SZLCK v Minister for Immigration
[2008] FMCA 113
•6 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLCK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 113 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Court cannot review Tribunal’s findings on the facts – Tribunal under no duty to investigate an applicant’s claim. |
| Migration Act 1958, ss.422B, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLCK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2290 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 February 2008 |
| Date of Last Submission: | 6 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2008 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2290 of 2007
| SZLCK |
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 born into an intellectual family, was politically active and is a Christian. He alleges that while studying in Japan he took part in demonstrations against the Chinese government and that this subsequently led to him being imprisoned. The applicant left China for Australia where, he alleges, he attends church services at Campsie Public School every Sunday.
The applicant claims to fear persecution in China because of his political activism, his religious beliefs and his membership of a particular social group, namely his family.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 23 February 2007. 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.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 89 – 97).
Protection visa application
In the applicant’s protection visa application, he made the following claims:
a)his father was a doctor and a member of the Chinese “Guo-Min-Dang” and the head of the organising committee of the local Guo-Min-Dang;
b)when the Communist Party came to power in 1949, the Guo-Min-Dang was defeated. The applicant’s father was treated as an anti-revolutionary and sent to gaol on two occasions;
c)the applicant’s family suffered during the Cultural Revolution and the applicant “passed his childhood and youth in such a political terror environment”;
d)in 1987 the applicant went to study in Japan and he lived in a building with an elderly Japanese lady who introduced him to Christianity;
e)while in Japan the applicant attended many churches, including Japanese, American and Taiwanese churches. He was baptised in May 1988 in a Taiwanese church and became a Christian;
f)he attended church activities every Sunday;
g)in 1989 the applicant became involved in political activities in Japan;
h)he attended demonstrations in Japan to protest against the actions of the Chinese government and with some friends formed the “Chinese Democratic Alliance in Japan”, of which he was a leader;
i)the applicant’s group and other protest groups organised protests against the Chinese Communist Party;
j)the applicant walked at the head of parades and made speeches to gatherings in parks to condemn the actions of the Chinese government;
k)Chinese policemen were notified of the applicant’s activities in Japan and took photographs of those activities;
l)in China the applicant’s parents were taken to a police station and interrogated;
m)the applicant’s Japanese visa expired in 1989 and he remained there without a valid visa. In 1995 he returned to China after he was “captured by Chinese policemen”;
n)in China, he was sent to gaol, tortured and forced to write a statement expressing regret over his actions;
o)the applicant did not tell the police about his religious beliefs for fear that this would lead to further problems;
p)following his release in 1998 the applicant was monitored by police and could not attend church; and
q)the applicant paid “secret money to Chinese policemen” in order to obtain his travel document to leave China.
Interview with the department
During an interview with the Department of Immigration and Citizenship (“department”) the applicant made the following additional claims:
a)he had been gaoled for three years, during which time he was beaten with electric prods and asked to confess;
b)he was charged with crimes against society;
c)he was permitted to marry whilst in prison and allowed ten conjugal visits; and
d)after his release from prison he was too frightened to go to church but prayed at home with his family.
Tribunal hearing
At the Tribunal hearing, the applicant also made these claims:
a)he was assisted with his protection visa application by a friend and he did not know what was put in the application;
b)after his release from prison in China he found it difficult to obtain employment due to discrimination against his family background and his pro-democracy activities;
c)he left China some eight years after his release from prison because there was no way for him to leave China at an earlier point;
d)the applicant’s student pro-democracy activities in Japan included holding weekly gatherings with six or seven other people to discuss human rights and democracy;
e)he did not do anything else, but after the 1989 pro-democracy movements in China the applicant went out to participate in demonstrations. He was involved for less than two months in 1989 and after 1990 had no further contact with the people who had come to his home or been in the demonstrations; and
f)the applicant was introduced to his wife by family members when he was in Japan and his wife was in Singapore. They communicated by letters and his wife visited him regularly while he was in prison. They were able to conceive a child because prison authorities gave the applicant and his wife a small cell. The applicant was unsure why they were allowed this, but it was possibly because his wife had bribed officials.
The applicant provided to the Tribunal a letter from the Reverend Tai Huynh of Grace Evangelical Church which stated that the applicant has attended bible study groups, singing rehearsals and church services at Campsie Public School every Sunday morning.
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 did not accept that while in Japan the applicant organised the formation of a pro-democracy group, walked in front of parades or made speeches critical of the Chinese government or participated in pro-democracy activities in a leadership role, noting that:
i)the applicant did not mention these claims at the hearing; and
ii)the Tribunal considered these to be significant issues which the applicant would have mentioned at the Tribunal hearing had they occurred as the applicant claimed;
b)although the Tribunal accepted that while the applicant was in Japan he became involved in pro-democracy activities to a limited extent following the Tiananmen Square massacre and also “participated in” Christianity to a limited extent, it did not accept that the applicant’s minimal involvement in pro-democracy activities in Japan would have resulted in him having any profile which would have attracted the adverse attention of Chinese authorities upon his return to China in 1995;
c)the Tribunal also did not accept the applicant’s claim that he was imprisoned in 1995, some seven years after his pro-democracy activities, noting that independent country information indicated that from at least 1992 the Chinese authorities were no longer concerned about people who had participated in such activities;
d)the Tribunal rejected the applicant’s explanation for the inconsistency between his statement in his protection visa application form that he lived at the same address from 1995 to 2006 and his claim in the statement accompanying that form that he was detained for three years from 1995 to 1998, saying that it did not accept that it was credible that the applicant would not have told the friend who filled in the protection visa application form for him about his three years of imprisonment;
e)the Tribunal considered that the evidence which indicated that the applicant was married and had a child was inconsistent with his claim to have been imprisoned from 1995 to 1998;
f)the Tribunal considered the applicant’s allegations that he and his wife married after spending little time together prior to his imprisonment as lacking credibility;
g)the Tribunal did not accept that the applicant’s parents were interrogated because of his involvement in pro-democracy demonstrations in Japan, noting that:
i)it found that the applicant only had limited involvement in pro-democracy activities; and
ii)according to the applicant’s own evidence, thousands of people were involved in pro-democracy activities in Japan;
h)consequently, the Tribunal did not accept that:
i)the applicant was subject to any adverse treatment upon his return;
ii)he was imprisoned in 1995; or that
iii)he was monitored following his release from prison in 1998;
i)the Tribunal accepted that the applicant may have practised Christianity in Japan, but found that the applicant’s evidence concerning his religious practice did not indicate that his practice of Christianity was anything other than limited in extent, noting that:
i)the applicant was unable to state the particular Christian denomination to which he belonged; and
ii)he did not claim that he suffered any harm or was imprisoned as a result of his religious practice;
j)the Tribunal did not accept the applicant’s claim that he was too frightened to practise Christianity in China after his release from prison, noting that independent country information showed that millions of people in people were able to practise Christianity at registered churches in China;
k)the Tribunal rejected the applicant’s claim that he was persecuted in China as a “house church Christian”, noting that:
i)the applicant did not claim at the Tribunal hearing that he suffered any harm as a result of his private prayers at home; and
ii)it did not accept that the applicant’s private prayers or talking to his family about Christianity established the applicant as a “house church Christian”;
l)in light of its findings that the applicant was not imprisoned, the Tribunal did not accept that the applicant had any difficulties in obtaining employment as a result of that alleged imprisonment;
m)the Tribunal considered the applicant's claims of discrimination in relation to employment on the basis of his Guo-Min-Dang links but did not accept that the applicant's evidence established that he was unable to obtain employment because of them; and
n)the Tribunal considered the applicant's claim that he has practised Christianity in Australia, but did not accept that there was anything in his evidence which indicated that he would practise Christianity in China in a way which would attract the adverse attention of the authorities and it did not accept that he would be unable or unwilling to practise Christianity in one of the registered churches in China.
The Tribunal's finding may be summarised by the following passage of its decision:
The Tribunal does not accept that the applicant is a credible witness and does not accept that he has given truthful evidence to the Tribunal in relation to much of his experiences in China or Japan. (CB 100)
Proceedings in this Court
The grounds of the application to this Court were pleaded as follows:
1. Jurisdictional error has [been] made. RRT ignored my evidences.
2. Procedural fairness has been denied. I am Christian. I fear to go back.
At the hearing today the applicant has raised the following additional issues:
a)the applicant disputes some of the Tribunal's findings; and
b)the Tribunal did not undertake investigations.
Tribunal ignored evidence
The applicant's allegation that the Tribunal ignored the evidence he put before it has not been particularised. A consideration of the Tribunal's decision record, which is summarised earlier in these reasons, demonstrates that the Tribunal considered the reasonably large amount of evidence at its disposal provided by the applicant, whether that was in his protection visa application form, the statement which accompanied it, the interview he had with the department, the evidence he gave at the Tribunal hearing and the response he made to the s.424A notice which the Tribunal gave to him.
It cannot be concluded on the facts that the Tribunal ignored the applicant's evidence. Perhaps this allegation is best considered to be an assertion that the Tribunal reached the wrong conclusions on the evidence which the applicant laid before it. If so, that allegation cannot be made out in these proceedings. The purpose of this judicial review proceeding is to determine whether the Tribunal has properly applied the law in the conduct of its proceedings and in arriving at its decision. The Court's role is to determine whether the law has been applied correctly by the Tribunal. It is for the Tribunal to make conclusions on the facts. As long as the Tribunal's factual findings were open to it on the evidence before it, as I find they were on this occasion, the Court cannot intervene on such issues. Consequently, this asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Denial of procedural fairness
The Tribunal's procedural fairness obligations have been codified in s.422B of the Act. The applicant has not particularised in what respect he alleges procedural fairness has been denied to him. Nothing contained in the evidence before the Court would suggest that the Tribunal breached its procedural fairness obligations to the applicant. As the first respondent has pointed out in submissions today, the applicant was invited to a hearing which he attended and he was given a s.424A notice to which he responded. There are no other provisions of div.4 of pt.7 of the Act which appear to have any particular relevance to this allegation or which appear to have been breached or not observed by the Tribunal.
Consequently, I cannot find that procedural fairness has been denied to the applicant by the Tribunal or that this asserted ground of review is made out.
“I am Christian”
This asserted ground of review is, I conclude, really a challenge to the Tribunal's conclusion that the applicant had no fear of persecution in China as a result of his Christian beliefs were he to return. The Tribunal considered the nature of the applicant's Christian practice, as well as the environment in China for the practice of Christianity, and concluded on the facts that the applicant's practice of Christianity would not lead him into conflict with the Chinese authorities. Although the applicant might disagree with this conclusion, it was one which was open to the Tribunal on the facts. Moreover, the applicant's evidence on the issue was clearly considered by the Tribunal. I cannot conclude that this asserted ground of review has been made out.
Challenge to fact-finding
The applicant's submissions today focussed in large part on his participation in pro-democracy activities while he was in Japan. He also made reference to his marriage. He said that he felt puzzled by the Tribunal's doubts that it had regarding his factual allegations on such issues. However, for the reasons expressed in relation to the first asserted ground of review, challenges to the Tribunal's fact-finding are not a proper basis for judicial review, except in very limited circumstances. Such circumstances do not exist in this case and thus jurisdictional error is not demonstrated by reason of the Tribunal's fact finding.
Tribunal did not undertake investigations
It is not clear from the applicant's submissions today whether he was submitting that the Tribunal should have made further inquiries into the veracity of his claims or whether he was inviting the Court to do so.
As far as the Court is concerned, it cannot consider information which was not before the Tribunal and, in any event, it is for the applicant to make out his allegations.
As far as the Tribunal is concerned, although it has a discretion to undertake investigations and to make inquiries, it has no duty to do so. The fact that the Tribunal does not undertake inquiries is not demonstrative of jurisdictional error, absent some miscarriage in the exercise of its discretion whether or not to do so. There is nothing to suggest that such discretion as the Tribunal had on such an issue has miscarried.
This asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Conclusion
As jurisdictional error has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 February 2008
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