SZKHT v Minister for Immigration
[2007] FMCA 1042
•25 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1042 |
| MIGRATION – Judicial review – applicant must show jurisdictional error by Tribunal, not errors of fact – applicant must establish claim. |
| Migration Act1958 (Cth), s.474 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Abalos v Australian Postal Commission (1990) 171 CLR 167 |
| Applicant: | SZKHT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 761 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 25 June 2007 |
| Date of last submission: | 25 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr. Smith |
| Solicitors for the Respondent: | Ms. Saloni Kantaria of Clayton Utz |
ORDERS
The application and amended applications are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 761 of 2007
| SZKHT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 5 March 2007 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 25 January 2007 which decision 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 22 May 2007.
The applicant was born on 27 November 1964, and, according to his protection visa application, is from the Republic of Korea, having been born in “Soul” (sic Seoul) (CB 13). In his letter dated 16 November 2006, the applicant states that he was born in China (CB 67). The Tribunal accepted that the applicant was born in China.
The applicant arrived in Australia on 11 March 2006 on a visitor’s visa.
On 13 April 2006 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. In that application he claimed to fear persecution from the government because of his political opinions. The applicant claimed that he could not enjoy freedom of speech in his country, was arrested by the police for investigation, and suffered persecution “from time to time” because of his political opinions (CB 19).
This application was refused by a delegate of the first respondent on
11 July 2006 (CB 43).
On 15 August 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 51). The Tribunal invited the applicant to provide additional information in support of his case by letter dated 6 November 2006 (CB 63). The applicant responded by letter dated 16 November 2006 (CB 67) setting out “new claims” for his protection visa application. The letter stated that the applicant is from China and had suffered persecution from the Chinese authorities because of his Christian faith. The applicant claimed that he did not provide his “true identity” in his application because he had been told “not to do so” by the people who had arranged his Korean passport (CB 67).
The applicant attended a hearing before the Tribunal on 19 December 2006 to give evidence and present oral arguments (CB 95).
By decision signed on 25 January 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 91). In considering the applicant’s claims, the Tribunal found (CB 100-1) (highlighting added):
The Tribunal accepts the applicant is a national of China. It accepts that he is not a national from the Republic of Korea. It accepts the claim that he is H [applicant’s name]. This is the name shown on his Chinese divorce certificate papers.
The Tribunal found that the applicant was not forthcoming about his previous residences in China. As the Tribunal attempted to clarify the evidence that he gave, the Tribunal considered his responses became evasive. The Tribunal accepts that following his divorce in 1997 he was absent from home for periods of time, however the Tribunal considers that these absences were due to his working away in different clothing factories, and not because the police were searching for him, as he claimed in giving evidence. The applicant said that after 2004 while he was away his sister who lived nearby would come and look after his children at night. Although it is possible that the two children could fend for themselves during the day, they were still quite young in 2004 and Tribunal questions if this evidence is truthful.
There were inconsistencies in the evidence that the applicant gave to the Tribunal. In his statement addressed to the Tribunal dated 16 November 2006, the applicant said that he was born into a Christian family. During the hearing, however the applicant said that he did not have a religion until he became sick. On several occasions the applicant told the Tribunal that his wife left him because he was not making enough money. At other times, the applicant said his wife left him because he was following huhan and she disapproved of this.
The Tribunal does not accept that the applicant was a follower of huhan in China as he claims to have been. He claims to have followed huhan for 10 years, going to gatherings three to four times a week. However, when asked to describe the principles of huhan he said that it was “mostly about how God created the world”. Despite telling the Tribunal that he had tried Christian denominations that were accepted in China, he was unable to describe what aspects of huhan distinguished it from these other denominations, other than to say that huhan had more activities scheduled and that the followers spoke loudly. He was unable to describe differences in the bibles used by huhan compared to other Christian denominations but agreed that there were some differences. He said it “depended on how you felt”.
The applicant has very little knowledge of basic Christian beliefs. For example, he did not understand the status of Jesus in regard to the position of God. The applicant was unable to adequately recall a story about Jesus or to describe instructions for life given by Jesus.
The applicant said that: “after I arrived in Australia I tried to find the same Church, then at last I got the opportunity to find it.” Later on the applicant told the Tribunal that the Church that he had been attending in Sydney was not a huhan Church. He said that he had been told that there was no huhan church in Australia, and that he could not find one.
The Tribunal accepts the applicant has attended Sunday services at the Hebron Chinese Alliance Church, Sydney (of the CM & A of Australia) since June 2006. The Church is not a Local Church. It describes itself as: “an international, faith-upholding church which uplifts Christ, stresses the pursuit of life-deepening and is dedicated in mission and global evangelism." accessed 16 January 2007. Given his superficial knowledge about basic aspects of Christianity the Tribunal considers that the applicant has not attached himself in a significant way to the teachings to identify himself as a member of that Church.
The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to China. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the applicant does not satisfy the criterion set out in s.36(2) for the grant of 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 Act”).
The application
In his application, the applicant set out three grounds as follows:
(1)RRT ignored the evidence of local church. I had added lots of evidence which came from church to my case. But it seemed RRT did not look at it.
(2)The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.
(3)RRT ignored the truth that I would be in dangerous if I came back to China. Chinese police wants me because of my religion. Moreover, I used a Korean passport to come to Australia, if I came back to China, I would be arrested immediately.
The applicant’s amended application set out the following grounds and particulars:
(1)The Tribunal failed trying to believe what I said and the evidences I provided.
(2)The decision of the RRT involved and (sic) error of law.
(3)RRT ignored the truth that I would be in dangerous if I came back to China.
Findings of the Court
The Tribunal did not accept that the applicant was a follower of huhan in China (CB 100-1) for the reasons it set out. That finding of fact was open to the Tribunal on the material before it and is not subject to review.
As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]:
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
The applicant claimed no other basis for persecution. Once the Tribunal found that the applicant was not a follower of huhan, it found that it was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returns to China. That finding was open to the Tribunal on the material before it.
Grounds in the application
Ground one claims that the Tribunal “ignored the evidence of local church.” The “local church” refers to the huhan church (CB 99.9). It is incorrect that the Tribunal ignored the applicant’s evidence “of the local church”. The Tribunal recorded the applicant’s evidence about huhan at CB 97.1-98.5 and 99.8-100.2. However, at CB 100.7 the Tribunal did not accept that the applicant was a follower of huhan in China. That was a finding of fact properly open to the Tribunal on the material before it, and is not subject to review: NAHI (ante).Ground one is rejected.
Ground two complains that the Tribunal made an error of law. This allegation has not been established. The applicant was invited to make oral submissions to the Court, and did make submissions. No matters were put to the Court that established an error of law by the Tribunal. Ground two is rejected.
Ground three claims that the Tribunal ignored the applicant’s claims that it would be dangerous for him to go back to China. The Tribunal rejected that claim and found that it was not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to China (CB 101.3).
The Court agrees with the following statement by the Tribunal in N99/29216:
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The statement that it is necessary for the applicant to provide in as much detail as necessary to enable the decision-maker to reach a conclusion is pertinent to the applicant’s comments today, that “anything the Tribunal asked, he would give evidence”. It was not for the Tribunal to elicit evidence, but for the applicant to establish the necessary facts.
The applicant did not establish his case that it would be dangerous for him to return to China. The Court rejects the claim that the Tribunal ignored his claims.
The applicant claims that the “Chinese police wants me because of my religion” and because he “used a Korean passport to come to Australia.” The first claim was put to the Tribunal, and rejected. That finding of fact by the Tribunal was properly open to it on the material before it. The second claim was apparently not put to the Tribunal and there is no claim that it was; it is a new matter. The Tribunal made no error of law or fact by failing to deal with a claim that were not put before it. Ground three is rejected.
Grounds in the amended application
Ground one complains that the Tribunal did not believe the applicant. As stated in W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 per Tamberlin and R.D Nicholson JJ stated at [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. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
There is nothing in this case to show that the Tribunal acted on evidence that was inconsistent with facts incontrovertibly established by the evidence, or that was glaringly improbable. Ground one is rejected.
Ground two alleges an error of law. No error of law has been established. Ground two is rejected.
Ground three alleges that the Tribunal ignored the applicant’s evidence that it would be dangerous for him to return to China. This is the same allegation as in ground three of the application, and is rejected for the reasons given in relation to that ground.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 4 July 2007
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