SZLBA v Minister for Immigration
[2008] FMCA 24
•1 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 24 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s findings logical and open to it on the evidence – it was for the applicant to satisfy the Tribunal that he satisfied the criteria for a protection visa – it was not the Tribunal’s role to elicit for the applicant an elaboration of his claim which he chose not to make himself – no occasion for Tribunal to consider whether it might have been wrong – the Court should make a reasonable attempt to interpret passages in Tribunal decisions which lack complete clarity. |
| Migration Act 1958, s.424A |
| Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZLBA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2142 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 November 2007 |
| Date of Last Submission: | 29 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Ms A. Nicholl |
| Counsel for the Respondents: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2142 of 2007
| SZLBA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was involved in the pro-democracy movement. He alleges that while in China he published and distributed leaflets about the “4th of June massacre” and government corruption and that this subsequently led to him being investigated by the Public Security Bureau (“PSB”). The applicant left China for Australia where, he alleges, he has been told that there are government spies.
The applicant claims to fear persecution in China because of his political beliefs.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 21 July 2005. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 19 of the Tribunal’s decision (Court Book (“CB”) pages 125 – 140). The relevant facts are summarised below.
Protection visa application
In the applicant’s protection visa application form, he made the following claims:
a)in 1997 he printed some anti-government leaflets about the 4 June massacre and corruption as a favour for two friends who were members of an underground pro-democracy organisation;
b)the applicant printed leaflets on a number of occasions, about 5000 at a time. The government traced the leaflets to the company the applicant worked for and began to investigate the company;
c)the applicant’s pro-democracy friends helped him to escape and leave China;
d)three months after his arrival in Australia, the PSB went to the applicant’s house in China to arrest him and to search the house. The police told the applicant’s wife that he had been part of an “attempt to topple the government”. They told his wife that if he returned to China and confessed, he might get a more lenient judgment but if he stayed overseas working with pro-democracy people, then it would be a more serious crime;
e)the applicant claimed that his home was closely monitored by the PSB and he fears that he will be given a harsh penalty if he returns to China; and
f)he has been advised by his family and a colleague “that there was a summons”.
Statement to the Minister
In a statement provided to the Minister on 28 August 2006, the applicant made the following additional claims:
a)his father had studied and worked in Japan as a doctor. After the Cultural Revolution broke out, the applicant’s father was branded a “Japanese agent” and his parents were denounced and mistreated;
b)the leaflets he printed advocated political reform in China and the abolition of the Communist party and were critical of corruption and lack of freedoms;
c)he carefully carried out his printing in secrecy and “all material” was destroyed afterwards and computer files deleted;
d)he printed a number of influential articles which were distributed in China and abroad and which he identified;
e)some of the material and documents were confiscated by the Public Security departments in Shanghai, Jiangsu, Zhejiang and other places and the authorities were asked to investigate the case. Warnings were placed on some newsagencies in Shanghai; and
f)he did not seek asylum after arriving in Australia because he was afraid that Chinese spies would find him.
Tribunal review application
After lodging his review application with the Tribunal, the applicant made another request to the Minister for his intervention. In that correspondence he claimed that has become a Christian since arriving in Australia. He provided to the Minister a baptismal certificate indicating that he was baptised on 10 December 2006.
In response to a s.424A notice sent to him by the Tribunal, the applicant stated that:
a)he was afraid that Chinese government spies might find out that he was in Australia;
b)he felt it was safer not to apply for a protection visa so no-one would know that he was in Australia; and
c)although he was detained in March 2005 he did not apply for a protection visa until July 2005 because he did not know how to do so and he was not satisfied that it was safe to apply.
On 4 June 2007 the applicant’s representative told the Tribunal that the applicant had been diagnosed with a brain tumour and was seeking urgent medical treatment.
At the Tribunal hearing the applicant said that:
a)he visited a migration agent soon after he arrived in Australia to find out about applying for a protection visa but he did not have enough money to apply and he was also afraid of Chinese spies;
b)his wife was issued with a summons for her to attend court in China after the PSB had told her that he had been convicted with overturning the regime;
c)if he survived his tumour and was released from detention he would attend a Christian church although he believed there were only unofficial underground churches in China;
d)the day after he was scheduled to be deported to China (which deportation was cancelled) newspapers, including newspapers in China, published articles which referred to a Chinese Christian political dissident who was due to be deported on a particular day. The applicant provided copies of these articles to the Tribunal and said that they effectively identified him even though he was not named in them; and
e)he also provided the Tribunal with a letter from Hillsong Emerge Centre which stated that the applicant had regularly attended church services and that he was involved in a four to five week Christianity course.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal rejected the applicant’s claim of involvement in the printing of anti-government brochures in China, noting that:
i)the applicant admitted that he was not in any way involved in any political activities prior to the printing of the leaflets;
ii)this inaction caused the Tribunal to reject that the applicant was committed to the anti-government movement;
iii)the Tribunal found it implausible that the applicant would agree to engage in such significant political action purely because of a request by people with whom he had had little or no contact for a number of years;
iv)the Tribunal considered it implausible that the applicant did not think twice about using a special printing press which was rare in China and which led to easy identification;
v)the applicant gave inconsistent evidence about whether he carried out the printing process on his own or with a co-worker;
vi)the Tribunal found it implausible that the applicant did not take any steps to avoid questioning or detention after an initial interview with the PSB or his company’s security department;
vii)the Tribunal did not accept that the applicant would be informed of his alleged criminal conviction by PSB officers calling on his wife or that he would not have been given any official document or notice of it;
viii)the Tribunal was concerned about the significant delay in the applicant making his application for a protection visa, noting that the applicant did not provide a coherent explanation of how he thought his situation with the PSB would be resolved if he did not apply for a visa;
ix)the Tribunal did not accept that the applicant did not apply for protection because he was fearful of spies, considering it more likely to have been because the applicant did not intend to apply for the visa. The Tribunal found that this indicated a lack of genuine fear of persecution in the applicant and cast doubt on his claims relating to his activities in China; and
x)the applicant was able to depart China on a passport issued in his own name;
b)the Tribunal rejected that:
i)the applicant was involved in printing anti-government material;
ii)the applicant had been identified as a person who was responsible for printing anti-government leaflets;
iii)the applicant had been charged with or convicted of this or any other political offence or of departing the country after committing a crime;
iv)the applicant’s family had been under surveillance;
v)the applicant’s wife had been summonsed as a result of his conduct;
vi)the applicant was involved, or was perceived to be involved, in any political activity in China;
vii)he was involved, or perceived to be involved, with other political dissidents; or that
viii)the applicant was of any interest to the authorities;
c)the Tribunal did not accept that the applicant had a genuine commitment to Christianity, noting that:
i)the applicant had had no prior interest in religion;
ii)the applicant told the Tribunal that he decided to be baptised so that he could start a new life but did not mention his commitment to Christianity or what baptism meant;
iii)he was unable to remember who performed the miracles in the biblical story he quoted to the Tribunal; and
iv)the Tribunal did not accept that the applicant’s medical condition was affecting his ability to remember given that he was able to remember events in China which occurred earlier;
d)the Tribunal was not satisfied that the newspaper articles the applicant submitted about a Chinese Christian dissident who was about to be deported together with the fact that he was not deported would identify the applicant, noting that:
i)the articles did not expressly refer to the applicant; and
ii)the only information which the applicant claimed could lead to his identification was the reference to his (planned) departure on a particular day.
Proceedings in this Court
The grounds of the applicant’s amended application were:
a)In reaching its findings on the applicant’s credibility, his alleged involvement in printing anti-government brochures and the alleged adverse interest taken in him by the Chinese authorities, the Tribunal:
i)failed to take into account and properly consider relevant information put to it by the applicant;
ii)based its findings on an incorrect statement of the facts or a misunderstanding of the applicant’s evidence; and
iii)made illogical findings or findings not available to it on the evidence.
b)The Tribunal erred in reaching its conclusion that the applicant did not have a well-founded fear of being persecuted on the basis of his conversion to Christianity and his religion.
c)The Tribunal
i)failed to consider properly the reasonably likely consequences of the public release of information about the applicant’s cancelled deportation if the applicant is returned to China; and
ii)its conclusion that the applicant’s name would not be known because he was not named and was not deported was illogical and without foundation.
The Tribunal erred in making certain findings of fact
In the amended application the applicant supported this first asserted ground of review by reference to the following matters:
a)the applicant gave sufficient evidence concerning his motivation to become involved in the printing of anti-government brochures. The Tribunal’s reasoning on this issue was not logical and failed to consider that evidence;
b)as to the delay in seeking a protection visa, the Tribunal’s findings were speculative and based on no evidence;
c)the Tribunal erred when concluding that because the applicant obtained a passport in his own name and departed China without problems he was of no adverse interest to the authorities. The Tribunal’s findings of fact and conclusions on the issue of the applicant’s ability to travel to Australia misunderstood the evidence or wrongly characterised the facts to such an extent that it was led into legal error; and
d)the Tribunal’s conclusion that the applicant was not truthful was not supported by the evidence before the Tribunal, depended on a misstatement or misunderstanding of the evidence, was founded on illogical reasoning and unsupported assumptions and was not well-based.
As to the applicant’s claim regarding his motivation for becoming politically involved by printing anti-government brochures, the applicant’s submissions initially invite the Court to disagree with the Tribunal’s finding of fact on this subject. In circumstances such as these, where the finding was one open to the Tribunal on the evidence, such a course is not open to the Court. As to the assertion of illogicality, the Tribunal considered the applicant’s explanation that he felt strongly about the Communist Party because of the suffering his father had endured during the Cultural Revolution but noted that, notwithstanding those strong feelings, he had not been in any way involved in any political activities prior to the printing of the brochures. The Tribunal concluded that the applicant’s actions belied his claims. This was a logical and rational conclusion and one which does not disclose jurisdictional error on the part of the Tribunal.
As to the applicant’s explanation as to why he did not apply for a protection visa earlier than he did, the applicant submits that the Tribunal made a number of ill-based assumptions which were not available to it on the evidence. In the amended application these assumptions are expressed to be that:
a)as the applicant saw a migration agent a short time after arriving in Australia, the Tribunal was satisfied that he would have been aware at that time about protection visas and the system of seeking asylum; and
b)the applicant would have been aware that a claim for asylum would protect him from persecution by Chinese authorities and, by extension, any Chinese spies, the applicant claiming he was afraid to make a claim in the event that this information would become known to the Chinese authorities through spies.
These “assumptions” are inferences drawn from the evidence which was before the Tribunal. It may be argued that the inferences were wrong but there was sufficient evidence for them to be drawn. It is reasonable to infer that the applicant had some appreciation of the significance of a protection visa if he saw a migration agent about getting one and it would also be reasonable to infer that the agent conveyed some information to the applicant about the benefits of seeking protection, given that the associated expense was discussed. This is so even though that second inference includes an implicit rejection of the applicant’s evidence to the Tribunal that he thought the procedure for applying for a protection visa and the confidentiality of the procedure was not discussed with the agent (Exhibit 2, p.25). The inferences drawn by the Tribunal were logically open to it on the evidence and do not disclose jurisdictional error.
As to the applicant’s passport and his departure from China, he submitted that the Tribunal proceeded on a wrong factual basis, namely that:
… the applicant’s ability to obtain the passport and to depart the country at least a month after the PSB questioned him about the printing of the brochures and when he said that the PSB or the security section were already aware that the materials were printed at his company to be inconsistent with the country information cited above. (first full dot point, CB 143)
The applicant correctly submitted that he had never said that he had been interrogated by the PSB. Although the PSB was undertaking inquiries, the applicant’s evidence was that he had been approached only by the security department of the company in which he worked. Consequently, if the Tribunal’s conclusion was based on a belief that the applicant had been interviewed by the PSB, it was based on a false premise.
However, a more detailed examination of the Tribunal’s decision record discloses no basis to conclude that the Tribunal actually understood the applicant to have been interviewed by the PSB. In its discussion of the evidence given by the applicant at its hearing, the Tribunal records that the applicant had been approached twice by the security section of his company because the PSB were investigating the printing of the pamphlets (CB 135). The Tribunal records the applicant’s evidence that formalities required the PSB to undertake its enquiries through the security section of the applicant’s company. Implicitly, the Tribunal did not accept such an explanation because in its findings in the fourth dot point of p.21 of its decision (CB 142) it refers to the applicant being interviewed by “the PSB or the security department”. That form of words is also used in the first full dot point of p.22 of its decision (CB 143) quoted above and reflects the way the Tribunal formulated its questions at the hearing (Exhibit 2, pp.20-22). Consequently, I conclude that the reference to the PSB questioning the applicant where that appears in the quoted passage should be a reference to “the PSB or the security department” and that the matter to which the applicant refers is no more than an inaccurate expression of the Tribunal’s finding, not a mistaken finding.
However, should I be wrong in that conclusion and the correct view be that the Tribunal incorrectly found that the PSB had interviewed the applicant, such a finding is, nevertheless, merely corroborative of the Tribunal’s other findings that the applicant’s allegations were implausible and untruthful. An erroneous finding that the applicant’s evidence was inconsistent with country information does not vitiate its conclusion that the applicant’s version of events concerning the printing of the pamphlets was to be rejected. The finding that his version of events was to be rejected was the relevant finding and as long as it was logically based upon other intermediate findings of fact, as it was in this case, it is not affected by jurisdictional error. That one out of a number of intermediate findings of fact was unsupported by evidence does not, in the circumstances of this matter, invalidate the principal finding. Consequently, the fourth element of this first asserted ground of review is not made out.
Tribunal erred in concluding that the Applicant did not have a well-founded fear of being persecuted on the basis of his religion
The applicant initially submits that the Tribunal failed to make a finding of fact concerning whether he converted to Christianity as claimed but, instead, concluded that his commitment to Christianity was not genuine. This submission cannot be accepted. The Tribunal’s rejection of the applicant’s alleged commitment to Christianity necessarily involves a rejection of his claimed conversion.
The applicant additionally submitted that the Tribunal’s conclusion on the subject of his alleged Christian faith was marred by “a subjective and culturally specific expectation of how the Applicant should have demonstrated his commitment to Christianity” (fourth-fifth pages of the amended application). The applicant took the Court to passages of transcript of the hearing before the Tribunal and submitted that the Tribunal’s questioning of him manifested unspecified cultural assumptions which had the effect that his answers failed to disclose the genuineness of his faith.
It is important to note that bias is not alleged. Consequently, this is no more than an allegation that the Tribunal reached a factual conclusion which the applicant says was wrong because questions were not asked which would have led the Tribunal to what the applicant alleges was the correct conclusion. If the applicant believed that the Tribunal’s questions failed to elicit from him a proper articulation of his Christian faith then it was a matter for him to give more evidence and make further arguments at the Tribunal hearing, where it should be noted he was assisted by an adviser, which adequately demonstrated that faith. It was for him to satisfy the Tribunal that he met the criteria for a protection visa and the fact that the Tribunal may have asked him questions which failed to elicit the answers he wished to give does not relieve him of the responsibility to satisfy the Tribunal of his religious commitment. In this connection, it should also be noted that the applicant did not submit, when queried, that he had been unable to say what he wanted to say at the Tribunal hearing. Indeed, that would be a difficult submission to make given the Tribunal’s implicit invitation to the applicant to say anything he wished to say when it said:
… [Mr Applicant] unless there is anything further you want to say I am going to close the hearing at this moment.
To which the applicant responded through the interpreter:
Nothing further. (Exhibit 2, p.42)
It was also alleged that the Tribunal failed to place weight on the applicant’s claim to have had a brain tumour when it considered the fact that the applicant could not recall who fed the multitudes with five loaves and two fish and who turned water into wine. In fact, the Tribunal rejected the applicant’s explanation that his poor recollection of biblical events was due to his medical condition. It did so on the basis that he was able to remember events which occurred earlier in China.
Although the applicant submitted there was no medical evidence to support the Tribunal’s conclusion as to his claimed medical condition, this appears to be factually incorrect. Although the Tribunal did not refer to it in its reasons, it had access to the report of International Health and Medical Services dated 13 June 2007 (CB 118) which records that an MRI scan of the applicant showed no intracranial abnormality and that a bony lesion on the apex of his head appeared to have no malignant features, although its excision would be a reasonable consideration.
But in any event, it was for the applicant to make out this allegation which he failed to do to the Tribunal’s satisfaction. The conclusion reached by the Tribunal on the question of the applicant’s claimed medical condition was open to it on the evidence and the fact that it did not give weight to the allegation was, in the circumstances, a matter for it. No jurisdictional error is disclosed in respect of this element of this claim.
The applicant further submitted that the Tribunal failed to ask the applicant whether he intended to practise his claimed Christian religion were he to be returned to China. However, the transcript of the Tribunal hearing shows that the Tribunal did ask the applicant if he would continue to be involved with his church if released from detention, successfully operated upon and no longer under pressure, and also if there was any reason why he would not be able to attend church if he returned to China (Exhibit 2, pp.34-35). These passages are summarised at p.18 of the Tribunal’s decision record (CB 139). But in any event, it was for the applicant to satisfy the Tribunal that he had a well-founded fear of persecution because of the religion he wished to profess. It is not the Tribunal’s role to elicit from the applicant an elaboration of his claim which he chose not to make himself and no error is disclosed because it did not do so: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58].
The applicant also submitted that the Tribunal should have considered whether it might have been wrong concerning his religious conviction and that, were it to have done so, it would have inquired whether the applicant could have pursued his beliefs in a way which would not have attracted persecution in China. It was submitted that the Tribunal should have inquired whether the Hillsong Church, with which the applicant formed an affiliation while in the Villawood Immigration Detention Centre, was one of the churches authorised by the Chinese government. However, it is only necessary for the Tribunal to inquire if it might be wrong if there is some reason for it to doubt the correctness of the conclusions which it has reached. That is not the case here. The Tribunal discussed the evidence given by the applicant and rejected it. It did not accept that he had a genuine commitment to Christianity. Given the decisiveness of the Tribunal’s conclusion and the firmness of its opinion, it was under no obligation to explore the possibility that it might have been wrong on this point.
It was also submitted by the applicant that the Tribunal’s finding
… that a denial [sic] to practice [sic] in any church would not constitute, in the applicant’s case, persecution as defined in s.91R of the Act. (CB 144)
was unclear and ambiguous and, in any event, was not supported by the independent country information before it. It is true the meaning of the word “denial” is uncertain in this context. It could mean either the denial by the Chinese authorities of a right to worship as the applicant wished or a refusal by the applicant to worship Christianity in accordance with the strictures imposed by the Chinese government. But whichever is the case, the ultimate significance of the quoted passage does not turn on the meaning of “denial” in this sentence. Rather, it turns on the Tribunal’s decision to not accept that the applicant would engage in the practice of Christianity or in any religious activities were he to return to China (CB 143). Consequently, denial of religious freedom in China would not amount to persecution of the applicant and any refusal by him to conform with limitations on the freedom to practise religion in China would be of no consequence as he would not seek to practise anyway.
But, in my view, the correct reading of “denial” in the quoted passage is one which relates to the denial of religious freedom by the Chinese authorities. The sentence in question would have been better drafted by the inclusion of “of the right” after “denial” so the passage would read:
… that a denial of the right to practice in any church would not constitute, in the applicant’s case, persecution as defined in s.91R of the Act.
Such an amendment makes better sense of the passage in the context of the preceding findings that the applicant’s claimed religious beliefs were not genuine. A reading of the passage so that it refers to a refusal by the applicant to practise in any church, makes no real sense in the context of those preceding findings. Moreover, the general tenor of the paragraph in question is one which relates the rejection of the applicant’s claimed beliefs with the absence of a risk of persecution by the Chinese authorities. It is not concerned with a refusal by the applicant to modify his behaviour in order to avoid persecution which the second interpretation necessarily implies.
It is not the role of the Court to correct or improve the expression by the Tribunal of its decisions and the above discussion should be understood as merely a means by which to understand what the Tribunal sought to express. Given that the Tribunal’s decisions are not to be examined with an eye keenly attuned to error, the Court should make a reasonable although not strained attempt to interpret passages in Tribunal decisions which lack complete clarity. This is such a case and I conclude that in the passage in question the Tribunal was expressing a finding that the policies of the Chinese government would not, in the case of this applicant given his lack of religious conviction, amount to persecution.
For all these reasons, I find that the second asserted ground of review does not disclose jurisdictional error on the part of the Tribunal
The Tribunal failed to consider properly the reasonably likely consequences of the publication of the applicant’s cancelled deportation if the applicant is returned to China
The applicant alleged that the Tribunal failed to consider properly the reasonably likely consequences of the publicity associated with the cancellation of his deportation. He also alleged that the Tribunal’s finding that his identity would not be known because he was not identified was “illogical and without foundation”.
In support of these allegations it was submitted that the travel arrangements between the Minister’s department and the authorities in China would necessarily have involved the disclosure of the applicant’s name to the Chinese authorities. However, based on the Tribunal’s decision record, which has not been challenged, there was no evidence of this nature before the Tribunal. Nor was there any evidence referred to in the Tribunal’s decision record that the applicant was the only Chinese national whose deportation on the day in question was cancelled.
The applicant’s submission that his claim that he was
the only PRC National to be deported on that day has not been refuted or denied by the Tribunal
suggests that the Tribunal is an adversary or contradictor of the applicant’s claim for a protection visa. This is not so: Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]. In this case, the Tribunal considered the evidence before it and reached a finding which was open to it on that evidence. It noted that the applicant was not actually identified in any of the news articles which the applicant submitted to it and concluded that that information, together with the fact that he was not actually removed on the day in question, would not be sufficient to identify him.
Given the evidence before the Tribunal, this was a rational conclusion and no jurisdictional error is demonstrated on account of it.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 1 February 2008
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