SZJZA v Minister for Immigration
[2007] FMCA 725
•25 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 725 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision –status – refugee status – refusal – visa – protection visa – satisfaction of Tribunal – no duty to prompt elaboration by applicant – no duty to make enquiries – credibility – bias. |
| Migration Act 1958, ss.91R, 91X, 424, 424A, 425 Judiciary Act1903, s.39B |
| Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Abebe v Commonwealth (1999) 197 CLR 510 Re Ruddock; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZJZA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 23 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 April 2007 |
| Date of Last Submission: | 26 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. H. Bevan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 23 of 2007
| SZJZA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 20 December 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 7 November 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 17 July 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… he stated that he was born in Gaoshan Town, Fuqing City and that his citizenship is PRC. … he had lived there all his life [in] his parents’ home and they also still live there with his spouse and 2 children … The applicant stated in his protection visa application that from October 2000 to June 2005 he was self-employed as a Photo Shop owner (Court Book (“CB”) pages 79 and 80).
The applicant claims to fear future persecution in China because of his religious beliefs.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-14 of the Tribunal’s decision (CB 79-89). Relevantly, they are in summary:
a)the applicant claimed he was born in a Christian family and that all his family members are not only Christian but members of the House of Christ Church Lin Lin. He was baptised as a member of this church when he was three years old;
b)the applicant stated that “house church groups” is a term to describe underground or unregistered churches which are illegal in China. He stated that these groups cannot practise their religion in unregistered places of worship or maintain contacts with co-religionists in other parts of the world. He referred to many members of the house church groups, including him, having been detained, arrested or sentenced to prison terms in re-education through labour camps;
c)the applicant claimed that since he started to run his photo shop in Gaoshan Town of Fuqing city he would occasionally invite members to “have House church activities” at his home or he would go out to conduct “worship services”. He claimed that because of these activities his family would be “interfered, intimidated and harassed by police”;
d)on 15 March 2001 the applicant organised a Christian gathering of around thirty people. He claims that some twenty policemen arrived on the scene and took around twenty-five of the group members (including the applicant) to the police station for interrogation. The applicant claims that the “police put me into a cage and then cuffed my hands to the top of the cage for more than 10 hours”. The applicant claims that the next day, upon being interrogated but keeping silent, he was tortured:
… they took off my pants and used my belt to whip my back and hip. Feeling not enough, then the police whipped me all around, till the belt broken. The police then used electric batons to shock me at my neck, back, armpits, and inner side of thighs. After being such tortured, I could barely stand by myself. But the police continued torturing me. The police ordered me to hold difficult postures. When I could not hold the position, the police would kick me down on the ground, and then stamp on my cuffed hands. Jun You kicked my legs violently while Chief Mo kicked my thighs, threatening to disable me. Such torture lasted for four days, by when I was already unable to walk, the whole body covered with injuries, and ears bleedings. The police cuffed my hands up. Because my belt was broken, the pants dropped, and I had to bear the freezing cold. To the end, I did not tell the police what they wanted. Then the police escorted me to Fuzhou City Detention Centre on the 25th March. I was detained there for 90 days under the charge of “preaching cult”.
I was released on 24th June. After being released, my hands and arms still felt numb. I could not squat down, and my chest felt painful all the time. (CB 82).
e)the applicant claims that a few days after he was released he resumed his preaching and prayer meetings. From 2002 to 2004, as a leader of his house church he went to other provinces preaching and building relationships with other religious groups that had also been cracked down upon by authorities. He tried to get churches in Fujian Province to work with the ones in other regions in China;
f)the applicant claims that under his leadership his house church opened a printing plant in a secret place and despite restrictions they printed thousands of pamphlets, made copies of preaching tapes and assisted churches in different regions by sending free cassettes and pamphlets;
g)in June 2005 the applicant secretly went back to Gaoshan Town of Fuqing City and had a meeting with “62 believers” in a member’s house. He claimed that as they had not seen him for a while, they were all keen to hear about news from other regions. The applicant claims that “suddenly around 30 police men from the town police station surrounded the house” but the applicant managed to run away. He hid in other members’ homes for four to five months before obtaining a Korean passport in a false name in order to get to Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not find the applicant to be a credible witness, noting:
i)at the hearing, the applicant said that he had prepared his protection visa and statement by writing it out in Chinese then paying for it to be translated and typed. In his subsequent letter dated 19 October 2006, the applicant stated that one of his church friends had translated his story into English for him;
ii)the applicant’s statement, in relation to the events he claimed occurred on 15 March 2001, was in very similar terms, and in part in exactly the same words, as used in the article: “After 4 days of torture, Brother Hou was already covered with injuries and could not walk”. The Tribunal found that the applicant had copied the article, changing the date of the event and the name of “Brother Hou” to himself;
iii)that although the applicant had some knowledge of Christianity it was very sparse and lacking in detail for someone who claimed to come from a Christian family, to have been a church organiser, to have practised for two years and who had attended a Catholic Church in Australia since April 2006;
iv)the applicant could not provide much detail as to what he practised in those two years and did not mention anything about Jesus, God or anything from the Bible, including the Gospels;
v)the applicant could not explain the importance of Easter to a Christian or the importance of Easter to him;
vi)the applicant stated he did not know why Easter was important and why the Tribunal was asking him these questions;
vii)the applicant gave three different versions of events in relation to the incident at the meeting at Gaoshan Town in June 2005, the first being in his statement dated 8 April 2006 accompanying his protection visa application form, the second being his oral evidence at the Tribunal hearing and the third being in his letter of 19 October 2006. The Tribunal concluded that the applicant’s story had been changed to suit the circumstances;
b)the Tribunal accepted that since arriving in Sydney, the applicant attended church every Sunday. However, the Tribunal found that the applicant only did so in order to strength his claims to be a refugee within the meaning of the Convention. As such, pursuant to s.91R(3) of the Act, the Tribunal disregarded the applicant’s attendance at church in Australia.
c)the Tribunal found:
i)the applicant is not a Christian;
ii)the applicant will not practise Christianity if he returns to the PRC;
iii)the applicant was not detained on 15 March 2001 and then tortured at the police station;
iv)the applicant was not detained for 90 days at Fuzhou Detention Centre; and
v)the events he claimed to have occurred in June 2005 did not actually occur at all.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. The Tribunal took the partial information as the whole facts and asked me the questions ex parte and incomprehensive.
2. The Tribunal failed to take into account all the relevant claims and evidences.
3. The Tribunal’s decision has contained inconsistencies and its reasoning is contradicting.
At the hearing in this Court the applicant raised two additional challenges to the Tribunal’s decision, namely:
a)the Tribunal prejudged the question of whether he was a Christian; and
b)the Tribunal was in breach of pt.8 div.2, ss.424 and 424A of the Act and of s.39B of the Judiciary Act.
Dealing with each of these grounds in turn:
The Tribunal took the partial information as the whole facts and asked me the questions ex parte and incomprehensive.
The meaning of this asserted ground of review is made clearer in the document entitled “Annexure 1” which is attached to the application filed on 4 January 2007.
In paragraph 7 of Annexure 1, amongst other things, the applicant says:
The Tribunal used the partial information to cover the whole facts. It failed to thoroughly understand the current components of Chinese Christians and then it subjectively concluded the situation of Chinese Christians only by right of very limited information sources and some Christian Websites it referred to in the context of economic and cultural background in the occidental countries.
This submission ignores the fact that it is for the applicant to satisfy the Tribunal that he meets the criteria for a protection visa: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 per Kirby J. As Gummow and Hayne JJ said in Abebe v Commonwealth (1999) 197 CLR 510 at 376 [187]:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of the contradictor. It is for the applicant to advance whatever evidence or arguments she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Further, as their Honours also said in Re Ruddock; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 at 451 [58], Gleeson CJ agreeing at 438 [1]:
The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.
The findings made by the Tribunal were open to it on the evidence and no jurisdictional error is disclosed by this aspect of this asserted ground of review.
The following assertion also appears in paragraph 7 of Annexure 1:
In the Paragraph 57 of the Tribunal’s decision, the Tribunal reached its finding that “the applicant is not a Christian after taking into account the applicant’s educational level and he has learnt about Christianity in a house church in PRC …” Here
I don’t really understand how the Tribunal build up the connections between the educational level and a true Chinese Christian.
This challenge to the Tribunal’s reasoning is misplaced. The Tribunal did not reach its conclusion that the applicant was not a Christian because of his educational background but, rather, after having given him some latitude because of it. The relevant passage in the Tribunal’s decision is in paragraph 57 of the decision record:
The Tribunal has reached its finding that the applicant is not a Christian after taking into account the applicant’s educational level and that he has learnt about Christianity in a house church in PRC where the knowledge about Christianity may not be at the same level as someone who has attended an official church in Australia. (CB 90).
Consequently, this element of this asserted ground of review has not demonstrated jurisdictional error on the part of the Tribunal.
The applicant also submitted that he was nervous when answering the Tribunal’s questions and so he did not present himself very well. Whether or not this is the case, this assertion does not raise an issue of jurisdictional error.
The applicant also submitted that he did not give the Tribunal the answers it was expecting on the subjects of Easter and the Resurrection. Here, the applicant is seeking to question the Tribunal’s finding that his knowledge of Christianity was very sparse and lacking in detail, being one of the bases on which it concluded that he was not truthful and lacked credibility. These findings are not open to review in this Court in judicial review proceedings such as these and no jurisdictional error is disclosed in relation to this element of this asserted ground of review.
In paragraph 9 of Annexure 1 the applicant says:
From my points of view, I believe the questions raised by the Presiding Member of the Tribunal were not across the board and the ratiocination was ex parte.
In relation to the first element of this paragraph the applicant asserts that the Tribunal should have asked questions additional to the ones which were asked. But the Tribunal has no duty to make enquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, per McHugh and Hayne JJ at 21-22 [43], Gleeson CJ agreeing at 13 [1]. Consequently, no error is disclosed in respect of this element of this asserted ground of review.
In the hearing in this Court, the applicant was unable to explain what he meant by “the ratiocination was ex parte”. It has no obvious meaning in the context of these proceedings. To the extent that it refers to the Tribunal’s reasoning, there is no obligation on the Tribunal to involve the parties before it in its process of reasoning. As the High Court has said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63 at [48]:
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The Minister has suggested that one interpretation of the expression might be that it is a reference to the Tribunal informing itself by its own enquiries, as occurred in this case. However, s.424 of the Act provides that the Tribunal may obtain such information as it considers relevant and thus no jurisdictional error is demonstrated in this regard.
The Tribunal failed to take into account all the relevant claims and evidences
The applicant’s submissions turn largely on challenges to the Tribunal’s fact-finding including the Tribunal’s adverse credit finding. However, findings of credit are matters for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 per McHugh J at 423 [67]. Further, as Tamberlin and RD Nicholson JJ explained in W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at 716 [64]:
The tribunal decision turned on the question of credibility.
A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.
Indeed, as the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 – 17 [53]:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.
In any event, this is not a case where the applicant’s contentions were dismissed out of hand but one where they were considered in detail and found to be unconvincing.
Consequently, to the extent that the applicant challenges the Tribunal’s fact-finding, no jurisdictional error has been demonstrated.
The applicant has also asserted that the Tribunal failed to ask him to provide more evidence either from Father McGee or from other Catholics in respect of his experiences and suffering in China. For the reasons already expressed, the Tribunal had no duty to make enquiries nor to prompt the applicant to provide it with information he did not, himself, provide. Consequently, no error is disclosed in respect of this part of this asserted ground of review.
The applicant also challenges the conclusion of the Tribunal that his Christian observances in Australia were undertaken only to strengthen his claims to be a refugee within the meaning of the Convention, with the consequence that the conduct was disregarded by reason of s.91R(3) of the Act. The applicant impliedly asserts that the Tribunal should have referred this issue to him before it reached its conclusion. The applicant’s church-going in Australia was something which he raised as part of the evidence in support of his claim to be entitled to a protection visa. Having raised it, it was incumbent on the applicant to provide such information as would have permitted the Tribunal to be satisfied that the applicant was not engaging in that conduct for the purposes of strengthening his claim to be a refugee. The Tribunal’s positive conclusion on the evidence before it that the applicant had:
… only attended this church in Australia to strengthen his claims to be a refugee within the meaning of the Convention … (CB 91)
goes beyond a simple lack of satisfaction and is a finding of fact. For the reasons already expressed, the reasoning by which the Tribunal reached this conclusion is not something which has to be discussed with the applicant or, to adopt his expression, to be referred back to him. As to the finding itself, it was a finding open to the Tribunal on the information before it and no jurisdictional error is demonstrated in relation to it.
The Tribunal’s decision has contained inconsistencies and its reasoning is contradicting
In paragraph 21 of Annexure 1, the applicant says this:
In the Paragraph 56 of the Tribunal’s decision, it accepted
“I have some knowledge of Christianity.” In the Paragraph 57, it said that I “have learnt about the Christianity in a house church in PRC where the knowledge about the Christianity may not be at the same level as someone who has attended an official church in Australia.” For all these from my understanding actually the Tribunal has indirectly acknowledged that I have been a member of Chinese house church and also agreed that the cultural difference between a house church in China and an official church in Australia. However, in the same paragraph, the Tribunal stated that it finds “the applicant is not a Christian” and “if the applicant returns to China in the future, he will not practice [sic] Christianity.” So I believe the Tribunal’s decision has contained inconsistencies and its reasoning is contradicting.
The passage to which the applicant refers is quoted in paragraph 16 above. A consideration of that passage indicates no internal inconsistency or contradiction. There, the Tribunal implicitly concluded that although it acknowledged that the applicant’s level of education and exposure to Christianity through a house church in China would mean that his knowledge of Christianity might not be as sophisticated as that of someone with a better education and a more structured exposure to Christian learning and practices, nevertheless it found that he was not a Christian. The reason for that finding was based on the Tribunal’s conclusion that the applicant was not a truthful witness and that his statements to the Department and to it lacked credibility.
The fact that the applicant had some knowledge of Christianity and was exposed to Christianity in a house church in China does not lead inevitably to the conclusion that he was, or is, a Christian. Consequently, it is not correct to say the Tribunal’s conclusion is irrational, illogical and not based on findings or inferences of facts supported by logical grounds: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] 207 ALR 12 per Gummow and Hayne JJ at 20 – 21 [38], Gleeson CJ agreeing at 13 [1].
Consequently, no jurisdictional error is demonstrated in relation to this asserted ground of review.
Bias
As to actual bias, North J said in Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
His Honour observed at 563 that it is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.
The Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
· An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
· The allegation is not to be lightly made and must be clearly alleged and proved.
· The presence or absence of honesty will often be crucial.
· The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
· Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
· Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
A consideration of the decision of the Tribunal in this case indicates no mind closed to the applicant’s submissions but, rather, a weighing of the information which was before the Tribunal.
Further, no evidence has been adduced by the applicant in support of this serious allegation. It is no more than an assertion made from the Bar table. In the circumstances, the allegation is not made out and this asserted ground of review discloses no jurisdictional error.
Breaches of the Migration Act and the Judiciary Act
Part 8 div.2 of the Act deals with the jurisdiction and procedure of courts and does not refer to the Tribunal except in the context of it being a body from which an application for review is brought. Consequently, no jurisdictional error is disclosed in relation to this part of this asserted ground of review.
As to s.424, it provides:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
The applicant did not particularise the way in which he said the Tribunal had duties under s.424 which had been breached. Although the getting of information under s.424 might, in turn, create duties under s.424A and s.425 of the Act, that is not what is asserted here. No jurisdictional error is demonstrated in relation to the Tribunal’s conduct as governed by s.424.
As to s.424A, the section provides:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
The information upon which the Tribunal relied in arriving at its decision was the evidence given by the applicant at the Tribunal hearing, the matters which were referred to by the Tribunal in its s.424A letter to the applicant dated 28 September 2006 (CB 58 – 68), the applicant’s response to that letter (CB 69 – 72) and the applicant’s correspondence with the Tribunal regarding Father McGee (CB 49 – 52).
All that information falls within the exception contained in s.424A(3)(b) or the process provided by s.424A(1). In those circumstances, no breach of s.424A is disclosed and no jurisdictional error is therefore demonstrated in respect of it.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 15 May 2007
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