Christians where Christians gathered for meetings, or a person married for ten years to a Christian would have such a limited, minimal grasp of the bible. It therefore does not accept the applicant’s claims regarding his parents’ or his wife’s Christianity or their involvement in an underground Christian church, or his father’s arrest and detention for reasons of his religion.
The applicant claimed that he worked from January 1992 for Mr Chen, an organiser of the underground church. At the Tribunal hearings he was unable to provide any meaningful detail about his claimed activities with Mr Chen on behalf of the underground church. He was able to say only that he told his friends to believe in Jesus (hearing of December 2004) or that he asked people to come to the underground church (hearing of September 2006). Furthermore, as outlined above, he was unable to demonstrate to the Tribunal a meaningful knowledge of the bible. The Tribunal therefore rejects the applicant’s claim to have worked for Mr Chen promoting an underground church in China.
The applicant claimed that he and Mr Chen were arrested and detained because of their underground church activities in either 1998 or 1999. The Tribunal does not accept this claim. The applicant’s account of his alleged arrest and detention with Mr Chen has varied substantially since his Protection Visa application. In that application, he said that they were both arrested in June 1999 and kept until the end of Jun (sic) 1999. In his December 2004 Tribunal hearing he said that he was arrested toward the end of 1998 and questioned and detained for two days. In his September 2006 hearing he gave a very confused account, at first saying that it was mid-June of 1998 that he and Mr Chen were arrested, and that they were detained for two weeks. He then said, when it was put to him that he had given 1999 as the year of his arrest previously, that is was in fact in 1999 that he was arrested, and that he was held for two weeks. When these discrepancies were put to the applicant for comment in accordance with s424A of the Act, his final account was that he was detained in 1999 (though no month is given) and held for two weeks. The Tribunal, as noted above, found his explanation for the differences in his account lacking in credibility.
The applicant claimed that since his alleged arrest and detention in 1998 or 1999, he was harassed and pursued by the police, and placed on a blacklist, and that to avoid these problems he went into hiding in various places and eventually escaped to Australia. The Tribunal does not accept these claims. The applicant’s account in the recent Tribunal hearing was vague and lacking in detail. In particular, he was extremely confused about an alleged informant in the underground church who gave information about him and Mr Chen to the police which resulted in his being wanted by them. In addition, as detailed above, the Tribunal does not accept that the applicant was a Christian in China, and rejects the associated claim that he was wanted by the authorities for his involvement in an underground church.
The applicant claimed that on his return to China he would again involve himself in Christian activities with an underground Church. The Tribunal rejects this claim, principally on the basis that it does not accept, as detailed above, that the applicant was ever involved with an underground church in China, or that he is a committed Christian who would be motivated to involve himself in underground Christian church activities in future.
The Tribunal does not accept that the applicant was ever persecuted, within the meaning of the Convention, for reasons of his religion. He has never submitted any other reason for being persecuted in the past, or for fearing persecution in the future than his religion as a Christian.
The Tribunal is required to consider whether there is a real chance that the applicant will be persecuted if he returns to China in the foreseeable future. The Tribunal has rejected as contrived and lacking in credibility the applicant’s fundamental claim to have been involved with unofficial Christianity in China, and the claims associated with this alleged involvement. While the Tribunal accepts the applicant has attended a Christian Church in Australia, it has found, on the basis of the applicant’s extremely limited grasp of the bible, that this attendance has been contrived for the purpose of supporting his claims to refugee status. The Tribunal does not accept that the applicant would be involved in Christianity, whether official or unofficial, if he returned to China in the foreseeable future. It is therefore not satisfied that there is a real chance that the applicant will suffer Convention-based persecution if he returns to China. It is not satisfied that he has a well-founded fear of persecution in China.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out two grounds as follows:
1)There was an error of law in the Tribunal’s decision constituting jurisdictional error;
2)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
1)I do not think that my application has been considered by the Tribunal, properly and fairly.
2)Especially, the Tribunal has ignored important evidences from UNHCR Handbook as follows:-
190. It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.
198. A person who, because of his experiences, was in fear of the authorities in his own country, may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.
199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify an apparent inconsistencies and to resolve and contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.
3)As I have claimed after the Tribunal’s hearing:-
During the Tribunal’s hearing, I was under huge pressure: and I could not use my own language directly to communicate with the Presiding Member but had to go through an interpreter; which, inevitably, caused my thinking interrupted or stopped from time to time; and in such a difficult situation, I had to recall those matters which had happened many years ago. So, I might have to make some mistake. For example, I was actually detained in 1999; and questioned continually from day to night for 2 days first; and then detained for about 2 weeks. However, owing to special circumstance during the Tribunal’s hearing, I might have been confused or made some mistakes or forgot some details. Sometimes, owing to huge pressure, I even felt my brain empty or even did not realize what I had said.
I understand that being arrested and detained is a central claim in my application; however, owing to strong pressure, I still could not stop making some silly mistakes; and I had to plead the Presiding Member could kindly understand my difficult situation.
I am not trying to find an excuse for my mistake. However, please understand that I am a Christian, and facing the God, I have to say that I do indeed have a real chance of being persecuted on my return; otherwise, I would not spend over two years to demonstrate my fear of persecution to the Immigration Department, to the Tribunal, to the Federal Court, etc.
4)The Tribunal has, in fact, ignored important evidences mentioned above, and I have to say that Tribunal’s decision has included a reasonable apprehension of bias.
5)Furthermore, the Tribunal failed to comply with its obligations under s.424A(1) of the Act, because the Tribunal failed to:-
- give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the above-mentioned information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
- ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and
- invite me to comment on it
6)And, the Tribunal failed to comply with its obligation under s.425 of the Act
- The Tribunal failed to create a genuine chance for me to give my oral evidence, because I was often interrupted; and also because I had been under huge pressure.
- Particularly, the Tribunal failed to clearly inform me, or ensure me, what the actual issues that the Tribunal believed to be in relation to its decision; and as a result, I could not present argument against the issues.
7)In summary, I have never believe that my review application ahs been assessed by the Tribunal, fairly and properly.
Findings as to the grounds in the application
Ground 1 alleges a jurisdictional error by the Tribunal. The applicant was invited by the Court to put further submissions in support of his application but declined to do so. The Court has considered the applicant’s submissions filed on 23 April 2007 and finds that nothing has been put to the Court to establish this ground. It is rejected.
Ground 2 alleges procedural error and a denial of natural justice. Particular 1 alleges bias. Nothing has been put to the Court to establish these claims and they are rejected. The Court refers to the reasons for rejecting particular 4 below and applies those reasons to this particular.
Particular 2, which appears to be particulars of both grounds of the application, quotes material from the UNHCR Handbook which the applicant claims was ignored by the Tribunal. The decision of the Tribunal shows that this claim is baseless. The decision of the Tribunal as constituted first, refers at length to the UNHCR Handbook in its decision at CB 91 as follows:
The Tribunal accepts that: “applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.” The Tribunal also accepts that: “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” (The United Nations High Commissioner for Refugees’ Handbook on Procedure and Criteria for Determining Refugee Status, Geneva, 1992 at para. 196). However, the Handbook also states (at para. 203): “The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”
It is for the Tribunal not only to consider the inconsistencies but also to determine what evidence it finds credible (Nicholson J. in Chen Xin He v MIEA, 23 November, 1995 (unreported) at p.11). The Tribunal does not have to accept uncritically all statements and allegations made by an applicant. (Beaumont J in Randhawa v MIEA, 124 ALR 265 at p.278). “The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for reasons of political opinion…[it is] for the Applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.” (MIEA v Guo and Anor (1997) 144 ALR 567 at 596).
The Court finds that the Tribunal did not ignore the content of the Handbook. The Tribunal as constituted for the second hearing is taken to have been aware of those difficulties as the Tribunal stated at CB 119 that the:
Tribunal also has before it the Tribunal file (N04/50080). It has also had regard to the material referred to in the delegates decision.
The Tribunal was sensitive to the difficulties faced by an applicant. This particular is rejected.
Particular 3 is a restatement of particular 2 and is rejected for the reasons expressed in relation to particular 2.
Particular 4 alleges that the Tribunal ignored evidence and gave grounds for a reasonable apprehension of bias. The test for a reasonable apprehension of bias was stated by the High Court of Australia in Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 179 ALR 425 at para.27 as follows:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
Nothing has been put to the Court to establish these claims and they are rejected.
Particular 5 alleges that the Tribunal failed to comply with s.424A(1) of the Migration Act. A s.424A(1) notice was given for the purposes of the Tribunal hearing (CB 106). The Court finds no breach of s.424A(1).
Particular 6 alleges a breach of s.425 of the Migration Act. Section 425 provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
An invitation to appear was sent to the applicant (CB 97). The response by the applicant is at CB 99-105. The Court finds that s.425 was complied with. The applicant alleges that he was under huge pressure and was not able to present his arguments. There is no evidence to support this contention. A transcript of the Tribunal hearing has not been tendered to the Court and there is nothing before the Court to say that a complaint was made to the Tribunal by the applicant. The decision of the Tribunal shows that the applicant was able to present his arguments. It is for the applicant to prove his case: MIEA v Guo & Anor (1997) 144 ALR 567 at 596. This allegation is rejected.
Particular 7 alleges bias. For reasons expressed previously this allegation is rejected.
Findings as to the applicant’s written submissions
The applicant claims that the Tribunal considered that his experiences in 1998-1999 were his “central claim” and states that his claims cover his experience from 1974-2004.
The Court finds that the s.424A letter stated that the applicant’s experiences in 1998-99 was “a central claim in that it is the only time you claim to have been arrested and detained.” In response to that letter the applicant stated “I understand that being arrested and detained; it is a central claim in my application”. The applicant therefore agreed with the Tribunal.
Further, the Tribunal’s ‘Findings and Reasons’ do not refer to that being his central claim. Even if they did, that was a conclusion properly open to the Tribunal on the material before it, including the agreement by the applicant that “it is a central claim in my application.”
The applicant complains that his “experience since 1999 is my central claim”. The Tribunal made many references to the applicant’s experiences since 1999 (CB 121.3, 122.1, 122.3, 124.7, 124.9, 125.2). It is apparent that the Tribunal had regard to the experience after 1999.
The applicant complains that if his experience since 1999 was treated as his central claim it would have given different answers to “the central questions arising from the Department’s (sic) decision at CB 37-43”. The decision referred to is the decision of the delegate. That decision is not open to review in these proceedings. That complaint is dismissed.
The applicant then restated his central claims in his written submissions in paragraph (c) on page 2 of his submissions. That restatement of the central claims is new material that was not before the Tribunal. Therefore it cannot be accepted by the Court as part of the applicant’s case.
The applicant claims that the Tribunal breached s.424A by not putting to him its conclusions about discrepancies it found concerning his religious knowledge and his claimed underground religious activities.
The word “information” in s.424A does not encompass the Tribunal’s subjective appraisals, thought processes, or determinations: Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 at [54], SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [24], VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at para. [5] of the supplementary reasons delivered on 6 February 2007. The Tribunal’s conclusions about discrepancies are not “information” for the purposes of s.424A. The Court finds no breach of s.424A.
Further claims of a breach of s.424A are then made, being that matters other than those concerning central claims, needed to be put to the applicant.
Insofar as ground 2(c) is intended to be a statement of the law, it is correct. However no alleged breach of s.424A is particularised and ground 2(c) is rejected.
Ground 2(d) alleges an unparticularised breach of s.424A and is not made out. It is rejected.
Ground 3 alleges that s.425 was breached as the “strong pressure and attitude of the Presiding Member prevented the applicant from having a chance to put his case”. The Court finds that the Tribunal complied with s.425 by inviting the applicant to the hearing (CB 97). The applicant appeared before the Tribunal on 19 September 2006 to give evidence and present oral arguments. The Court finds no breach of s.425.
The applicant appeared at the hearing on 19 September 2006 and was represented by his migration agent (CB 119.3). The evidence presented at that hearing is recorded at CB 121.10-125.9. A transcript of the Tribunal hearing has not been tendered to the Court. It is for the applicant to establish his case; a decision maker is not required to make the applicant’s case for him: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Lu & Anor v Renevier (1989) 91 ALR 39 at 45. There is nothing to show that the applicant was not given a chance to put his case. This ground has not been made out and it is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
This is an application to show cause and has been listed for final hearing. The Court is not satisfied that the application has raised an arguable case. The Court is satisfied that the respondents have shown cause why orders should not be granted for the relief claimed.
Accordingly, the application is dismissed pursuant to rule 44.12(1)(c).
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Turner FM
Deputy Associate: Mary Giang
Date: 22 May 2007
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