SZKGH v Minister for Immigration - [2007] FMCA 2116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKGH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2116

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 a citizen of China claiming fear of persecution for reasons of membership of a particular church group – allegation of bias – no evidence of bias – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A(1) – no reviewable error.

Migration Act 1958 (Cth), ss.424A, 474

SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 followed
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 followed

Applicant:

SZKGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 635 of 2007

Judgment of:

Scarlett FM

Hearing date:

5 December 2007

Date of Last Submission:

5 December 2007

Delivered at:

Sydney

Delivered on:

5 December 2007

REPRESENTATION

Counsel for the Applicant:

Nil

The Applicant:

In Person

Solicitor for the Respondents:

Ms Mansour

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 635 of 2007

SZKGH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant is a citizen of the People's Republic of China. She asks the Court to make a declaration that the decision of the Refugee Review Tribunal refusing her a protection visa is invalid. She also asks the Court to set that decision aside and remit her application for a protection visa to the Refugee Review Tribunal to be determined in accordance with the law. She asks that the Tribunal be constituted by another member of the Refugee Review Tribunal but that is outside the power of the Court to order.
The applicant claims that there was an error of law in the Tribunal's decision constituting a jurisdictional error. She also claims that there is a procedural error in the Tribunal's decision constituting an absence of natural justice. The applicant applied for a protection (Class XA) visa on 19 May 2006. She sought protection because of her involvement with a particular church in China called The Shouters. She claimed to have assisted her teacher who is a member of the church and as a result of her involvement with the church she now fears arrest and detention.
A delegate of the Minister refused her application for a visa on 16 August 2006. On 13 September 2006 the applicant applied to the Refugee Review Tribunal for a review of the Tribunal's decision. The applicant had the assistance of a migration agent to prepare the application. She did not forward any further information to the Tribunal with her application for review. The Tribunal wrote to the applicant inviting her to attend a hearing which was to be conducted by video conference on 31 October 2006. The applicant indicated that she wished to attend but unfortunately it was not possible for the Tribunal to hold the hearing on that day. A new date was set, being 23 November 2006.
Again the hearing was conducted by video conference and the Tribunal member and the interpreter were in Melbourne. The applicant attended the hearing and gave evidence about her involvement with the local church that was The Shouters. She gave evidence that her teacher had been dismissed from her job and sentenced to one year of re-education through labour. The applicant said that she later assisted her teacher after she had been released in delivering documentation. Eventually the police came looking for her but the manager of a shop where she worked warned her and helped her to escape by obtaining a passport in the name of another person.
The applicant told the Tribunal of the difficulties which she had. The Tribunal then wrote to the applicant on 4 December 2006. That letter was intended to comply with the requirements of s.424A of the Migration Act.[1] 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 that she was not entitled to a protection visa.
[1] A copy of the letter can be found at pages 86 to 88 of the Court Book.
The Tribunal then set out that information which was provided in her application for a visa in her interview with a delegate of the Minister on 8 August 2006 and her oral evidence at the Tribunal hearing on 23 November. The Tribunal sought the applicant's comments on a number of matters. The applicant, with the assistance of her migration agent, replied to that letter[2].
[2] Court Book pages 90-94
The Tribunal signed its decision on 8 January 2007 and handed that decision down on 17 January 2007. A copy of the Tribunal decision record can be found at pages 97 through to 108 of the Court Book. The Tribunal set out in detail an account of the applicant's claims and evidence, including the request for comment under s.424A of the Migration Act and the applicant's response.
The Tribunal also referred to independent country information relating to freedom of religion in China, the group known as The Shouters and reports by the United States, Department of State, and a 2006 report by the United States Commission in International Religion, Religious Freedom. That related to unregistered churches in general, not The Shouters in particular. That information can be found at pages 104 and 105 of the Court Book. The Tribunal's finding and reasons are set out on pages 105 through to 108.
The Tribunal found that the applicant was a national of China, relying on information before it, including the identity card from the People's Republic of China in the applicant's name. The Tribunal noted the applicant's claims that she had been persecuted in China because of her role in The Shouters Church and her claim that her involvement was more than that of an ordinary member. The Tribunal then considered that claim but raised a number of concerns about the credibility of the applicant's account and her fear of persecution.
The Tribunal considered that it was implausible that the applicant's parents would have had little or no concern about the applicant's involvement in the underground church when she was only 14. The Tribunal examined the applicant's evidence, and whilst it is accepted that the applicant may have been a practising Christian, it was not satisfied that the applicant suffered serious harm from the Chinese authorities in connection with her practise of Christianity.
The Tribunal noted from the applicant's own evidence that whilst in Australia the applicant attended a normal Christian church which was similar to The Shouters but was not a Shouter church. The Tribunal found:
There is nothing to suggest that the applicant's attendance at a mainstream Christian church would now, or in the reasonably foreseeable future, attract the adverse attention of the Chinese authorities[3].
[3] See Court Book pages 107 -108
The Tribunal was not satisfied that the applicant had been a member of The Shouters Church either in China or Australia and did not accept that the applicant suffered serious harm in China because of her activities in The Shouters Church. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention if she were to return to China, and affirmed the decision not to grant the applicant a Protection (Class XA) visa.
The applicant commenced proceedings in this Court on 23 February 2007 by means of an application and an affidavit in support. She sets out particulars of her claim that there was an error of law and that there was procedural error in the Tribunal's decision which constituted jurisdictional error. In particular the applicant makes three claims:
(1)that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act;
(2)that the Tribunal made a finding without the support of substantial evidence,
(3)that the Tribunal had ignored or misunderstood or misstated her claims or made a finding in bias.
The applicant has submitted a written outline of submissions. In that submission she submits that the Tribunal failed to comply with its obligation under s.424A(1) of the Act and made a finding based on its unwarranted assumption. She then sets out matters in the Tribunal's decision and compares those to what she said in her response to the s.424A letter. The applicant also submits that the Tribunal failed to consider her claims properly and correctly and in particular noted that the Tribunal had accepted that the applicant had been a practising Christian but claimed that the Tribunal failed to consider that she could only practise her religion at The Shouters Church both in China and in Australia. The Tribunal, it may be recalled, had come to a different view.
The applicant had not provided any details of the bias which she alleged the Tribunal had shown and was asked in Court to expand upon that claim. She referred to certain factual matters and when asked why that showed bias said only that the Department of Immigration had mentioned she was not a Christian but the Refugee Review Tribunal said that she might be one. She took evidence of the factual finding about studying the Bible, saying that a genuine Christian was not able to understand the Bible by reading it just for three months. She expressed the view that the Tribunal had not given consideration to what she told the Tribunal. She also took the view that the Tribunal was not a fair decision because the Tribunal in her view did not consider her application.
Lawyers for the Minister filed a submission in reply answering the applicant's claims and in particular submitting that there was no jurisdictional error. The submission is that the Tribunal did comply with its obligations under subsection 424A(1) of the Migration Act by putting the applicant on notice of the information upon which it intended to rely. Whilst the applicant had complained that the Department had failed to provide her with a copy of a tape recording of her interview with a delegate of the Minister, there was no obligation for that to be done.
In respect of the applicant's claim that the Tribunal failed to consider her claims properly and correctly, the Minister submits that the Tribunal decision record is evidence on its face that the Tribunal did consider the applicant's evidence to the delegate, the applicant's evidence at the hearing, and the applicant's responses to the s.424A letter.
As to the claim of bias, the Minister submits that an allegation of bias must be clearly alleged and proved. The Minister refers the Court to a decision in SZHPD v Minister for Immigration & Citizenship[4] where the Court referred to Minister for Immigration & Multicultural Affairs v Jia Legeng[5]. The Minister submits that the applicant has not provided any evidence to support an allegation of bias, despite being given an opportunity to do so.
[4] [2007] FCA 157 at [22]
[5] (2001) 205 CLR 507
In dealing with the applicant's claims, I am not satisfied there has been shown a failure by the Tribunal to comply with the Tribunal's obligations under s.424A (1) of the Migration Act. The Tribunal's letter of 4 December refers in some detail to information provided in the application for a protection visa, information provided at the interview with a delegate on 8 August 2006 and the applicant's oral evidence to the Tribunal.
In this regard I would note that the applicant's oral evidence to the Tribunal is not in any event covered by the requirements of subsection 424A(1) of the Migration Act. It comes within the exception in subsection 424A(3). The letter invited the applicant to comment in writing and the applicant did just that by means of a letter dated 20 December 2006. It is clear that the Tribunal considered the applicant's response. As to the applicant's claim that the Tribunal made a finding without the support of substantial evidence, there is no requirement that the Tribunal produce evidence in order to disprove an applicant's claim. The obligation is on the applicant to provide evidence to satisfy the Tribunal that she meets the requirements of the visa.
The applicant also claims that the Tribunal has ignored or misunderstood or misstated her claims. There is no evidence of that that I can see. The Tribunal decision gives a comprehensive account to the applicant's claims and deals with that. There is no evidence of bias. An allegation of bias is a serious allegation which must be clearly alleged and proved. There is no evidence that the Tribunal member showed bias either actual bias or apprehended bias. That claim must be dismissed.
In the applicant's written submissions she claims that the Tribunal failed to consider her claims properly and correctly. The Tribunal decision record shows a detailed account of the applicant's claims, the fear of persecution as a member of The Shouters Church, not just an ordinary member but an active member who assisted her teacher. In the end the Tribunal was just not satisfied that the applicant had established the nature of her claim.
The fact that the Tribunal was prepared to accept that the applicant may well have been a Christian was not sufficient to establish that the applicant was a member of the local church or The Shouters which would bring her to the adverse attention of the PSB or other authorities in China. The Tribunal noted the independent country information showing that members of mainstream churches in China, that is churches that are not unregistered churches, do not need to fear persecution from the authorities.
Whilst the applicant's claims in her application and in her submission fail, I am mindful of the fact that the applicant is not legally represented and I have examined the Tribunal decision in order to ascertain whether there is any arguable case for some other jurisdictional error. I am unable to find any. There is no jurisdictional error so I am compelled to find that the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. As such it was not subject to orders in the nature of certiorari or mandamus. Privative clause decisions are final and conclusive and it follows that the application must be dismissed.
There is an application for costs on behalf of the Minister. The applicant has been unsuccessful in her claim and as costs follow the event it follows that there should be a costs order. The amount sought is $3500. However, the applicant says that she cannot meet this sum, she has no job. She has no income, she says, and has to rely on her church brothers and sisters for support. Whilst this is not a ground not to make a costs order, it is certainly a matter that needs to be taken into account in assessing time to pay. I propose to allow four months to pay.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 18 December 2007