SZKOB v Minister for Immigration
[2007] FMCA 1379
•3 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1379 |
| MIGRATION – Visa – Protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – Applicant is a citizen of the People's Republic of China claiming fear of persecution on the ground of the religion – membership of underground Christian church – where applicant complained that he had not received a transcript of an interview with a Departmental officer – no jurisdictional error made out. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.424A, 474 |
| SZHCJ v Minister for Immigration & Citizenship [2007] FCA 205 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 SZFLL v Minister for Immigration & Citizenship [2007] FCA 355 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZKOB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1322 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 August 2007 |
| Date of last submission: | 1 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Godwin |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1322 of 2007
| SZKOB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 20th March 2007 and handed that decision down on 29th March. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant filed an application and an affidavit on 26th April 2007 seeking judicial review of the Tribunal's decision. The orders that the Applicant seeks are:
i)A declaration that the decision was invalid and contrary to law.
ii)An order that the decision be quashed or set aside.
iii)An order that his application be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with the law.
I wish to make two points at this stage. First, if the Court is to make those orders the Court must be satisfied that the decision is affected by jurisdictional error. The Court does not rehear the application on its facts and make its own factual findings. The task of the Court is not to second-guess the Refugee Review Tribunal. The Court's task is to correct the Tribunal if it has made a jurisdictional error (See SZHCJ v Minister for Immigration & Citizenship [2007] FCA 205 at [3]).
I am also not of the view that it is up to the Court in remitting an application to the Tribunal to order that the Tribunal should be differently constituted. The constitution of the Refugee Review Tribunal is a matter for the Principal Member of the Tribunal. It is doubtful that the Federal Magistrates Court has the jurisdiction to make orders about the constitution of the Tribunal, and the Full Court of the Federal Court has expressed that view in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [30] in the joint judgment.
In order to ascertain whether the Tribunal has made a jurisdictional error it is necessary to conduct a brief examination of the background to this matter.
Background
The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 13th August 2006. He applied to what was then the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 8th September 2006. On 14th November 2006 a delegate of the Minister refused his application for a visa. The Applicant then on 14th December 2006 applied to the Refugee Review Tribunal for a review of the delegate's decision. That application was submitted on his behalf by a migration agent. It was not accompanied by any other documentation at the time.
The Tribunal wrote to the Applicant on 22nd December 2006 informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the Applicant to attend the hearing at 10:00am on 12th February 2007. The Applicant's migration agent submitted the Response to Hearing Invitation signed by the Applicant indicating that he wished to attend and would require the assistance of an interpreter in the Mandarin dialect of the Chinese language.
The Applicant attended the Tribunal hearing and gave evidence. He provided with him a document from the Christian Assembly of Sydney confirming that he had been attending and worshiping at that particular church since August 2006. At the hearing the Tribunal noted the Applicant's claim that he had become a Christian in China and attended religious gatherings in the underground Christian church. In particular he claimed that Christianity appealed to him as it was against the practice of abortion. He claimed to have become a Christian and was baptised on 1st June 2004. His claim for a protection visa arose because he claimed a fear of persecution in China on account of his religion.
The Applicant claimed to have been questioned, interrogated and threatened many times by the Public Security Bureau (PSB). He claimed that he was detained by the PSB for two weeks in October 2005 and for a month in February 2006. He claimed that each time he was arrested he was mistreated and tortured but never gave up his firm political opinions and religious beliefs and refused to attend religious activities at an official church. He also claimed that his wife had been mistreated and had been pressured to have an abortion.
After the hearing the Tribunal wrote to the Applicant care of his migration agent on 14th February 2007. That letter was headed Invitation to Comment on Information and was clearly intended to comply with the requirements of s.424A of the Migration Act. A copy of the Tribunal's letter can be found at pages 78 and 79 of the Court Book. In the letter the Tribunal told the Applicant that it had information that would, subject to any comments that he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.
The letter then set out a number of pieces of information relating to the Applicant's claims of having been arrested and detained in October 2005 and February 2006. It related to information given to the Departmental interview about his Christian beliefs and related to a translated copy of his wife's medical records. The letter told the Applicant why the Tribunal considered the information to be relevant to his claim and invited him to comment in writing by 9th March 2007.
On that date the Applicant's migration agent did provide comments to the Tribunal in reply to the s.424A letter. Those comments came in the form of a declaration in English signed by the Applicant. A copy of that declaration can be found at pages 81 and 82 of the Court Book. The Applicant referred to the first time that he was detained in October 2005, said that he was put in a small cell of a detention centre and subjected to interrogations every day by the police. He said that he was punished, had to work at a construction site but was detained at the detention centre overnight. He complained of not having received a transcription or a recording tape of the Departmental interview. He said:
I am not sure that it is my mistakes or the ones caused by the interpreter. However, it is the fact that I was detained by the PSB for the first time in October 2005 after I was caught distributing propaganda materials.
The Applicant also confirmed that he was detained for one month after he was again caught distributing propaganda materials in February 2006. He confirmed that he clearly remembered that he had said that his denomination had been Christian Assembly when he was asked what kind of a Christian he had been at the Departmental interview. He also stated:
It is impossible for any doctors at any hospitals in China dare to say, openly, that anyone has ‘forced’ abortion; otherwise, he or she must be subjected to severe punishment. Who dare tell the truth under the Communist dictatorship? Particularly, ‘abortion’ is a very sensitive issue.
The Tribunal handed down its decision on 29th March 2007. A copy of the Tribunal decision record can be found at pages 88 through to 106 of the Court Book. In the decision record the Tribunal sets out the Applicant's evidence in his application for a protection visa and details of the Applicant's Departmental interview on 10th October 2006. The Tribunal also summarised the Applicant's evidence to the Tribunal on 12th February 2007. The decision record refers to the s.424A letter and the Applicant's comments in writing. The Tribunal also considered Independent country information about Christian beliefs, and practices about forced abortions and sterilisations in Fujian Province, which was where the Applicant came from, and that included two reports from the Department of Foreign Affairs and Trade and a report from a Political Councillor of the Canadian Embassy in Beijing.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 99 through to 106 of the Court Book. The Tribunal accepted on the basis of the Applicant's Chinese identity card and the claims in his application for a protection visa that the Applicant was a national of China. The Tribunal noted the Applicant's claims that he would be persecuted if he were to return to China because of his practice of Christianity in an underground church but the Tribunal said that it did not accept the Applicant's claims.
The Tribunal then set out on pages 99 and 100 of the Court Book a number of reasons as to why it did not accept the Applicant's claims. Those reasons included the Applicant's superficial and limited knowledge of Christianity and Christian religious practice, both at the Tribunal hearing and at the Departmental interview. The Tribunal referred to the Applicant's written comments on 9th March 2007 in reply to the s.424A letter. The Tribunal referred to the Applicant's lack of understanding of the significance of Easter despite its being one of the most important festivals in Christian religion, the Applicant's lack of understanding of the significance of Christmas, which is another important Christian festival, and whilst the Applicant demonstrated some understanding of the relevance of the baptism ceremony at the hearing, he was not able to explain the significance of water in the ceremony and that baptism represented a spiritual and physical cleansing.
The Tribunal accepted the Applicant demonstrated some knowledge of Christianity in his responses at the hearing but had this to say:
The applicant's responses at hearing appeared to be rehearsed and he was unable to provide detailed answers. They do not overcome the Tribunal's concerns about his lack of knowledge or understanding of the other key aspects of Christian beliefs and practice.[1]
The Tribunal did not accept the Applicant's claims that he was a committed Christian who regularly attended underground Christian gatherings or house churches in China.
[1] See Court Book at page 100
The Tribunal did not accept the Applicant's claim of church attendance on a regular basis since he arrived in Australia and went on to say:
Even if the applicant has attended church in Australia, the applicant has not satisfied the Tribunal that his conduct in attending church was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal must therefore disregard his conduct in this regard in accordance with sub‑section 91R(3) of the Act.[2]
The Tribunal was not satisfied on the information before it that the Applicant was a practising Christian or that there was a real chance that he would become involved in practising Christianity in underground churches if he were to return to China and therefore was not satisfied that he had well-founded fear of being persecuted for reasons of his religion.
[2] See Court Book at pages 100-101
The Tribunal then considered the Applicant's claims regarding the fact that his wife was forced to have an abortion in 2003 after she was pregnant with their third child. The Tribunal accepted that the Applicant's wife may have become pregnant for the third time but did not accept his claim that she was forced to have an abortion. The Tribunal set out at pages 101 and 102 why it did not accept that claim, namely, that it was inconsistent with Independent country information and that it was not satisfied there was any independent evidence to support his claim that the wife was forced to have an abortion.
The Tribunal did not, in summary, accept that the Applicant's wife was forced to have an abortion or a forced sterilisation and was not satisfied therefore that he had a well-founded fear of persecution because of his wife's abortion or because he had two children. The Tribunal considered a claim that the Applicant had been detained for distributing material protesting against forced abortion but did not accept it. At pages 102 and 103 it set out its reasons, including its previous finding that it did not accept his claim that his wife was forced to have an abortion and about the inconsistency of his evidence.
The Tribunal also referred to the Applicant's comments in reply to the s.424A letter. In summary, the Tribunal said:
Given these inconsistencies in these key aspects of the applicant's claims, the Tribunal does not accept the applicant's claims that he distributed propaganda material against forced abortions, the one-child policy and women's rights and that he was arrested and detained in 2005 and February 2006 as he claims.[3]
The Tribunal did not accept the Applicant's claim that he was a particular dissident. The Tribunal referred to documentation produced by the Applicant but did not accept that the Applicant had given a credible account of key aspects of his claim.
[3] See Court Book at page 103
The Tribunal considered the Applicant's use of a false passport but was not satisfied that the fact that he had left China on a false passport demonstrated that he was of adverse interest to Chinese authorities for his political opinion or his religion.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in sub-s.36(2) for a protection visa. The Tribunal affirmed the decision not to grant the Applicant a visa.
Application for Judicial Review
In the Applicant's application he sets out two grounds, namely, that there was an error of law in the Tribunal's decision constituting jurisdictional error and procedural error constituting an absence of natural justice. In particular, he claimed that his evidence had been misstated or misunderstood by the Tribunal and that he had not been provided a transcript or a tape-recording in respect of his Departmental interview. The second particular was that the Tribunal had made an incorrect finding in relation to his important claims. Third, he complained that the Tribunal failed to comply with the obligation under s.424A(1) of the Migration Act in respect of the information about his wife's abortion.
The Applicant did not provide any written outline of submissions but attended Court on the hearing of this matter and made oral submissions. In particular, he said that the Tribunal had said that in Fujian Province there was no abortion, but that was incorrect. He complained that he had not been sent a written document before the Tribunal hearing. What he meant was that he claimed to have not received a copy of the submissions prepared on behalf of the First Respondent Minister. The submissions I see were filed at the Court on 18th July 2007 prepared by Mr David Godwin of counsel. Mr Godwin told the Court that the Applicant had been sent a copy of those submissions.
Nevertheless, in order to ensure that the Applicant was aware of the submissions on behalf of the Minister, I arranged for the Applicant to receive another copy of the submissions and the interpreter translated those submissions to the Applicant. The Applicant complained that he did not have sufficient time to obtain advice on those submissions so I adjourned the proceedings until 11:15am the following day, 1st August 2007.
The Applicant then attended Court on 1st August and told the Court that he had difficulties about the account of his interview with the Departmental officer and what he was reported as saying to the Department was different from what he said to the Tribunal. He complained that he had not received a tape or a transcript of his evidence to the Department. He said that the interview was conducted with the aid of a telephone interpreter. He told the Court that the Court should be able to ascertain where jurisdictional error lay on behalf of the Tribunal.
Turning to the Applicant's claims in his application, I am not of the view that the Applicant has any entitlement to receive any tape‑recording or transcript of an interview with an officer of the Department of Immigration & Citizenship. The Applicant is certainly entitled to receive a tape-recording of his evidence to the Refugee Review Tribunal, but that is a different matter. The Applicant in his first ground takes issue with what he is reported to have said at the Departmental hearing, but in my view his complaint is a challenge to the Tribunal's factual findings and is in effect a request for the Court to conduct a merits review. That is not available on judicial review as I have explained.
In respect of the Applicant's claim that the Tribunal made an incorrect finding in relation to his important claims about his religious denomination, saying that the interpreter was unable to interpret his denomination properly, the Tribunal made no finding one way or the other about that particular issue and it clearly had no bearing on the Tribunal's reasoning. The Tribunal did take into account, however, his assertion that there had been a mistake. I am satisfied that it was accepted that the Applicant claimed to be a member of the denomination in Australia which he had claimed. In my view, nothing turns on this point.
As far as the failure to comply with s.424A of the Migration Act is concerned, the Applicant's claims relate first of all to Independent country information to which the Tribunal referred when dealing with the issue of his wife's abortion. This information falls within the exception set out in sub-section 424A(3)(a) of the Migration Act, and sub‑section 424A(1) has no effect. I am referred by counsel for the Minister to Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 and also SZFLL v Minister for Immigration & Citizenship [2007] FCA 355.
The Applicant also complained that the Tribunal considered the information that there is a contradiction between his evidence that forced abortions were common and the fact that it would be "impossible for any doctors at any hospitals in China to say openly that anyone has a forced abortion". He claims that that is an indication the Tribunal failed to comply with its obligations under sub-section 424A(1). First of all, though the evidence to which he refers was evidence given by the Applicant to the Tribunal for the purpose of his application, it therefore comes under the exception of s.424A(3)(b) of the Act. Any finding as to a contradiction in evidence is not in any way a breach of s.424A because it does not apply to the Tribunal's subjective appraisals or thought process or determinations (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]).
The Applicant claims that he never ever believed that his application was assessed by the Tribunal fairly and carefully. Whilst that may be a summary of his claims, if it is an assessment of bias or lack of good faith on the part of the Tribunal there is no evidence in support of that and it is well established that such a claim of bad faith on the part of a decision-maker is a serious allegation which must be strictly alleged and proved. See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43], and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 where at [16] the Full Court of the Federal Court said:
It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves.
There is no evidence of lack of good faith or bias. The Applicant has not demonstrated any jurisdictional error. I am mindful of the fact that the Applicant is not legally represented. I have considered the Tribunal decision and supporting material independently of the Applicant's claims and the First Respondent's submissions. There is no jurisdictional error that I can discern. It must follow that the decision of the Tribunal is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Thus as a privative clause decision, it is not subject to orders in the nature certiorari or mandamus or prohibition or a declaration of invalidity. It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The amount sought is $6,000.00. Mr O'Brien for the Minister concedes that is higher than the amount that the Court would normally award. The Applicant continues to dispute that he received the outline of submissions before the hearing. The circumstances of this matter are that the application came before the Court on a First Court Date on 14th May 2007. It was listed for final hearing on 11th July but that hearing had to be vacated due to the unavailability of the Court. On 16th July the application was mentioned before me and adjourned until 11:30am on 31st July for Final Hearing. The Applicant attended on that day and the issue of the Applicant's claim of not having received the outline of submissions was made.
I would comment that claims by applicants that they do not receive an outline of submissions from the Minister's lawyers are extremely common and are a cause of delay in hearing these proceedings. It is important, however, in my view that the Court satisfies itself that an applicant, especially one who is unrepresented, has an opportunity to understand what case the Minister's lawyers will be arguing. The proceedings were adjourned until 1st August to allow the Applicant to prepare whatever submissions he wished to make in reply to the submissions on behalf of the Minister and the application was then adjourned until today for judgment.
I am mindful of the fact that it was not the fault of either party that the application could not proceed to a Final Hearing on 11th July and that a further mention on 16th July was necessary. I am of the view that this is a matter for a costs order in favour of the Minister who was successful. I am also mindful of the fact that costs are discretionary, and in my discretion I consider that an appropriate order for costs is $5,500.00, not the $6,000.00 that the Minister seeks.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 14 August 2007
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