SZJYE v Minister for Immigration
[2007] FMCA 769
•2 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 769 |
| MIGRATION – Bias not established – nor grounds for an apprehension of bias – extent to which Tribunal relies on country information is a matter for it. |
| Migration Act 1958 (Cth), ss.91R, 424, 424A Federal Magistrates Court Rules 2001 rr.44.11, 44.12 |
| SAAP v Minister for Immigration and Multicultural and Indigenous and Ethnic Affairs [2005] HCA 24 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Re Refugee Tribunal & Anor; ex parte H (2001) 179 ALR 425 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZJYE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3911 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 2 May 2007 |
| Date of last submission: | 2 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms. B. Nolan |
| Solicitors for the Respondent: | Ms. A. Christie-David of Clayton Utz |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3911 of 2006
| SZJYE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 28 December 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 17 November 2007 and handed down on 12 December 2006, 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 filed an amended application on 29 March 2007. The applicant was invited to make submissions to the Court but has not added any grounds to her application.
The applicant was born on 17 March 1964 and claims to be from and of Chinese ethnicity and Catholic faith (the “applicant”).
The applicant’s husband and son remain in China.
The applicant arrived in Australia on 13 May 2006 on and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 1 June 2006. In this application she claimed that she was a member of an underground Catholic church in China and feared persecution from the Chinese authorities. The applicant claimed that she was questioned by the police on two separate occasions (CB 19).
This application was refused by a delegate of the first respondent
12 July 2006 (CB 63).
On 16 August 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 75). The applicant gave oral evidence before the Tribunal on
17 October 2006 (CB 106), at which time she maintained the claims made in/her original protection visa application.
On 17 November 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 111-3) (emphasis added):
The applicant claims to fear persecution from Chinese government authorities because she is a Catholic and has worshipped at an underground Catholic Church in Guangxi Province. She claimed that she had been harassed and questioned by the local PSB before she left China and that her husband and sister had been detained and questioned after she left China. She claims that she will be mistreated by Chinese authorities for reasons of her religious beliefs if she were to return to China.
I have considered the claims set out in the application for a protection visa and the application for review, the oral evidence given at hearing and the documents given to the Tribunal in support of the claims.
I am required to determine whether the applicant has a well founded fear and if so whether what she fears amounts to persecution for a Convention related reason. My task is to consider all the evidence, make findings on material questions of fact and then to give reasons for my decision.
I accept that the applicant is a citizen of the People’s Republic of China (China).
I accept that the applicant was born and educated in Guilin City in Guangxi Province of China and her parents, husband and son continue to live in Guilin City. I accept that the applicant has worked in various jobs in China and that her last job was in a company producing tourist products.
The applicant gave me her passport at hearing. The information in that passport and the evidence given by the applicant at hearing indicate and I accept that the applicant obtained a Public Affairs passport from the Ministry of Foreign Affairs and that she left China and travelled to Australia on that passport which held a temporary business visa for Australia.
I do not accept that the applicant is a Catholic or has any Catholic religious beliefs. I do not accept that she was a member of an underground Catholic Church in Guilin City. The applicant could not adequately or plausibly explain why she became interested in becoming a Catholic. She had no other family members who were Catholics or who belonged to any other Christian denomination. She was not able to explain or describe any beliefs or practices particular to the Catholic faith. She did not refer to the Pope or the Vatican when I asked her about leadership and location of the headquarters of the Catholic Church. Her evidence was full of generalities regarding spirituality and joyfulness however she was not able to describe in any detail sacraments, activities or practices which would indicate that she had attended church or any study sessions in China. Her evidence regarding baptism was confused and lacking in understanding of the significance of baptism in Catholic belief and practice. She told me that all Christian churches were the same. She was not aware that there were different Christian churches or groups which had different practices and beliefs from each other. She claimed that other than the church of which she was a member there were no other Catholic churches in Guilin City despite country information put to her at hearing which suggested that there is an official Catholic church in Guilin.. Despite claiming a strong commitment to the Catholic faith which caused her to leave her home in China the applicant has not attended a Catholic Church in Sydney and has only visited a church in Campsie of a different Christian denomination.
As I do not accept that the applicant is a Catholic and a member of an underground Catholic church I do not accept that she suffered any harassment or questioning by PSB officials in Guilin City for reasons of her membership of an underground Catholic Church.
I also do not accept that her husband or sister were arrested and questioned by officers of the PSB after the applicant departed for Australia in May 2006. The applicant told me at hearing that she had not previously made this claim before the hearing and I consider that she fabricated this evidence at hearing in response to my proposition that she had not been mistreated or harmed in any way by Chinese authorities because of her claimed Catholic beliefs.
I am supported in my finding that the applicant is not a Catholic by the evidence given to the Tribunal that she departed China on a Public Affairs passport without any restriction at the international air terminal. I consider that if the authorities had any adverse interest in the applicant she would not have been issued with a Public Affairs passport and she would not have been able to depart China freely and without restriction.
I have considered the document in Chinese script read out to me at hearing, however, as I put to the applicant the country information indicates that it is relatively easy to obtain false documents in China and in the overall context of the evidence I have given that document no weight.
Accordingly and taking all the above into account I do not accept that the applicant is a Catholic or has any Catholic beliefs and therefore she does not face a real chance of persecution for reasons of religion if she were to return to China now or in the foreseeable future. I am not satisfied that the applicant has a well founded fear of persecution for any Convention based reason.
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 her application, the applicant set out five grounds as follows:
(1)The Tribunal had bias against me and could not accept my claims of my application for a protection visa without giving sufficient evidence and materials.
(2)The Tribunal failed to consider my application according to s.91R of the Migration Act because of the bias against me.
(3)The Tribunal failed to refer to sufficient independent information for the consideration of my application.
(4)The Tribunal failed to carry out is statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application according to s.424A of the Migration Act 1958.
(5)A copy of the decision letter is attached.
In her amended application, the applicant set out the following grounds and particulars:
(1)The Tribunal had bias against me and did not believe my claims without giving sufficient evidence. The Tribunal therefore failed to consider my application according to s.91R of the Migration Act 1958.
(2)The Tribunal did not refer to sufficient independent information for the consideration of my application because of the Tribunal’s bias towards me.
(3)The Tribunal failed to carry out is statutory duty. The Tribunal failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958.
Particulars
(a)The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b)The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision: Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c)The above particulars had to be provided in writing: SAAP v Minister for Immigration and Multicultural and Industrial (sic Indigenous) and Ehthnic Affairs [2005] HCA 24 (18 May 2001).
McHugh J.
Para 68 “…the assumption that no breach of s 424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision (sic section). Nothing in the section suggests that fairness in the way in which the tribunal observes its statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the tribunal is required to take in every case. Further, the mandatory nature of the obligation in s 424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s 424A.”
Para 77 “…If the requirement to give written particulars is mandatory, then failure to comply means that the tribunal has not discharged its statutory function…it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act…a decision made after a breach of s 424A is invalid.”
Hayne J
Para 180 “I consider that the tribunal was bound to give the appellants written notice of that information and to ensure, so far as reasonably practicable, that the appellants understood why it was relevant to the review. The tribunal’s failure to do so constituted jurisdictional error.”
Para 208 “…Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
(d)The information to be given extends to that information given by the Appplicant to the First Respondent as part of his application for a visa.
Minister for Immigration and Multicutlural Affairs v Al Shamry (2002) (sic 2001) 110 FCR 27
Para 17 “…In our view, "applicant" wherever appearing in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and "application" correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The Court did not accept the Minister’s argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
(e)The Tribunal based its findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
Findings of the Court as to the amended application
The applicant was invited to make submissions to the Court but has not added any grounds to her application.
Ground 1 alleges bias and a failure to consider the application according to s.91R of the Migration Act. No details have been provided by the applicant to establish a breach of s.91R of the Migration Act. The Court accepts the submission for the first respondent that there is nothing to show actual bias, nor anything to show conduct by the Tribunal which might lead a fair minded lay observer to reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided by it: Re Refugee Tribunal & Anor, ex parte H (2001) 179 ALR 425 at 434 [27]. No such conduct has been shown. The Court finds no bias or breach of s.91R. Ground one is rejected.
Ground 2 alleges that the Tribunal failed to refer to sufficient independent information because the Tribunal was biased. The Tribunal’s decision is based on its finding that the applicant is not a Catholic and a member of an underground Catholic Church, for the reasons set out extensively on CB 112. Having made the finding that the applicant was not a Catholic, it was not necessary or relevant for the Tribunal to examine independent information about possible persecution of Catholics in China. No bias has been established. The Tribunal referred to country information to the extent it thought necessary to decide the issues before it (CB 109-111). The extent to which the Tribunal relied on country information is a matter for the Tribunal as is the weight it gives to it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. By section 424(1) the Tribunal may get any information that it considers relevant, in conducting the review. Ground 2 is not established. It is rejected.
Ground 3 alleges a breach of s.424A. The Court accepts the submission for the first respondent that the Tribunal’s decision shows that, apart from the applicant’s oral evidence, the information relied on by the Tribunal was the applicant’s passport (which was provided by the applicant for the purposes of the application), and independent country information. Both of those classes of information are exempt from the notification procedures in s.424A(1) by s.424A(3)(b) and (a) respectively.
The Court accepts the submission for the first respondent that information given to the Tribunal by the applicant at the hearing is covered by the exception in s.424A(3)(b). The finding by the Tribunal that the applicant fabricated her evidence at the hearing about her husband’s and sister’s arrest, in response to its assertion that she had not been harmed by the Chinese authorities because of her claimed Catholic beliefs, is therefore covered by the exception in s.424A(3)(b), see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [91], [173], and [261]. Further, the thought processes and subjective considerations of the Tribunal are not “information” within s.424A(1): VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].The Court finds no breach of s.424A. Ground three is rejected.
Findings of the Court as to the application
Ground one alleges bias and is rejected for the reasons expressed above.
Ground two is similar to ground one of the amended application and is rejected for the reasons expressed above.
Ground three is similar to ground two of the amended application and is rejected for the reasons expressed above.
Ground four is similar to ground three of the amended application and is rejected for the reasons expressed above.
Ground five merely states that a copy of the decision is attached. Ground five is rejected.
The Court invited the applicant to make submissions to the Court in support of her application. During those submissions the applicant alleged that she had no chance to respond to issues considered by the Tribunal. The applicant attended at the hearing and had an opportunity to respond at the hearing to the extent required by s.424A.The Court finds no error of law.
Conclusion
This is a final hearing of an application pursuant to Rule 44.11(c). The Court is satisfied that the respondents have shown cause why orders for the relief claimed should not be made.
The application and amended application are dismissed pursuant to Rule 44.12(1)(c).
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 22 May 2007