SZKIE v Minister for Immigration

Case •

[2007] FMCA 892

•

29 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 892
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a visa – applicant is a citizen of China claiming fear of persecution for reasons of her religious belief – credibility – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 424A, 424A(1), 424A(3)(b), 474(2)
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676
Applicant: SZKIE
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 800 of 2007
Judgment of: Scarlett FM
Hearing date: 29 May 2007
Date of Last Submission: 29 May 2007
Delivered at: Sydney
Delivered on: 29 May 2007

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mr Izzo
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the first respondent’s costs fixed in the sum of $4,000.00 and I will allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 800 of 2007

SZKIE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal signed its decision on


    22nd January 2007

    and handed the decision down on 1st February. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant seeks judicial review of that decision. In particular she seeks a declaration that the decision is invalid and contrary to law.

  2. The applicant asks the Court to quash, or set aside, the Tribunal decision and to remit her application for review of the delegate's decision to the Refugee Review Tribunal for determination according to law.  The background to this matter is that the applicant is a citizen of China.  She arrived in Australia on 4th July 2006 and applied for a protection (Class XA) Visa on 3rd August.  A delegate of the Minister refused her application for a visa on 1st November 2006.

  3. On 1st December 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 which took place on 9th January 2007.  Before the hearing, however, the Tribunal wrote to the applicant on


    11th December 2006

    .  That letter was headed "Invitation to Comment on Information".  The letter told the applicant that the Tribunal had information that would, subject to any comments she made, be the reason, or part of the reason for deciding that she was not entitled to a protection visa.

  4. The letter then set out details of the information to which the Tribunal referred and told the applicant why the Tribunal considered that information to be relevant.  The letter invited the applicant to comment on that information and asked for the comments to be received at the Tribunal by 27th December 2006.   A copy of that letter is set out on pages 56 and 57 of the Court Book.  The applicant's migration agent wrote to the Tribunal on 22nd December enclosing a statutory declaration by the applicant commenting on the information in the Tribunal's earlier letter.

  5. A copy of that statutory declaration can be found at pages 61 and 62 of the Court Book.  The applicant attended the hearing on 9th January 2007 and gave evidence with the assistance of an interpreter in the Mandarin language.  A copy of the Tribunal's decision record is reproduced at pages 81 through to 102 of the Court Book.  In the Tribunal decision the Tribunal member set out in a considerable amount of detail the applicant's evidence, both written and oral.

  6. It is clear from the decision that the Tribunal asked the applicant a considerable number of questions about her history and about the nature of her religious beliefs.  The Tribunal also referred to evidence from other sources being Independent Country Information including the September 2006 United States State Department Report on International Religious Freedom.

  7. The Tribunal's findings and reasons are set out on pages 98 to 102 of the Court Book.  The Tribunal noted that the applicant travelled to Australia on a valid Chinese passport and accepted that she was a national of China.  The Tribunal, however, found the applicant not to be a credible witness.  The Tribunal said at page 98 of the Court Book:

    The applicant appeared to have memorised her statement and on occasions was not responsive to Tribunal's questions, instead repeating the claims from the statement.  On several occasions the Tribunal had to repeat its question to elicit a response from the applicant.  The Tribunal is also concerned about the lack of supporting evidence, despite the applicant's undertaking to provide documents to the Tribunal.

  8. The Tribunal also found that the applicant displayed only a limited knowledge about Christianity and that her statements with respect to her Christian faith were very broad and generalised.  The Tribunal accepted on the basis of the applicant's evidence and the evidence of a senior pastor of the Blacktown Chinese Christian Church that the applicant had been attending church services in Australia regularly since July 2006.   The Tribunal went on to say:

    However, as the Tribunal found that the applicant is not a committed Christian the Tribunal cannot be satisfied that the applicant's involvement in religious activities in Australia signifies her genuine commitment to the doctrines of the church or her devotion to the Christian faith.[1]

    [1] Court Book page 99

  9. The Tribunal rejected the applicant's claims that, amongst other things, that she was on a blacklist with the authorities and that there was an outstanding arrest warrant for her or that the authorities were looking for her.  The Tribunal expressed the belief, at page 101 of the Court Book, that the applicant had not been truthful with respect to her departure from China.  The Tribunal compared the applicant's response to the Tribunal's letter of 11th December 2006 written under the provisions of s.424A of the Migration Act 1958 (Cth) (“the Act”) with the applicant's passport and found significant discrepancies.

  10. The Tribunal also found the applicant was not credible in her description of events in China.  The Tribunal did not accept that the authorities had been looking for the applicant since she departed China; they did not accept that the applicant was of any interest to the authorities whether because of her involvement with the Bible Study Group or for any other reason.  The Tribunal found that there was no real chance that the applicant would face persecution for any convention reason if she were to return to China.

  11. The Tribunal also noted the applicant's claim that she had been abandoned by her husband with a child and had had a difficult life in


    China

    as a result of her marriage and divorce.  The Tribunal dealt with this by saying:

    To the extent that this constitutes a claim made by the applicant the Tribunal does not consider that the hardship described by the applicant constitutes serious harm within the meaning of s.91R or that it is convention based.[2]

    [2] Court Book 102

  12. The Tribunal affirmed the decision not to grant the applicant a protection visa.  In her application filed on 9th March the applicant claims first that there was an error of law in the Tribunal's decision constituting a jurisdictional error and second that there was a procedural error in the Tribunal's decision constituting an absence of natural justice.   In elaboration of those claims the applicant claimed that the Tribunal was based on unwarranted assumptions and sets out what the applicant considers those two unwarranted assumptions to be.

  13. The applicant also claimed that the Tribunal failed to comply with its obligations under s.424A(1) of the Act and sets out examples of what the applicant considers to be information that would be caught by s.424A(1) of the Act and complains that the Tribunal did not comply. The applicant did not file a written outline of the submissions but addressed the Court in support of her claims. She told the Court that the way that her application was handled by the Refugee Review Tribunal was not fair.

  14. She referred to assumptions made by the Tribunal which she said were unwarranted and she also noted that she had not persuaded the Tribunal that if she were to return to China she would be persecuted. She complained that that was unfair and reiterated her claim that she would be persecuted because of her Christian religious beliefs. The applicant also referred to the claims of breaches of s.424A of the Act which she had referred to in her application.

  15. For the respondent Minister, Mr Izzo of counsel prepared a detailed written outline of submissions and addressed the Court briefly. 


    He submitted that the unwarranted assumptions which the applicant claimed as relating to conclusions drawn by the Tribunal from the applicant's evidence.  He submitted that that claim was no more than a disagreement with the Tribunal's findings of fact and those findings of fact had been drawn from the applicant's evidence to the Tribunal.  Mr Izzo raised the question of whether the applicant's claim of unfairness amounted to a claim of bias and I expressed the view with which the applicant did not disagree but there was no claim of bias being made.

  16. Dealing with the applicant's claims in more detail the applicant claimed first of all that the Tribunal decision was based on unwarranted assumptions.  The first assumption is the Tribunal's claims that the applicant appeared to have memorised her statement and on occasions was not responsive to the Tribunal's questions instead repeating the claims from her statement.  She claimed that it was unfair that the Tribunal made that finding based on the fact that on several occasions the Tribunal had to repeat its question to elicit a response from her.

  17. The assumption referred to in this way by the applicant did not appear to me to be an assumption which would lead to a finding of jurisdictional error.  It appears to be in fact a cavilling at the Tribunal's findings about the manner in which the applicant gave her evidence which led to an adverse finding of credibility against the applicant.


    It is well established in decisions such as Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 that decision on credibility are findings of fact and are matters for the Tribunal to make.

  18. In my view a description of the way in which the applicant gave evidence and the conclusions drawn from the applicant's evidence is clearly a matter for the Tribunal based on evidence immediately before the Tribunal.  Mr Izzo of counsel referred the Court to the fact that these statements to which I have referred and the other statement to which the applicant gave a description of unwarranted assumption were in fact conclusions open to the Tribunal on the material before it and that they related to an important component of the applicant's claim which is the credibility of her claim to have a religious conviction which would lead to a well founded fear of persecution.  The other unwarranted assumption to which the applicant referred is:

    The applicant's conviction to the Christian faith is not of such nature that she will engage in religious worship if she returns to China now or in the reasonably foreseeable future and the applicant will engage in religious study now or in the reasonably foreseeable future.

  19. Again these are no more than a challenge to factual findings made by the Tribunal.  They are conclusions drawn by the Tribunal from the applicant's evidence about her religious beliefs.  In my view there is no unwarranted assumption, certainly not an unwarranted assumption of the nature referred to in WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676 at [54].

  20. Turning to the applicant's claim of a procedural error constituting an absence of natural justice I am not satisfied that any absence of natural justice has either been claimed or appears from the Tribunal decision. The applicant was invited to attend a hearing where she gave evidence with the assistance of an interpreter. The Tribunal had certain concerns about her evidence on the material before it and wrote to her almost a month before the hearing under the provisions of s.424A of the Act putting to her details of the information which led to the Tribunal having concerns about the credibility of her account.

  21. The applicant was invited to comment on those matters and indeed did so in a statutory declaration.  The Tribunal clearly took that into account but was still not satisfied that the applicant was a credible witness.  I am not able to discern any breach of natural justice and I am satisfied that no jurisdictional error in that regard has been made out.

  22. The other claim made by the applicant is a claim of a breach of s.424A of the Act.  That claim relates to, first, the consideration of certain information in order to make a finding about the applicant's credibility.  The applicant describes this as the lack of supporting evidence despite the applicant's undertaking to provide documents to the Tribunal and the fact that the applicant indicated she would obtain a copy of her dismissal order from her employee and had not done so as well as the applicant's claim that she would attempt to provide evidence supporting her claim of detention but did not do so.

  23. This does not constitute information for the purpose of s.424A of the Act; in fact it refers to a lack of information. Those statements referred to relate to the insufficiency of the applicant's evidence rather than any information which would be caught by the provisions of s.424A(1) of the Act.  Again the applicant said that to make a finding abut her religious belief the Tribunal considered certain pieces of information as the reason, or part of the reason, for affirming the decision.

  24. That information, the applicant claimed, was the fact that the Tribunal said the applicant did not have a firm belief until she was praying to be able to leave the country and was not keen about religion before she arrived in Australia and also the further claim that the applicant had indicated that she had obtained copies of certain information and had not done so and a comment about the fact that the pastor who gave evidence on her behalf was not certain as to whether or not the applicant was baptised although he believed that she may have been baptised in China.

  25. Well that information does not breach s.424A of the Act. The first set of comments relate to the applicant's own evidence to the Tribunal. That falls within the exception in s.424A(3)(b) of the Act. The second set of comments again relates to the applicant's own evidence but also to the insufficiency of that evidence. That does not constitute a breach of s.424A(1) of the Act.

  26. The third piece of information to which the applicant referred was the uncertainty by the pastor about the circumstances of the applicant's baptism. Well of course the pastor gave evidence on behalf of the applicant and the Tribunal's comment related to the uncertainty about information that the pastor exhibited, which is in fact a comment on the insufficiency of the information available to the Tribunal. It does not constitute a breach of s.424A of the Act.

  27. Counsel for the Minister also referred to a claim by the applicant that the Tribunal failed to consider her claims properly and fairly and failed to conduct the real chance test fairly and properly, but no particulars of that allegation were provided and I agree that it not apparent on what basis that claim could succeed.  The applicant has not established any jurisdictional error.

  28. I have read through the Tribunal decision independently of either the applicant's claims or the submissions on behalf of the first respondent Minister in order to ascertain whether any arguable case for a jurisdictional error has been made out. I am unable to discern any and I am satisfied that there is no jurisdictional error in the Tribunal's decision. As three is no jurisdictional error the Tribunal's decision is a privative clause decision as set out in s.474(2) of the Act.

  29. Because it is a privative clause decision it is not subject to the declaration or the orders in the nature of certiorari or mandamus that the applicant seeks.  It follows that the application must be dismissed.

  30. There is an application for costs on behalf of the first respondent Minister in the sum of $4,000.00 which I gather is inclusive of counsel's fees. The amount sought is certainly within the range of costs provided in the Court rules.  The applicant says that she does not have the money to pay those costs and points out that she is not able to work a great deal due to pain in the hand caused by injuries that she received in China.

  31. I do consider that that is a matter that I should take into account, not as to whether or not a costs order should be made but as to whether I should allow time to pay.  I propose to allow six months to pay.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 3 June 2007


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0