SZJWA v Minister for Immigration
[2008] FMCA 30
•24 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 30 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal decision affected by jurisdictional error – fact finding not a function of judicial review – weight – no breach of procedural fairness. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), s.5, s.36, s.65, s.91, s.424A, s.425 |
| Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361 |
| First Applicant: | SZJWA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3721 of 2006 |
| Judgment of: | Orchiston FM |
| Hearing date: | 10 December 2007 |
| Date of last submission: | 10 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3721 of 2006
| SZJWA |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 9 November 2006, and notified to the applicant by letter dated 23 November 2006, which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 29 April 1955 and was aged 51 years at the time of the application for a protection visa.
The applicant claims to be a citizen of China (PRC), of Han ethnicity and Christian faith. His wife remains in China. Their son, born 10 November 1983, resides in Australia with the applicant.
The applicant arrived in Australia on 28 May 2006 and applied to the Department of Immigration and Multicultural Affairs (“the Department”) for a protection (Class XA) visa on 7 June 2006. The applicant’s son was included in the application as a member of the family unit, but is not a party to the present proceedings before this Court.
In his protection visa application, the applicant claimed that he had been persecuted by the Chinese authorities because of his Christian faith, and had been detained and abused by the police on two separate occasions (Court Book (CB) 33).
The delegate refused to grant the visa on 10 July 2006 (CB 38) on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
The applicant applied to the Tribunal on 7 August 2006 for review of the delegate’s decision (CB 51).
Legislative framework
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.
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 the 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
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 particular 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.”
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 7 September 2006 the applicant appeared before the Tribunal to give evidence and present arguments. At the hearing, the Tribunal had before it the Department’s file relating to the applicant, material referred to in the delegate’s decision and other material available to it from a range of sources.
The applicant’s claims and evidence (CB 102-111)
The applicant claimed to fear harm from the Chinese government for reason of his membership of a Christian home Church. The applicant claimed that he left China to escape persecution from the Chinese government and to practice his Christian beliefs. He claimed that in China any member of a Christian house Church will be detained, beaten and penalised at random if they gather and worship at premises unregistered, or unapproved of, by the government.
He claimed to have lived at the same address in China for 18 years in a home purchased by him and to have been involved with the family Church for 3 years.
He claimed that due to his involvement in the home Church he was detained twice in 2005 by the public security bureau. On the first occasion, on 16 January 2005, he and 19 other believers held a congregation in a private home when the police broke in and arrested all the believers including the applicant. He stated that he was detained and slapped but released the next day without being charged with an offence, fined, or needing to attend a hospital. He stated that his son was not staying with him at the time as he was in Australia as an overseas student.
On the second occasion, on 20 November 2005, he claimed that 16 members of another congregation in a private home were detained by police. He claimed he was interrogated, beaten and kicked, and forced to sign a statement renouncing his membership of the Family Church against his will. He stated that his wife paid a fine to secure his release from the detention centre and that he was released three days later. He was not charged with a criminal offence, nor did he need to attend a hospital. He said that his son was also not staying with him at the time as he was at school in Australia.
A Departmental case note dated 1 July 2003 indicated that the applicant applied for a three month visitor visa to visit his son in Australia. He claimed to be the General Manager of Chongqing Junmin Materials Co Ltd a trading company, with his wife as a partner, which dealt with chemical products and from which he provided evidence of funds. Movement records show the applicant arrived in Australia on 28 May 2006 holding a visitor visa Subclass 676. He had previously been granted a Subclass 676 visa on 6 August 2003, and entered Australia on 25 October 2003 and departed on 15 November 2003.
The applicant said that he could leave China without trouble because the Chinese government failed to realise he was still an active home Church member. He claimed that he is a Christian and as such, needs to do the worship services to live as a Christian and in order to do so, he would give up his business and his fortune.
The applicant claimed he was baptised on 18 July 2004, although he had no baptism certificate, and that he was an ordinary member of the Church in China. The applicant said that neither his wife nor his son is a Christian. His son is an overseas student in Australia who at the time was due to graduate in 2006 or early 2007.
He claimed that immediately upon his arrival in Australia on 28 May 2006, he began attending the Evangelical Free Church of Australia and has never been absent from Sunday worship since. The Tribunal indicated to the applicant that there was no statement by the pastor about the applicant’s attendance at the Australian Christian Church, nor was the pastor present at the hearing.
In regard to his claims, the Tribunal asked the applicant questions including whether his son was staying with him in China at the time of the two incidents in 2005; whether he spoke to his son about the incidents and when, and to what extent; whether they were matters that one might expect he would discuss with his son; and why he waited so long before he got a visa.
The Tribunal also noted that the applicant’s son was not present at the hearing. The applicant stated that his son is influenced by him and is in great fear.
The applicant further stated that he was not on a blacklist nor kept under strict surveillance in China but that if he returned, he would attend a Family Church and would risk being arrested and sent to labour re-education as he had been arrested twice before.
s.424A letter (CB 111-112)
Following the Tribunal hearing, the applicant was sent a s.424A letter dated 3 October 2006 (the s.424A letter) (CB 74-79) indicating that the Tribunal “has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.” This information included:
· Information included in the applicant’s visa application, including information relating to his son.
· Information contained in his passport and visitor visa applications.
· Case notes concerning the applicant’s visitor visa applications.
· Movement records of the Department which showed his travel and the travel of his son.
· Evidence the applicant gave during the Tribunal hearing.
· Country information concerning the situation of the Protestant home churches in Sichuan from 2003 to the present.
On 15 October 2006 the applicant provided the Tribunal with further information (CB 80-95), including claims, comments, and country information as well as a letter dated 12 October 2006 from Reverend Simon Sim of the Evangelical Free Church of Australia indicating that the applicant had been an active adherent of the church since 4 June 2006, that he attended weekly worship services, prayer meetings and monthly Bible study groups, and that he was a genuine Christian who practises what he believes.
The Tribunal summarised the material provided to the Tribunal by the applicant in response to the s.474A letter, including Reverend Sim’s letter mentioned above, the reasons given by the applicant as to why he did not mention his son’s presence in China during the two incidents in 2005, and country information (CB 111-112).
The Tribunal’s findings and reasons (CB 112-123)
The Tribunal summed up the applicant’s claims that he fears persecution in China as follows:
· He is a Protestant Christian who wishes to worship at an unregistered (‘Family Church’) Church in Sichuan Province. If he attends and worships at the Family Church, he faces real risk that the Chinese authorities will raid the Church and arrest the participants including himself.
· He has been arrested twice before in 2005 when he attended the Family Church congregations and so may face imprisonment if arrested again.
After carefully considering the evidence, the Tribunal accepted that the applicant follows the Christian religion and found that the applicant is a Christian. Further the Tribunal accepted that the applicant attended an unauthorised congregation in Sichuan Province before he travelled to Australia. The Tribunal accepted that the applicant was an ordinary member of the Church and attended the Church to pray, read the bible and give testimony.
The Tribunal considered that at the hearing the applicant was not able to provide a “cohesive narrative” concerning his claims of persecution and his son’s travel and residence in China at the time of the claimed persecution. It found that:
“the lack of a cohesive narrative, despite the significance of the claimed events, the applicant’s detailed recall of the actual incidents, and the reasonable concern for his wife and son he would have felt at the time of the incidents, led the Tribunal to conclude that the incidents had been fabricated.” (CB 116).
The Tribunal further commented on the way in which the applicant’s evidence “evolved” during the hearing and was “not convincing”. After carefully considering the evidence cumulatively, the Tribunal did not accept that the claimed persecution occurred in 2005. The Tribunal further noted that “the length of time before he applied to get a visa to Australia, does not support the applicant’s claim that he fled China with the fear of persecution” (CB 118). Accordingly the Tribunal did not accept that the 2005 incidents in fact occurred. It did not therefore accept that the applicant suffered serious harm in China for a Convention reason.
The Tribunal then considered the issue of future harm to the applicant if he were to return to China in the context of its having accepting that the applicant is a Christian and an ordinary member of an unauthorised church. After carefully considering the country information, the Tribunal concluded that since 2003 there have been no specific reports of ordinary church members arrested whilst worshipping at unauthorised house churches in ChongQing City. It commented that the general country information also shows that those Christians who have come to the attention of the authorities and the reporting organisations in Sichuan generally, and who have been jailed, have largely been house Church leaders and pastors and not ordinary house Church attendees (CB 121). The Tribunal found that the applicant had a “low profile as a Christian in China and that the applicant had little involvement in Church affairs other than the active attendance for religious worship and discussion in unauthorised gatherings” (CB 121).
The Tribunal found that the applicant had no difficulty leaving China and was not of particular interest to the authorities when he departed. It further stated that the applicant’s travel to Australia and return to China after he had commenced attending Home Church gatherings in China, shows that he had no fear of persecution in China at that time because of his attendance.
The Tribunal found that the applicant had not come to the attention of the authorities in China and did not have an official record of being arrested and detained whilst attending unauthorised gatherings. The Tribunal therefore did not accept the applicant’s claims that he had been arrested twice before in 2005 when he attended Family Church congregations, and that he may face imprisonment if arrested again. The Tribunal was not satisfied that the applicant, as an ordinary church member, faced a real chance of suffering persecution should he return to China and attend unauthorised gatherings in his home city as he has done in the past.
In conclusion, the Tribunal was not satisfied that the applicant suffered past harm, let alone persecution for reasons of his religion, political opinion, membership of a social group of unauthorised Church attendees, or for any other Convention-related or other reason. Having carefully considered the applicant’s claims individually and accumulatively, and all material before it, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason, now or in the foreseeable future, if he were to return to China.
The proceedings before this Court
The applicant filed the application and affidavit in support of his application (the applicant’s affidavit) in this Court on 13 December 2006 setting out 4 grounds for review of the Tribunal decision. On 27 August 2007 he filed an amended application which set out 3 grounds of review.
The applicant appeared in person before this Court on 10 December 2007 with the assistance of a Mandarin interpreter. Mr Reilly, of counsel, appeared for the first respondent.
Whilst the applicant confirmed at the hearing that he relied on his amended application, the Court nonetheless invited him to say anything he wished to in regard to both the grounds of his original application and his amended application, and generally, given that he was not legally represented. Each of these grounds was translated for the applicant, prior to his being invited to say anything on each.
Grounds of Application
The grounds of the application are:
i)I am a House Church Member from China
ii)I have been persecuted by the Chinese government for my House Church activities.
iii)I am too scared to go back to China.
iv)The RRT ignored the above facts and give rise to legal error.
Grounds 1, 2 and 3 of the Application
I note that no particulars of grounds 1, 2 and 3 have been provided. It is clear that these grounds are not proper grounds for review. Ground 1 sets out a mere statement of fact claimed by the applicant which was indeed accepted by the Tribunal. Grounds 2 and 3 set out mere statements of claim which repeat the claims made by the applicant to the Tribunal. They therefore do not in themselves identify any legal grounds of review.
Accordingly, Grounds 1, 2 and 3 of the application are rejected.
Ground 4 of the Application
It is clear that ground 4 must be read in conjunction with grounds 1, 2, and 3 above. Again, no particulars of ground 4 have been provided to explain how the Tribunal is said to have ignored, mischaracterized, or failed to address these important matters in the applicant’s claims. Further, no evidence by way of transcript of the Tribunal proceedings has been put before the Court by the applicant on the point.
I accept the written submission by the first respondent that the Tribunal carefully summarised the claims made by the applicant at various stages of the review application and had explicit regard to the material the applicant provided in his protection visa application (CB 102–104), the typed statement accompanying his protection visa application (CB 104), the statement attached to his Tribunal application (CB 105), the oral evidence he gave during the Tribunal hearing (CB 106), the response he provided to the s.424A letter (CB 112) and the documents provided with the applicant’s response to the s.424A letter (CB 112).
Furthermore, I am satisfied that a fair reading of the Tribunal’s decision demonstrates that the Tribunal carefully considered each of these claims and the evidence of the applicant. Indeed, far from ignoring the applicant’s claims, it is clear that these matters were critical to the Tribunal’s deliberations. In this regard, the Tribunal accepted the applicant’s claim that he is a House Church member from China. However, it found that the applicant had fabricated the two key incidents of alleged persecution of 16 January 2005 and 20 November 2005 (the 2005 incidents). It did not therefore accept that the applicant had been persecuted by the Chinese government for his House Church activities as claimed by the applicant. It was therefore not satisfied that the applicant has a well founded fear of persecution for reasons of his religion.
In regard to the 2005 incidents, the applicant’s inability to provide a “cohesive narrative” about the incidents in 2005 and his “lapse of memory” regarding whether his son was residing in China at the time of the events, led the Tribunal to conclude that he had fabricated these incidents. The Tribunal’s finding in this regard relied partly upon Departmental movement records regarding the applicant’s son (CB 114-114). These movement records were discussed with the applicant during the hearing and the Tribunal clearly raised its concern that the movement records indicated that his son was residing in China at the time of the incidents (CB 108-110).
The son’s movement records were also disclosed in the s.424A letter sent to the applicant. The Tribunal explained that the movement records showed that the applicant’s son was outside of Australia during the 2005 incidents and given the applicant’s inability to recall this until later in the hearing, the information indicated that the 2005 incidents did not occur and hence the applicant had not been arrested and detained twice as claimed by him (CB 76). I am satisfied that the Tribunal thereby clearly explained the relevance of this information to the review in a manner that the applicant could understand as required of it by s.424A(1)(b) of the Act. I am further satisfied that it set out clearly and with sufficient particularity, the information that was likely to lead to affirmation of the delegate’s decision: (Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [10]).
In response to the s.424A letter, the applicant, through his representative, provided an explanation for the applicant’s inability to remember the dates at which time his son was at home in China, and for the applicant’s inability to present his claims in a “coherent and plausible manner” due to his past trauma and the stressful atmosphere of the hearing (CB 82).
The Tribunal clearly gave consideration to this explanation by the applicant in response to the s.424A letter, but was ultimately not persuaded to accept it for the reasons it gave, including the “evolving nature of the claims”, and “the lack of a cohesive narrative” (CB 117).
In the applicant’s affidavit he claims that the Tribunal accepted he was a Christian but ignored the future persecution he may face if he were to return to China. Some of the matters relevant to this assertion have already been dealt with above. I consider that the Tribunal clearly gave comprehensive consideration to this issue, in particular, under the heading, “Future Harm in China” where it assessed the personal circumstances of the applicant in light of its own country information and that provided by the applicant (CB 118-122).
The Tribunal concluded, in this regard, that the available country information indicated that in the time since the applicant had first joined a congregation, there had been no specific reports of ordinary Church members as opposed to leaders or pastors being arrested whilst worshipping at unauthorised house Churches in ChongQing city (CB 121). I consider that this finding was open to the Tribunal for the reason it gave. The assessment of country information is a matter for the Tribunal and the Tribunal was not required to accept claims that were inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality: (NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8]; Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451). No error of law is thereby disclosed.
On this basis, as outlined in the first respondent’s written submissions, the Tribunal concluded the applicant would not face future harm if he chose to worship as an ordinary member of an unauthorised Church in his home city (CB 121). This conclusion by the Tribunal was supported by the applicant’s own evidence that he departed China using his own passport, a copy of which was provided to the Tribunal so as to fall within the exception contained in s.424A(3)(b). This indicated he was not of particular interest to the Chinese authorities when he departed China (CB 121).
I consider therefore that the assertion of future persecution in the applicant’s affidavit has no proper basis. I am satisfied that the Tribunal gave thorough consideration to whether the applicant had suffered persecution in the past and to whether he would be at risk of persecution in the future.
In conclusion, I am satisfied that the Tribunal rejected the applicant’s claims after considering all the evidence, including the independent evidence, in reaching its conclusions concerning the applicant’s lack of credibility. The Tribunal’s conclusions that the applicant was not a witness of credit were findings of fact par excellence:
“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.” (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
I am satisfied that the applicant is, in effect, inviting the Court to undertake a review of the merits of the Tribunal decision. It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law (Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24]). Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137]).
Simply put, this Court cannot review the merits of the Tribunal’s decision, as observed by the Court in Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558:
…it is not open to the applicant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
I am also satisfied that the Tribunal clearly identified as discussed above the determinative “issues arising in relation to the decision under review” and gave the applicant ample opportunity to give evidence and make submissions and to respond to the s.424A letter in relation to these issues before reaching its conclusions. In this regard, I consider that the Tribunal accorded the applicant procedural fairness as required of it pursuant to s.425(1) of the Act: SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63 at [33]-[48]. I accept the first respondent’s submission in this regard.
In conclusion, on all the evidence before the Tribunal, including the country evidence provided by the applicant himself, I consider that it cannot be said that the Tribunal ignored the matters set out in grounds 1, 2 and 3 in reaching its conclusions. I am satisfied that it was open to the Tribunal to reach the conclusions it did and that it performed the task required of it in accordance with the law. I am satisfied that no jurisdictional error is thereby disclosed.
Accordingly, Ground 4 of the application is rejected.
Grounds of amended application
The Grounds of the amended application are:
1. The Tribunal fell into jurisdictional error taking into account evidence that was incorrectly translated and subsequently placed too much weight on the incorrectly translated material.
Particulars:
The Tribunal considered evidence from Asia News CB 118.23) which was incorrectly translated and which placed incorrectly the emphasis on church leaders rather than followers of the home church.
2. The applicant was denied procedural fairness when the Tribunal reached conclusions based on an incorrectly translated internet article.
Particulars:
The material considered by the Tribunal CB 118 which was incorrectly translated places the emphasis on the wrong class of person whereas the Mandarin version of the article reports on ordinary members of the home church being arrested the English version only reports on leaders being arrested.
3. The Tribunal failed to give sufficient weight to the evidence of the Applicant.
Particulars:
The Tribunal failed to consider or failed to properly consider the evidence of the applicant about his future fears.
Grounds 1 and 2 of the amended application
I consider that grounds 1 and 2 of the amended application effectively traverse the same ground and hence I will consider them together.
Grounds 1 and 2 assert that the Tribunal relied on an incorrect downloaded English translation of an article which appeared on the AsiaNews.it website in the Mandarin language on 10 July 2006 (the Mandarin article).
In support of these grounds, the applicant has provided affidavit evidence from Mr Kekang Li, a NAATI qualified Mandarin translator, who provided his own English translation of the Mandarin article (Annexure “A” of his affidavit) and annexes the downloaded English translation on which the applicant claims the Tribunal relied (Annexure “B” to his affidavit).
Mr Li points (at paragraph 2 of his affidavit) to the following difference in translation between the use of the word “leaders” (in Annexure “B”) and “followers” (in the Mandarin article) at paragraph 7 of each.
The downloaded English version provides:
“meanwhile, seven out of thirty leaders arrested on 28 May are still in custody.” [ highlighting added].
Mr Li’s translation provides:
“meanwhile, seven out of thirty Protestants arrested on 28 May were still in custody.” [highlighting added].
Mr Reilly submits that it is not entirely clear what the mistranslation is or where it is said to have occurred in a document referred to by the Tribunal. Mr Reilly further submits that even if the applicant can establish some mistranslation in a document that the Tribunal relies on, it would establish nothing more than a possible wrong finding of fact by the Tribunal, not jurisdictional error.
The applicant submits that the incorrect translation relied upon by the Tribunal, placed a wrong emphasis on the leaders being arrested, as opposed to the ordinary members of the House Church.
The reference by the Tribunal to country information (at CB 118) however, does not support the view that the Tribunal placed any such incorrect emphasis on the newspaper articles. The Tribunal states:
An AsiaNews article reported on 10 July (amongst other things) that: The CAA drew attention to an intensifying clampdown on unofficial Protestants who belong to house churches across the country. On 6 July [2006], police in Langzhong, in Sichuan, arrested Pastor Wang Shixiu while she was shopping…(‘CHINA: China condemns six Protestant pastors to death without proof’).
Indeed, the Tribunal’s reference to the above article makes no specific reference to “leaders” being arrested at all. It talks about “an intensified clampdown on unofficial Protestants who belong to house churches across the country” which is consistent with the translation provided by Mr Li. The reference by the Tribunal thereafter to Pastor Wang Shixiu being arrested on 6 July 2006 is again common to Mr Li’s translation. Further, the final quote in parenthesis (‘CHINA: China condemns six Protestant pastors to death without proof’), is again consistent with the headline of Mr Li’s translation.
Taking the matter at its highest that there has been a mistranslation as alleged by the applicant, there is simply no evidence that this particular downloaded translation was, in fact, the version relied upon by the Tribunal. I accept the submission by Mr Reilly in this regard.
At its highest there could only be a complaint that country information relied upon by the Tribunal was wrong. However, the Tribunal’s choice and assessment of such country information is a purely factual matter for it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
Ground 1 of the amended application also asserts that the Tribunal placed “too much weight” on this incorrect translation of the country information. It is clear, in this regard, that the Tribunal considered a large amount of country information, including some provided by the applicant. This one article from the AsiaNews service was clearly considered by it against a wider context of country information. What weight the Tribunal gave to any one of these articles, is ultimately a factual matter for it: (NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]).
Ground 2 of the amended application also asserts that the applicant was denied procedural fairness by the Tribunal by its reliance on the incorrect translation. The applicant is not, however, entitled to common law procedural fairness: s.422B. There is no evidence to establish this assertion, in particular, to demonstrate that the incorrectly translated version was the version in fact considered by the Tribunal. In any event, I accept the submission by the first respondent that it cannot be a breach of procedural fairness for the Tribunal to rely upon information that may later be shown to be incorrect, in the absence of any suggestion that the Tribunal knew or should have known that such information was incorrect.
Accordingly Grounds 1 and 2 of the amended application are not made out.
Ground 3 of the amended application
This ground simply seeks merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The weight given by the Tribunal to evidence is a matter for it: Peko-Wallsend Ltd at 41 per Mason J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
For these reasons, Ground 3 of the amended application is rejected.
The applicant’s oral submissions,
Before this Court, the applicant said nothing further in regard to each of the specific grounds in his application and amended application, except to say generally that:
“…in year 2003 I joined Home Church in China and I was baptised in July 2004 and in year 2005 there is two occasions I was detained because I participate those activities in Home Church, once is in January another is in November. And I was tortured and I was fined. I was persecuted. The main purpose I came to Australia is to lead a life as a real and a true Christian. I can freely practise my religion. If I have to return to China I must again participate the activities in Home Church and again … I will not be away from the persecution from the government. So I hope I can get sympathy and support from this Court and put my case back to RRT to have another hearing. … I have been in Australia for one year and a half and my business in China is nearly gone and here because my language problem I cannot get a job so I don't have any income here and the money I brought with me is nearly gone. I also have this financial problem now.
I consider that the above matters raised by the applicant either do not disclose any legitimate grounds for review by this Court, or merely reiterate the applicant’s claims rejected by the Tribunal and over which this Court has previously found (at ground 4 of the application) that no jurisdictional error is disclosed.
Conclusion
The Court finds that 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.
The application and amended application before this Court are dismissed.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 24 January 2008
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