SZLCT v Minister for Immigration
[2008] FMCA 191
•22 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLCT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 191 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – whether motivation to practise Christianity in Australia was a determinative issue – s.91R (3) of the Act applied - procedural fairness – credibility – fact finding not the function of judicial review – whether duty of RRT to investigate claims. |
| Judiciary Act 1903, s.39B Migration Act 1958, ss.5, 36, 65, 91R, 91S, 422B, 424A, 425, 426, 427, 474 |
| SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZJNZ v Minister for Immigration & Citizenship [2007] FMCA 980 SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 Re Minster for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v Commonwealthof Australia (1998) 197 CLR 510 Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 (29 August 2002) WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 |
| Applicant: | SZLCT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2233 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 29 January 2008 |
| Date of last submission: | 29 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 19 July 2007, the amended application filed on 11 December 2007, and the [further] amended application filed on 7 January 2008 are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2233 of 2007
| SZLCT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 29 June 2007 and notified to the applicant by facsimile dated 29 June 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 29 April 1967 and was aged 40 years at the time of his application for a protection visa.
The applicant claims to be a national of China, of Han ethnicity, and of Christian faith.
The applicant arrived in Australia on 15 March 2007 on a false South Korean passport obtained in Malaysia issued in a false name, on a business visitor’s visa.
The applicant lodged an application for a Protection (Class XA) visa on 13 April 2007 on the basis that he feared harm if he were to return to China because of his former Falun Gong activities and because he is now associated with an underground Christian college (CB 123–124). He claims to fear being arrested and imprisoned and subjected to physical and mental torture and being unable to practice his Christian religion free of harassment from the authorities.
He claims to have practised Falun Gong from 2002 and was arrested by officers of the Public Security Bureau (PSB) and detained for three months and beaten. He claims that police continued looking for him after his release, so he sought refuge with a missionary with an underground Christian college, where he became a Christian and a resident student.
He claims that a friend helped him to escape from China via Malaysia to Australia.
On 19 April 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework) (CB 127–132).
On 23 April 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 133 – 137).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 1 May 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 16 May 2007 to give oral evidence and present arguments (CB 143-144).
On 8 May 2007 the applicant’s adviser provided written submissions to the Tribunal (CB 145–179), enclosing supporting documentation and setting out country information about the treatment of Falun Gong practitioners and underground Christian churches in China and submitting that the applicant fears persecution with respect to his religion as a member of the underground Christian college should he return to China.
On 28 May 2007 the Tribunal sent the applicant a letter inviting him to comment on information pursuant to s.424A of the Act (CB 188-194). On 4 June 2007 the applicant’s legal representatives provided a response to the s.424A letter (CB 195-197).
The applicant’s claims and evidence (CB 210–233)
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 210–211). It also summarised the applicant’s adviser’s submissions and accompanying documentation provided prior to the Tribunal hearing (CB 211–212).
The Tribunal further summarised the evidence of the applicant at the Tribunal hearing, (noting that he was represented in relation to the review by his registered migration agent), including that:
·he had previously come to Australia between 1996 – 1999 in relation to his clothes business. He was unsuccessful in obtaining a long stay business visa, but continued to stay and work in Australia unlawfully.
·in 1999, in Australia, he joined Yi Guan Dao which was repressed in China and so applied for protection as a refugee and as a result his wife forced him to return to China to divorce her. He was not aware of the outcome of this earlier protection visa application before he returned to China.
·he lived at the same address in Shenyang China from 1999 to 2007 following the divorce; he no longer has contact with his ex-wife and child; he was unable to find employment and supported himself on his savings.
·in 2002, he started to practice Falun Gong in China; he was introduced to it by a friend; he went to his friend’s place to get information on Falun Gong on an average of four to five times a week; he read books and practised Falun Gong; he practised for about three to four years; he stopped practising after he was arrested in March 2006 and detained for 3 months; he did not wish to answer questions put to him by the Tribunal concerning his knowledge of the essential beliefs of Falun Gong since he is now a genuine Christian and he was severely harmed when detained by the PSB for his practice of Falun Gong (although later at the hearing he agreed to answer questions about his knowledge and practice of Falun Gong).
·in July 2006 he sought help from a Christian missionary and resided at the college; on 16 December 2006 he was baptised; he did several months of missionary work.
·in January 2007, the PSB came to his place in Beijing and asked him questions about his engagement in anti-government activity, but let him go; churches operated within companies in China; he continued to study the Bible in Australia and assists others in this regard whilst in detention at Villawood. The Tribunal noted that the statement from a Pastor from the Hillsong Emerge Centre says that the applicant attended Bible studies with the Church regularly on Sundays.
·he thought he would not be able to get out of China on his own passport and so obtained the Korean passport in Malaysia; he told the DIMA officer at the airport on arrival that the most serious harm was during the Falun Gong period so he told the officer about that experience; he did not mention to the officer that he was a Christian and feared persecution in China for that reason because he thought there might be “chaos” and he had no evidence to prove it.
On 28 May 2007 the Tribunal wrote to the applicant in accordance with its obligations under s.424A of the Act indicating its concerns based on information provided by the applicant on the following different occasions:
·in his earlier 1997 protection visa application
·to airport officials on his 2007 arrival in Australia
·in his present protection visa application
·in his oral evidence before the Tribunal (CB 188–194),
and inviting the applicant to comment thereon.
On 4 June 2007 the applicant’s adviser responded to each of the Tribunal’s concerns set out in the s.424A letter (CB 195–197), and also enclosed country information.
The Tribunal’s findings and reasons (CB 233–237)
The Tribunal made the following findings, including that:
·the applicant’s evidence about his practice of Falun Gong was neither credible nor truthful.
·the applicant was not a Falun Gong practitioner in China between 2002 and 2006.
·he was unable to demonstrate a rudimentary knowledge of the basic movements and verses of Falun Gong.
·he was therefore not detained for 3 months in 2006 for his practice of Falun Gong.
·the applicant did not attend an underground Christian college from July 2006 as claimed; and was not a baptised Christian.
·the applicant was not a practising Christian in China and he has embraced Christianity in Australia only since his arrival and subsequent detention in Villawood.
In summary, the Tribunal concluded (at CB 237) that:
The applicant’s evidence about his introduction to, and acceptance of, the Christian religion in China is unreliable, not credible and inconsistent with information otherwise provided by him to DIAC. These inconsistencies have been put to him for comment. The Tribunal has considered his responses but is not persuaded by them and essentially these inconsistencies have not been satisfactorily resolved. The Tribunal does not accept that the applicant joined an underground Christian college in Shandong in July 2006 as he has claimed. It does not accept that he was a practising Christian in China … the applicant has engaged in conduct related to the study and practice of the Christian religion in detention in order to create a claim for refugee status. On this basis, in accordance with s.91R(3) the Tribunal disregards these actions in deciding whether the applicant has a well-founded fear of persecution in China …
… the applicant would [not] seek to involve himself in an underground Christian church if he returns to China and furthermore there is no evidence before it to suggest that he has any interest in Falun Gong. It concludes that he will not seek to practise or become involved with Falun Gong …
Tthe Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of religion or for any other Convention reason should he return to China, either now or in the reasonably foreseeable future and is not satisfied that he is a refugee.
The proceedings before this Court
The applicant filed the application in this Court on 19 July 2007 setting out two grounds for review of the Tribunal’s decision.
On 11 December 2007 the applicant filed an amended application setting out one ground for review.
On 7 January 2008, the applicant filed a (further) amended application referring to grounds set out in the applicant’s affidavit in support filed 7 January 2008.
The applicant appeared in person before this Court on 29 January 2008 with the assistance of a Mandarin interpreter. Mr Johnson appeared for the first respondent.
Grounds of application
The grounds of the application are:
1. Protection visa (seeking asylum).
2. My life will have great danger if Australia Government send me back to China.
Grounds 1 and 2 of the application
Neither of Grounds 1 and 2 of the application disclose any legal basis for review.
Accordingly, Grounds 1 and 2 of the application are rejected.
Grounds of the amended application
The grounds of the amended application are:
1. The Second Respondent committed jurisdictional error by failing to comply with the mandatory provisions of s.425 of the Act by failing to identify to the Applicant all relevant issues arising in relation to the decision under review.
Particulars:
a)In affirming the decision of a delegate of the First Respondent to refuse the application for a protection visa, the Second Respondent disregarded the Applicant's Christian activities in Australia on the basis that those activities were done to strengthen his claim for refugee status: per s.91R(3) of the Act.
b)The question of the Applicant's motivation was an issue in the case before the Second Respondent, as s.91R of the Act required his conduct in Australia to be disregarded unless he satisfied the Second Respondent about his motivation.
c)The Second Respondent did not identify the Applicant's motivations for his activities in Australia as being relevant, either in writing (whether written pursuant to s.424A of the Act or otherwise), or orally at the oral hearing.
Ground 1 of the amended application
The applicant contends that the Tribunal failed to identify to him at the hearing (pursuant to s.425(1)) or in writing (pursuant to s.424A) the issue of whether his Christian activities in Australia were motivated by his seeking to strengthen his claim for refugee status. It therefore failed to give him the opportunity to give evidence and make submissions about this issue before reaching its adverse conclusion on the matter and hence disregarding his conduct in Australia under s.91R(3) of the Act.
I consider that the Tribunal correctly identified to the applicant at the hearing that the critical issues for its determination were whether it accepted the applicant’s claims to have been a Falun Gong practitioner in China, whether he had been persecuted and detained for his Falun Gong practice, whether he had sought refuge from persecution for his Falun Gong practice at the underground Christian college, and whether he had then converted to Christianity in China.
In this regard, I am satisfied that the Tribunal devoted a considerable amount of time to an exchange of questions and answers with the applicant on each of these issues, as summarised in the Tribunal decision record (at CB 215-221).
I am therefore satisfied that the Tribunal identified clearly to the applicant and gave him sufficient opportunity at the hearing to give evidence and make submissions on these determinative issues before reaching its conclusion on these matters, in accordance with the principles enunciated by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [33]–[48].
The Tribunal further provided clear particulars to the applicant in the s.424A letter of information upon which it might draw an adverse conclusion that the applicant is not entitled to a protection visa. It clearly articulated its concerns, and the relevance of those concerns, in particular that if the applicant had indeed become a Christian as he claimed in December 2006, and had at that time abandoned all beliefs in Falun Gong from March 2006, why he would tell the DIMAC official on his arrival in Australia that the reason he feared returning to China was his practice of Falun Gong and why he made no mention of his conversion to Christianity.
It also indicated its concerns over inconsistencies in the applicant’s evidence over where he resided in China, casting doubts over his claim that he went to live at the Christian college from July 2006.
It was thus apparent at the hearing that the credibility of the applicant’s claims on these matters was important and the Tribunal gave the applicant the opportunity to respond, which he did, to the inconsistencies in the information provided, although it would seem that the Tribunal was not required to do so.
In this regard, it is well-settled that a proper construction of the word information in the context of s.424A, and hence what information must be given to an applicant for comment or response, does not extend to the Tribunal’s subjective thought processes or appraisals, including its disbelief of the applicant’s evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
It is also the case that the Tribunal was not required to put to the applicant any concerns it may have had in regard to the letter from Pastor Alosio Waininau of Hillsong Emerge Centre concerning the applicant’s Christian beliefs and practice whilst in detention at Villawood, even though this was additional evidence put by the applicant’s adviser to the Tribunal which was not before the delegate. This letter clearly fell within the statutory exception under s.424A(3)(b), being information which “the applicant gave for the purpose of the application for review.”
The Tribunal recognised in the circumstances of this case that the determinative issues concerning the applicant’s claims in relation to his practice of Falun Gong and his claims to be a Christian, were clearly inter-related issues for the following reasons:
·the applicant’s detention, followed by continuing harassment by police for his practice of Falun Gong led to his seeking refuge at the missionary college in the Shandong Province where he learnt about and eventually became baptised as a Christian in December 2006
·the applicant volunteering to the official at his airport interview that his religion was Falun Gong, with no mention of his Christian beliefs; that he did not wish to return to China because he is a Falun Gong practitioner; that he fears persecution in this regard as police have his record of arrest in March 2006 and his 3 month detention for his practice of Falun Gong; and that he last attended Falun Gong activities in Shenyang 2-3 months before his arrival in Australia
·inconsistencies in his evidence that he had resided only in Shenyang throughout his stay in China, and his evidence that he had sought refuge and lived at the Christian college in Shandong province.
On the basis of its rejection of the applicant’s claim in relation to Falun Gong and his claimed detention for its practice, the Tribunal did not accept that the applicant had any reason to seek refuge at or attend the Christian college and be introduced to the Christian faith, nor to be involved in any of the Christian college activities, including his being baptised (CB 235).
Given these findings, I consider that the Tribunal properly considered that the issue of the applicant’s motivation in subsequently practising Christianity in Australia was consequential upon its findings on the determinative issues that the applicant’s claims to have practised Falun Gong, and then to be a practising Christian, could not be believed.
I accept that the Tribunal was not bound therefore to put to the applicant why he was motivated to practise Christianity in Villawood for his comment or response since it did not attract the operation of s.425(1) in accordance with the principles in SZBEL, at [33]-[48]. This approach is consistent with the approach adopted by Cameron FM in SZJNZ v Minister for Immigration & Citizenship [2007] FMCA 980 where a similar argument was raised by the applicant in that case.
Under s.91R(3), in determining whether the applicant has a well-founded fear of persecution for a Convention reason, the Tribunal is required to disregard any conduct engaged in by the applicant in Australia: (s.91R(3)(a)) unless the applicant satisfies it that he engaged in his Christian practice in detention otherwise that for the purpose of strengthening his claim to be a refugee: (s.91R(3)(b)). If the applicant does not satisfy the Tribunal on this point, then it is bound to disregard the impugned conduct.
In considering s.91R(3), the Tribunal stated that:
It is the Tribunal’s view that the applicant was not a practising Christian in China and he has embraced Christianity only since his arrival in Australia and his detention in Villawood after his arrival on a fraudulent Korean passport. In the first place the Tribunal has rejected the applicant’ claim that he practised Falun Gong for 4 years. For the following reasons the Tribunal concludes that he was not a practising and baptised Christian in China as he claimed …
I consider that on the basis of the Tribunal’s findings on the determinative inter-related issues, it was clearly open to it to conclude that it did not accept that the applicant’s practice of Christianity in detention was genuine and that it was only engaged in by him to buttress his claim for refugee status. Having so found, it was bound to apply s.91R(3) and disregard this conduct in determining whether the applicant had a well-founded fear of persecution in China.
In SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 (27 June 2007) Buchanan J held that, at [24]:
I do not accept … that there was a positive obligation on the RRT to put the allegation [that he had engaged in the practice of Christianity in Australia to strengthen his claim to be a refugee] to him. Ultimately the burden under s.91R(3) lay on the appellant to satisfy the RRT about his motivation before the RRT was permitted to pay any regard to his conduct in Australia … having regard to the terms of s.91R(3). It was ultimately a matter for the appellant to satisfy the RRT about his motivation.
And at [31]:
The RRT was not obliged to draw it to the appellant’s attention or to warn him that it would disregard material about his conduct in Australia if he did not satisfy the RRT that the reason for the conduct was genuine.
Ultimately, however, Buchanan J was persuaded that the question of the appellant’s motivation in the circumstances of the case before him was a determinative issue in accordance with the principles in SZBEL and that the applicant had not been given a proper opportunity to give evidence and present arguments on the issue at the hearing pursuant to s.425(1). As stated above, however, I do not consider that the applicant’s motivation in the present case can be similarly characterised as a determinative or dispositive issue.
It is also apparent in the present case that the following interchange demonstrates that the Tribunal raised the issue of the applicant’s motivation for practising Christianity in Australia at the Tribunal hearing:
MS POPE: The evidence suggests that since you have been in detention at Villawood you have been in contact and you have learned from the people from Hill Song Church. You claim that you embraced Christianity in China in late 2006 and you have provided evidence to support that claim and I will take that evidence into account but nevertheless your oral evidence here today certainly raises other issues and I may conclude that you didn’t embrace Christianity in China and that you have only done that since you have been in detention in Australia and I have also to consider whether you have embraced Christianity in Australia simply for the purpose of enhancing your claim to protection.
So they are the difficulties that I have identified this far but some of that information I’m obliged to put to you in writing. For example, the information that was gathered by the officer at the airport and to which I have referred this afternoon, I must put that in writing and I’ll do that. Now is there anything further finally that you wish to say?
THE INTERPRETER: Finally I really hope that member please review my case on a justice and fair basis and finally with the name of God bless every one of you.
MS POPE: I’m going to ask your adviser whether there is anything she would like to say now.
THE ADVISER: No, I believe that everything has been covered.
MS POPE: If there is anything further you can certainly add that in response to the letter that I will send.
THE ADVISER: Yes, the only thing I was going to say that just member your comments and that your – the evidence suggests that [the applicant] has been practising - has been worshipping with the Hill Song Church here but that his oral evidence here raises other issues, I wondered exactly what those other issues were but you will address those?
MS POPE: Well, no, I mean clearly I’ll make it very clear now. The other issues, the claim has been made that you practised Falun Gong, that you were detained for that reason and that you suffered persecution for that reason and it is open to me to find that that is not in fact supported by the oral evidence today.
THE ADVISER: So not other issues to do with Christianity?
MS POPE: Not to do with Christianity, no, no but, you know, as I’ve made clear the issue of whether or not the Christianity has been embraced in Australia for the purpose of enhancing the claim for refugee status is something clearly that I will be addressing. Okay, all right, well I’m very sorry that this has gone on for so long ….(transcript, 16 May 2007, pages 58-59).
The Tribunal clearly raised the matter with the applicant and his adviser and gave them a general invitation to comment further. I accept, however, that from a reading of the full text, it could be construed that the applicant could have been left with an expectation that this matter of his motivation to practise Christianity in detention would be addressed in the s424A letter which the Tribunal foreshadowed would be sent to the applicant, although it would seem that the Tribunal did not consider it information which it was obliged to put to him in the letter.
Even taking the matter at its highest, the Tribunal was not obliged to put its subjective thought processes concerning its disbelief of the applicant’s credibility to him in the s.424A letter. Since it had no obligation to put these matters to him for comment, then any expectation the applicant might have had, had no legal significance as the applicant’s opportunity to comment or respond was not adversely affected. As relevantly observed by the High Court in Re Minster for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at [34]:
… what must be demonstrated is unfairness, not merely departure from a representation.
I am therefore satisfied that there has been no breach of the Tribunal’s obligations under s.425 and s.424A of the Act and that it accorded the applicant procedural fairness within the legislative framework of the natural justice hearing rule: (s.422B(1) of the Act).
Accordingly, Ground 1 of the amended application is not made out.
Grounds of the [further] amended application
The ground of the [further] amended application appears to be set out in the accompanying affidavit of the applicant filed on 7 January 2008, as follows:
The visa applicant did not make proper or suitable his application with respect to RRT and applicant could not get a Barrister in relation to his case when the applicant arrived to Australia.
The applicant does not have contact to get legal advice at the moment.
I do not consider that this ground discloses any legal basis for review.
Accordingly, the ground of the [further] amended application is rejected.
The applicant’s written submissions
In an undated letter addressed to the Court and attached to the applicant’s affidavit filed 7 January 2008, the applicant states:
I came to Australia at 15th March 2007 for protection and I was refused by RRT decision at 29 June. Two important of the reasons that RRT refused me is RRT do not believe I am a Christian and no not believe I was persecuted by Chinese Government. I think RRT committed jurisdictional error by ignoring my real conditions in China and do not give me any chances to prove it. This jurisdictional error may cause me risk my life in China. Now I have got a very important evident to prove I was a Christian in China.
The addition evident is a VCD disk to from my Christian friend recorded that I joined in the Church activities in China at Christmas Day in 2006.
To the extent to which the applicant’s submission seeks to challenge the findings of fact made by the Tribunal concerning his claims to be a Christian and to be persecuted in China, it is not for this Court to engage in impermissible merits review, nor is it the task of this Court to substitute an alternate finding on the merits of an applicant’s case.
To the extent to which this submission asserts that the Tribunal ignored the applicant’s claims, I consider that it gave careful attention to the matters raised by the applicant and I adopt my reasoning above under ground 1 of the amended application in the present context. I consider that the Tribunal’s findings were open to it on all the evidence before it, and that it clearly articulated its reasons for rejecting the applicant’s claims based on its findings that the applicant’s evidence lacked credibility. The Tribunal’s conclusion in this regard was a finding of fact par excellence: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67].
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealthof Australia (1998) 197 CLR 510 at 560 [137].
I therefore detect no jurisdictional error on the basis of the applicant’s written submissions.
The applicant’s oral submissions
In his oral submissions to this Court, the applicant raised two further issues namely that “the interpreter didn’t do the job properly”: (transcript, 29/1/08, p.7) and that the “RRT didn’t conduct any investigation on my case”: (transcript, 29/1/08, p.8).
In regard to the quality of the interpreter at the Tribunal hearing, the applicant concedes that neither he nor his adviser made any complaint at the time to the Tribunal, either at or after the Tribunal hearing and he had done nothing to bring any concerns in this regard to the attention of the Tribunal.
Indeed, it is apparent that the Tribunal expressly raised the matter with the applicant during the hearing:
MS POPE: We’ve been using the interpreter now for some time. Do you have any difficulties understanding the interpreter?
INTERPRETER: No.
MS POPE: Its important that you understand that the interpreter is here to enable us to speak to each other so the interpreter will not comment on or elaborate on anything you say but is here purely to enable us to speak to each other and the interpreter is bound by a strict code of conduct to treat these proceedings as confidential: (transcript, 16 May 2007, at p.4).
In these circumstances, I do not consider that any procedural fairness can be demonstrated on this basis.
In regard to any alleged duty on the Tribunal to conduct an investigation of the applicant’s case, the applicant submits that:
I have a lot of evidence such as the documents given to me by the underground church in China to prove that I was a Christian in China … and they ignored the fact that I was persecuted in China: (transcript, 29/1/08, p.8-9),
To the extent to which this submission asserts that the Tribunal failed to consider his claims, I rely on my reasoning under amended ground 1 above. To the extent that it asserts that the Tribunal had a positive or proactive duty to investigate the applicant’s claims, the applicant has not provided clear particulars of precisely what inquiries the applicant claims the Tribunal has been deficient in embarking upon in regard to his alleged persecution in China.
Whilst the Tribunal has the power under s.424 of the Act to "get any information that it considers relevant", this provision is permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 at [20]:
If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
An applicant may also request the Tribunal to call one or more persons as a witness to give oral evidence under s.426(2) of the Act. However, whilst the Tribunal must have regard to the applicant’s wishes, it has no statutory obligation to obtain any evidence (orally or otherwise) from that person or persons: s.426(3). As stated by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
…s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness …the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
In any event, in the present case the applicant stated that he did not wish to call anyone as a witness (as indicated by the applicant ticking the "No" box to questions 2c concerning an applicant calling witnesses on the Response to Hearing Invitation form: (CB 180).
The Tribunal also has the power to require the Secretary of the Department to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination: s427(1)(d). However, as stated by the Full Federal Court in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 (29 August 2002) at [24]:
…it is clear that s.427(1)(d) does not impose any legal obligation on the Tribunal.
The Tribunal further has the power to summons a person in Australia to give evidence on oath or affirmation and/or to produce documents: ss.427(3),(4). Again, however, these are discretionary provisions and do not impose any duty on the Tribunal to do so.
Whilst the Tribunal may choose to exercise these investigative and information-gathering powers, it has no obligation to do so. It is well settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73].
Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Having properly considered the evidence before it, the Tribunal in this case was thus under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason.
I therefore detect no jurisdictional error in regard to either of the applicant’s oral submissions.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 22 February 2008
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