SZKFP v Minister for Immigration
[2007] FMCA 1649
•13 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1649 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People’s Republic of China claiming fear of persecution for reasons of her religious beliefs – whether Tribunal failed to comply with Migration Act 1958 (Cth) s, 424A – whether Tribunal failed to comply with Migration Act 1958 s, 425 |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 424A(1), 425, 474 |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 followed |
| Applicant: | SZKFP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 517 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 September 2007 |
| Date of Last Submission: | 13 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondents: | Ms Baggett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 517 of 2007
| SZKFP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of the People's Republic of China. She asks the Court to set aside a decision of the Refugee Review Tribunal that was handed down on 9th January 2007 refusing her a protection visa. The applicant also asks the Court to declare that the decision is invalid and to make an order remitting her application for a visa to the Refugee Review Tribunal for determination according to law.
The applicant claims that the Tribunal committed an error of law constituting jurisdictional error and claims that there was a procedural error in the Tribunal's decision constituting an absence of natural justice. In particular, the applicant claims that the Tribunal fell into error in three ways:
a)By failing to comply with its obligations of s.424A of the Migration Act.
b)By failing to comply with its obligations under s.425 of the Migration Act.
c)By failing to consider her claims properly and fairly.
The applicant arrived in Australia on 16th April 2006. She applied for a protection (Class XA) visa on 30th May 2006 on the ground of her religious belief. A delegate of the Minister refused her application for a visa on 9th August 2006. On 7th September the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.
The Tribunal invited the applicant to attend a hearing on 24th October 2006 so that she could give oral evidence and make submissions regarding her claim. The applicant attended the hearing. She told the Court that before she came to Australia she lived in Longtian in Fuqing City. She attended church and came under adverse notice from the authorities because of her religious activities. She said that she is a member of the local church and the Tribunal asked her questions about that.
She claimed to have come under adverse notice from the PSB because she had been involved in, amongst other things, smuggling Bibles into China and otherwise transporting banned religious material.
She claimed to have been arrested and detained and to have been subjected to inhumane treatment. As a result, she developed a stomach ailment involving internal bleeding from which she still suffers.
After the hearing the Tribunal wrote to the applicant on 7th November 2006. The letter was headed "Invitation To Comment On Information" and told the applicant that the Tribunal had information that would, subject to any comments that she made, be the reason or part of the reason for deciding she was not entitled to a protection visa. The letter set out five pieces of information:
At the departmental interview on 31st July 2006 the applicant demonstrated only a superficial knowledge of Christianity which did not reflect her claim of a lengthy involvement with the local church.
The applicant said in her statutory declaration on 29th May 2006 that her father was arrested by the PSB in September 1999 and that she and her mother and brother and sister were all subject to interrogation.
She claimed that this happened on many occasions and that she was mistreated by the police and thrown into a gloomy and cold, dirty and moist room which was the seeds of disease that she suffered even today.
The applicant stated in that same statutory declaration that the police forced her many times to go to the PSB for investigation.
The applicant's protection visa application indicated that she attended school from 1985 to 1995 and lived at the same address from December 1998 until April 2006 and was employed from July 1995 until February 2006 by the same company. The applicant confirmed that information at the hearing and stated that she had a child who was eight years of age and had been attending the same school since she started school.
It was common knowledge among Christians that Jesus Christ has a crown of thorns on his head when he was crucified and that he was crucified on a Friday and that the three wise men came to visit Jesus Christ when he was born and brought gifts of gold, frankincense and myrrh.
In each case the letter told the applicant why that piece of information was relevant and what effect that information may have on the Tribunal's consideration of her claim. The letter invited the applicant to comment on that information in writing in English by 21st November 2006. The applicant did indeed comment on that information.
Her migration agent forwarded to the Tribunal on 21st November 2006 a three-page statutory declaration from the applicant commenting on the information in the letter and two medical certificates, one from the Sussex Specialist Centre and the other from Dr Albert Kin Nguyen Leung, which appears to be a receipt. It appears that the applicant contacted Dr Leung at the Sussex Specialist Centre on 21st November 2006.
The Tribunal signed its decision on 13th December 2006 and handed that decision down on 9th January 2007. A copy of the Tribunal decision record can be found at pages 96 through to 115 of the Court Book. The Tribunal set out the claims made to the department, including the applicant's statutory declaration made on 29th May 2006. The Tribunal noted that the applicant did not make any additional claims at the time she filed her application for review and set out in some detail the applicant's evidence at the Tribunal hearing.
That summary can be found at pages 102 through to 107 of the Court Book. The Tribunal also referred in the decision to the Tribunal's letter of 7th November 2006 which the Tribunal stated was written in accordance with its obligations under s.424A of the Migration Act.
The Tribunal referred to the certified copy of the medical certificate from the doctor at the Sussex Specialist Centre and set out almost in full the contents of the applicant's statutory declaration at pages 109 through to 111.
In its findings and reasons, which can be found at pages 111 to 115 of the Court Book, the Tribunal found that the applicant was a citizen of China and based that finding on the applicant's identity card, as well as her language and her claim of nationality. The Tribunal noted that the applicant had submitted her claims on the basis that she had a well-founded fear of persecution for reason of her religion and noted her claim that she had played an important role in the underground Christian church for the local church in China and that she would be arrested if she were to return to china.
The Tribunal set out, however, that it did not accept those claims and gave the following reasons:
The applicant's knowledge of Christianity and Christian beliefs at the time of the departmental interview was superficial and did not demonstrate a lengthy involvement with the local church.[1]
[1] Court Book at 112
The Tribunal noted that in her statutory declaration the applicant conceded that she had made mistakes during the departmental interview and claimed that she was very scared at that interview and at the Tribunal hearing. However, the Tribunal did not accept that fear or stress at the situation would cause her to fail to remember religious teachings learned from the time of her childhood. The Tribunal said:
The Tribunal does not accept that being nervous and scared would cause the applicant to forget such basic knowledge when she claims to have been a Christian since childhood and was born into a Christian family with Bible study being regularly conducted at the home. Nor does the Tribunal accept the applicant's evidence that she has been attending the local church, firstly, in Blacktown and then after she obtained a job in the city. The applicant was unable to name either church even though her evidence was that she had been attending the church in Chinatown Sydney for three months, has attended each week and every Friday evening she attends a small group gathering. Although the applicant named two people who she claims lead the services of the church in Sydney, she did not provide a statement from the church to show that she is a member of the church or that the two named people are members of the church.
When asked why she had not brought anything with her from the church to confirm that she is a member of that church she stated that as a Christian she does not need to.[2]
[2] Court Book 112-113
The Tribunal was not satisfied that the applicant was a member of the congregation of the local church, nor did it accept her claim that she had been involved in religious activities with a banned church group. The Tribunal was not satisfied that the applicant had been a member of the local church either in China or in Australia. The Tribunal also found that the applicant was not a Christian, was not a member of the local church. The Tribunal stated that the applicant's lack of knowledge about basic Christian beliefs was such that the Tribunal found her account of her claimed experiences not credible and not truthful.
The Tribunal also referred to a document the applicant provided to the Tribunal at the hearing entitled "Decision To Permit Prisoner To Be Released On Bail For Medical Purposes". The Tribunal was not satisfied that it was a genuine document because of inaccuracies within it and found that the information in the document was unreliable. Consequently, the Tribunal gave it no weight.[3]
[3] Court Book 113
The Tribunal referred to significant gaps in the applicant's knowledge of Christianity and went on to make this finding:
Given that the Tribunal does not accept that the applicant is a member of the local church, the Tribunal does not accept the applicant's collateral claims that she was involved in transporting in banned religious material on behalf of the local church.
The Tribunal does not accept that the applicant was interrogated many times by the police. The Tribunal does not accept her claim that she has been regarded as one of the key people who have played important roles in the local church.[4]
Court Book page 114.
[4] Court Book 114
The Tribunal then went on to consider the applicant's claims that she had been interrogated and subjected to inhuman mistreatment and suffered from a serious gastric haemorrhage and was released temporarily on bail for medical treatment. The Tribunal did not accept that the applicant's medical condition referred to in the clinical notes was caused by her claimed mistreatment and made this finding:
The Tribunal finds that the applicant has exaggerated her medical condition and whatever that medical condition is there is no assessment of her health in Australia other than Dr Leung's thinking that she needs a gastroscopy and referral to a specialist based on the applicant's own report of her condition in February 2006.
It was for these reasons that the Tribunal was not satisfied that the applicant was persecuted for reasons of her religion and was not satisfied that there was a real chance that the applicant would face serious harm for reasons of her religion if she were to return to her country of nationality. The Tribunal did not accept that she had a
well-founded fear of persecution in China for the reasons that she claimed and found that there was not a real chance that she would face serious harm for reason of her religion or any other Convention reason if she were to return to her country. Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention and affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings for judicial review of the Tribunal decision by means of an application and an affidavit in support filed on 15th February 2007. She filed an amended application on 24th May 2007. In that amended application she claimed jurisdictional error and procedural error constituting an absence of natural justice. The applicant claims three grounds. The first one is a failure to comply with the Tribunal's obligations under sub-s.424A(1) of the Migration Act. She complains that the Tribunal made this finding:
Although the applicant named two people who lead the services at the church in Sydney, she did not provide a statement from the church to show that she is a member of the church. The applicant has not provided an official letter from the church regarding her involvement in the church.
The substance of the complaint is that the Tribunal did not inform her that she should provide a statement from the church to show that she was a member or should provide an official letter from the church regarding her involvement. Whilst the applicant conceded that the Tribunal may not have an obligation to tell her what kind of documentary evidence she needed to provide, the applicant submitted that if the Tribunal had considered that as the reason or part of the reason affirming the decision, that sub-s.424A(1) required the Tribunal to provide that information to the applicant, ensure that she understood it and invite her to comment on it.
This ground is misconceived and represents a misunderstanding of the nature of sub-s.424A(1) of the Migration Act. It is well-established that a failure to provide information or an absence of information is not considered information for the purposes of s.424A of the Act.
The solicitor for the respondent Minister, Ms Baggett, referred the Court to the decision of the High Court of Australia in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] where their Honours found the disbelief of the applicant's claims, doubts, inconsistencies or the absence of evidence were not information for the purpose of s.424A.
In this case the Tribunal's identification of material that the applicant failed to provide in support of her claim is clearly not information and consequently there is no breach of s.424A of the Migration Act.
The first ground fails.
The second ground claims a failure to comply with the Tribunal's obligation under s.425 of the Migration Act. The applicant conceded that during the hearing the member did discuss some of the issues with her, but failed to make clear to her what negative issues had been raised in relation to her application and what particular information she intended to use as a reason or part of the reason for determining her review application. As a result, the applicant claimed that she had been denied the opportunity to present her arguments against those negative issues in relation to her review application.
This claim appears to refer back to a s.424A claim, but as far as negative issues are concerned, it is, as I said earlier, established law that disbelief of the applicant's claims or doubts or inconsistencies or the absence of evidence does not constitute jurisdictional error.
The Tribunal is not required to give the applicant a running commentary on the Tribunal's thought processes. The Tribunal is not required to indicate to an applicant during the case that parts of the applicant's evidence may not be accepted. The fact is that the Tribunal wrote to the applicant and invited her to attend a hearing.
The applicant attended and gave evidence with the assistance of an interpreter. The Tribunal discussed with the applicant issues relating to her claim.
It is noteworthy that in the delegate's decision the consideration of the applicant's knowledge of Christianity and her claims in relation to her involvement in the transport of religious materials were matters considered by the delegate and indeed formed a significant part of the delegate's reasons for refusing the visa. The delegate did not accept that the applicant's circumstances were such that she needed to flee China because of her involvement in the activities relating to the church.[5]
[5] Court Book 54
Those issues were not matters that could be described as the Tribunal taking the applicant by surprise. They were the issues for decision. In any event, the Tribunal did in its s.424A letter of
7th November 2006 put negative issues or its doubts about the case to the applicant by referring to information it would rely on and the significance of that information and invited the applicant to comment on it. The applicant did comment on it in writing in a statutory declaration. I am satisfied that the applicant's second ground fails as there is no breach of s.425 of the Migration Act.
The third ground claims that the Tribunal failed to consider the applicant's claims properly and fairly by asking only a few questions about the applicant's religious knowledge and not considering the applicant's claims for a visa on the ground that she had transported or smuggled Bibles from overseas to mainland China. In addition, the applicant claimed that the Tribunal's criticisms of her claims and evidence regarding her involvement in the local church appeared to have dubious substance.
The applicant reiterated those claims in her oral submission to the Court. She doubted that the Tribunal had considered her statutory declaration, although it is quite clear that Tribunal did so in its decision and reiterated her claims that her medical evidence supported her case. Of course the Tribunal did consider the medical evidence, just as the Tribunal considered the applicant's statutory declaration received on
21st November 2006. The Tribunal did consider the applicant's claim having been involved in transporting banned religious material and specifically rejected that at page 114 of the Court Book.
The applicant's third ground appears to be an attempt at inviting the Court to undertake merits review of the applicant's case, but the Court's function is not to second-guess the Tribunal on matters of fact but to decide whether or not the decision is affected by jurisdictional error.
All three of the applicant's grounds fail. The applicant is not legally represented and I have considered the decision and the supporting material in the Court Book in order to ascertain whether there is an arguable case for jurisdictional error on some other ground. I am unable to discern any. I am satisfied that jurisdictional error has not been made out and consequently the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. A privative clause decision is final and conclusive and is not subject to declaration or orders in the nature of certiorari or mandamus. It follows that the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 September 2007
0
1
2