SZLEY v Minister for Immigration - [2008] FMCA 160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLEY v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 160

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was affected by bias.

Judiciary Act 1903 (Cth), s.39B
Migration Act1958 (Cth), ss.91R(3); 424A; 474; pt.8 div.2

Applicant:

SZLEY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2525 of 2007

Judgment of:

Emmett FM

Hearing date:

12 February 2008

Date of last submission:

12 February 2008

Delivered at:

Sydney

Delivered on:

12 February 2008

REPRESENTATION

The Applicant was unrepresented although assisted by an interpreter

Counsel for the Respondent:

Mr G. Johnson

Solicitors for the Respondent:

Ms K. Hooper, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2525 of 2007

SZLEY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act and pt.8 div.2 of the Migration Act1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 24 July 2007 and handed down on 24 July 2007.
The Applicant claims to be from the People's Republic of China (“the PRC”) and of Christian faith. The Applicant arrived in Australia on 12 April 2001 having departed legally from Shanghai on a passport issued in his own name and a visa issued on 29 March 2007.
On 7 May 2007, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”).
In his protection visa application the Applicant claimed that he feared persecution by the PRC authorities by reason of his Christianity and membership of an illegal church. The Applicant claimed that he was arrested and detained by reason of his participation in organising illegal house church gatherings. The Applicant claimed to have been sent to a labour camp, lost his job and forced to pay a penalty.
On 22 May 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant's application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's protocol (“the Convention”).
On 8 June 2007, the Applicant lodged an application for review of the Delegate's decision by the Refugee Review Tribunal (“the Tribunal”).
On 20 June 2007, the Tribunal sent the Applicant an invitation to comment on information pursuant to s.424A of the Act. The Tribunal's letter identified the information that the Tribunal considered would be part of the reason for firming the decision under review. The letter explained to the Applicant the relevance of this information and invited the Applicant to comment by 4 July 2007.
On 3 July 2007, the Applicant responded to the Tribunal's letter and provided further documents in support of his application.
On 9 July 2007, the Applicant attended a hearing before the Tribunal at which he gave evidence and presented arguments. The Tribunal also received oral evidence from a witness nominated by the Applicant.
On 23 July 2007, the Tribunal received a further submission from the Applicant in support of the Applicant's claims. The Tribunal also noted independent country information in its decision to which it had regard.
The Tribunal noted that the Applicant was represented in relation to the review by his registered migration agent. The Tribunal noted the written claims by the Applicant and noted various exchanges it had with the Applicant about his claims and concerns that the Tribunal had raised with the Applicant about various aspects of his evidence.
In particular the Tribunal noted its discussion with the Applicant about his knowledge of Christianity. The Tribunal noted that it put to the Applicant that he seemed to have a very basic knowledge of Christianity which was incompatible with his claim that he had been involved in religion since 2003. The Tribunal noted the Applicant's response.
The Tribunal found that there were extensive and significant inconsistencies between the Applicant's oral evidence and his written evidence. The Tribunal found the Applicant not to be a credible witness and found him to be evasive in his answers and that his oral evidence changed with respect to several claims.
The Tribunal found that the Applicant displayed minimal knowledge about Christianity. The Tribunal found that while the Applicant did have some knowledge about Christianity the Tribunal considered that such knowledge was inconsistent with the level of knowledge the Applicant may be expected to have if he had been attending a registered church regularly for about a year and had been involved in an unregistered church for a number of years.
The Tribunal rejected the Applicant's claims of his experiences in China, in particular that the Applicant had been involved in the Christian church since 2003, that he had attended the church regularly since that time. The Tribunal rejected the Applicant's claims of having been involved in spreading the Gospels in the PRC or that he had been involved in the publication or distribution of pamphlets for the unregistered church in the PRC, resulting in his detention and mistreatment.
The Tribunal was not satisfied that the Applicant had been persecuted in the PRC by reason of his religion or real or implied political opinion arising from his claimed membership and association with an unregistered church in China.
The Tribunal noted the evidence provided by the Applicant in support of his claims being a statement by a number of people in the PRC and noted the difficulties he had had with such evidence, ultimately finding that the statement was of little weight.
The Tribunal also considered a claim by the Applicant that he was born to a counter-revolutionary family that disliked communist policies. However, the Tribunal noted that the Applicant had not made any claims that he feared persecution arising from such circumstances. In any event, the Tribunal had regard to independent country information relating to the treatment of persons who had been affected by the cultural revolution and found that such people are no longer of any interest to the authorities.
The Tribunal accepted that the Applicant had participated in the activities of the Hillsong Church after his arrival in Australia and accepted the evidence of the Applicant and members of the Hillsong Church and photographs in support of that claim. However, having regard to the Tribunal's findings about the Applicant's religious involvement in the PRC and its adverse credit findings, the Tribunal was not satisfied that the Applicant engaged in activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee. In the circumstances, the Tribunal noted that it was bound to disregard such conduct in determining whether the Applicant has a well-founded fear of persecution pursuant to s.91R(3) of the Act.
Accordingly, the Tribunal found that there was not a real chance that the Applicant would face persecution by reason of any imputed counter‑revolutionary associations or tendencies; religion; or, imputed political opinion
The Tribunal affirmed the decision under review.
The Applicant appeared unrepresented before this Court but with the assistance of an interpreter. The Applicant confirmed that he relied upon the grounds identified by him in the application filed on 16 August 2007. Those grounds are 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.”
Each ground was interpreted for the Applicant's assistance and he was invited to make submissions in support of either of the grounds or in support of his application generally.

Ground 1

The ground was unsupported by any particulars and on its face discloses no error capable of review by this Court.
The Applicant was asked by the Court what was the evidence which he claimed in ground 1 was ignored by the Tribunal. The Applicant identified the documents contained in the Court book from pp.72 to 88 and 92 to 93. Those documents would appear to be the documents provided by the Applicant in his response dated 3 July 2007 to the Tribunal's s.424A letter dated 20 June 2007.
The Applicant told this Court that the Tribunal did not mention the documents or give him an opportunity to explain about the documents. The Applicant said that he had the impression that the Tribunal had made its decision before the hearing, that the hearing was an empty gesture and its outcome had been predetermined. The Applicant alleged that he was denied an opportunity to say what he wanted to say and was not offered an opportunity to give further explanation.
The Applicant filed no evidence in support of his application in this Court, despite having been directed on 11 October 2007 to do so. However, the First Respondent read the affidavit of Catherine Nichole Hooper affirmed 20 November 2007 which annexed a copy of a transcript of the Tribunal hearing.
A fair reading of the Tribunal decision does not suggest that there was any lack of opportunity for the applicant to explain his claims and supporting evidence. The Applicant’s supporting evidence was from his brothers and sisters in the PRC about his activities with the underground church. In the Findings and Reasons section of its decision the Tribunal explains why it gave the supporting evidence little weight. Relevantly the Tribunal stated:
“The applicant provided a statement signed by a number of people in China to certify that the applicant ‘often gathered at house church gathering’ with them. The Tribunal notes that the statement is written on plain paper, contains no evidence to verify the identity of people making the statement and it is unsigned, although it appears to contain fingerprints. The Tribunal is unable to accept this statement as probative evidence of the matters set out therein and gives this statement little weight.”
A fair reading of the Tribunal's decision makes clear that the Tribunal considered the Applicant's corroborative evidence. The Tribunal's finding that it gave little weight to the statement of the people in the PRC in support of the Applicant's claims of persecution in the PRC is a finding of fact that was open to the Tribunal on the evidence and material before it and for which it provided reasons.
In relation to the documents provided by the Applicant from members of the Hillsong Church in Australia the Tribunal accepted that the Applicant had participated in the activities of the Hillsong Church after his arrival in Australia. However, having not been satisfied that the Applicant’s participation in Australia was otherwise and for the purpose of strengthening his claim, the Tribunal was bound to disregard such conduct (s.91R(3) of the Act).
In the circumstances, the Applicant's contention that the Tribunal ignored his evidence is not made out.
In relation to the Applicant's allegation to this Court that the Tribunal did not give him any opportunity to say whatever he wished about his documents, a fair reading of the Tribunal's decision does not support such an allegation. The Tribunal's decision does not suggest that there was any request made by the Applicant to further explain matters that was denied by the Tribunal; nor does a perusal of the transcript suggest that there was any opportunity sought by the Applicant to explain his claims or documents that was denied by the Tribunal.
Indeed, the Court notes that at on p.34 of the transcript towards the conclusion of the hearing, the Tribunal member said, “is there anything else you want to tell me?” and the answer is recorded as “no”. This part of the transcript was read by the Court to the Applicant this afternoon. The Applicant agreed that the Tribunal asked that question and that he had said “no”. The Applicant told this Court that, at the time the Tribunal member asked the question, the Tribunal member had stood up and was ready to go.
However, the transcript discloses that there were further discussions between the Tribunal member and the Applicant about his claims after the conversation referred to above and prior to the Tribunal member leaving.
In any event, there cannot be any error on the part of the Tribunal going to its jurisdiction because it stood up to leave after it had asked the Applicant if there was anything else he wished to say and the applicant had said “no”.
There is nothing on the face of the Tribunal's decision nor the transcript to suggest that the Applicant was not offered an opportunity in accordance with the Act to give evidence and present arguments on his behalf; nor that the Tribunal had approached its decision other than with a mind open to persuasion.
As stated above in these Reasons, the findings of fact made by the Tribunal were open to it on the evidence and material before it. In reaching its conclusions the Tribunal applied the correct law to the facts as it found them to be.
In the circumstances, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. 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 proceeding before this Court is dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 18 February 2008