SZLGI v Minister for Immigration - [2008] FMCA 448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGI v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 448

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Act.

Migration Act 1958 (Cth), ss.91R(3); 424A; 424A(3)(a); 424A(3)(b); 424AA; 424A(1)

Abebe v The Commonwealth [1999] HCA 14
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZLGI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2715 of 2007

Judgment of:

Emmett FM

Hearing date:

8 April 2008

Date of last submission:

8 April 2008

Delivered at:

Sydney

Delivered on:

8 April 2008

REPRESENTATION

Applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondent:

Ms L. Clegg

Solicitors for the Respondent:

Ms M. Palmer, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2715 of 2007

SZLGI

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 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 August 2007 and handed down on 7 August 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 3 March 2007 having departed legally from Fuzhou International Airport on a passport issued in her own name and a visa issued on 3 June 2007.
On 16 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 3 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 Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 31 May 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 7 August 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant’s claims in support of her protection visa application and before the Tribunal and the Tribunal’s decision are accurately summarised in the written submissions of counsel for the First Respondent, Miss Clegg, as follows:
“Applicant’s claims
10. The applicant’s claims are set out in writing in her protection visa application.[1] Those claims were comprehensively summarised in the Tribunal’s decision.[2]
11. In short, the applicant claimed that in the course of her employment she was cheated by a businessman who only paid a small deposit on a large order of books to the value of RMB100,000. A person who she had known since 2004, Mr Zhong Hua Zhou, gave her ‘strong support and encouraged [her] to restart her business activities’. Mr Zhou introduced the applicant to some customers who treated her well and honestly. Later, in 2005 the applicant learnt that Mr Zhou was the member of a family Christian church in the Jingshan district of Shanghai. In May 2005 Mr Zhou arranged for the applicant to attend a religious gathering at his home. From then on she entered into a ‘new world’ where people treated her like a brother and sister and people were honest and kind. The family Christian church was not a recognised church in China. The applicant took the view that the official Patriotic Church was supervised by the Communist dictatorship and she strongly believed that there is ‘no genuine religious freedom in the official church’.
12. The applicant claimed that she was baptised on 18 September 2005. The applicant claimed that Mr Zhou’s shop - a liaison station for the family Christian church - was discovered by the PSB in February 2006. Because the applicant was suspected of having a special relationship with Mr Zhou, she was questioned by the police five or six times between February and March 2006. At that time the applicant also helped Mr Zhou to hide at the home of a Ms Nian, whom the applicant claimed was another Christian and a relative.
13. From May 2006 the applicant’s home became the new liaison station for the accepting and distribution of religious propaganda materials. From May to December 2006 the applicant organised to receive and distribute about 500 copies of the Bible, and 7000 - 8000 copies of religious propaganda materials.
14. In September 2006 the applicant claimed that she realised the activities she was involved with were dangerous, and she accordingly made preparations to obtain a passport in the event that she became a target of the PRC authorities. In January 2007 she obtained a visa to Australia.
15. The applicant decided to leave China after Ms Nian was arrested on 28 February 2007 by the PSB whilst distributing religious propaganda. The applicant claimed that she immediately left Shanghai, and stayed in her home town of Fujian for only a day. She left China on 2 March 2007.
16. A few days after the applicant left China three groups of police went to arrest her at the business in Shanghai, her home in Jingshan and her home town in Fujian. However, by that time the applicant claimed she had already arrived in Australia.
17. At the oral hearing the applicant gave further evidence in connection with the above claims.[3]
18. At the oral hearing the applicant also gave evidence about her religious activities in Australia. She claimed that she attended Church on Sundays in Padstow and that on Wednesdays she attended further ‘learning sessions’ at the Church. She claimed that she started attending the church in Padstow on 15 April 2007, which she confirmed was about the same time that she applied for her protection visa.[4]
The Tribunal’s decision
[1] CB23 - 27
[2] CB 78 - 80
[3] CB 82 - 89
[4] CB 87.8 – 88.6 but especially at 88.3.
19. The Tribunal:
a) found that the applicant was not a credible witness;[5]
b) observed that she appeared to have memorised her statement and when questioned about matters not included in her statement, her answers became vague;[6]
c) concluded that it rejected her broad factual claims;[7]
d) gave seven separate and well developed reasons for arriving at this conclusion;[8]
e) observed that the combination of these reasons caused it to find that the applicant had not been truthful in her claims;[9]
f) in relation to the applicant’s conduct in Australia, accepted that, on the basis of her oral evidence, that applicant had attended church in Padstow and religious study sessions. The Tribunal observed that her knowledge of Christianity was consistent with such conduct. However, the Tribunal was not satisfied that the applicant had engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee. Accordingly, the Tribunal disregarded the applicant’s involvement in religious activities in Australia as required by s 91R(3) of the Act;[10]
g) found that the applicant would not engage in Christian worship or in other Christian activities if she were returned to China now or in the reasonably foreseeable future;[11]
h) concluded that if the applicant returned to China there was no real chance that she would be persecuted or suffer serious harm because of her practice of Christianity or because of her claimed involvement with a Christian church or group.[12]”
[5] CB 90.2
[6] CB 90.3
[7] CB 90.3
[8] CB 90.3 – 91.4
[9] CB 91.6
[10] CB 92.2
[11] CB 92.3
[12] CB 92.4
On 4 September 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant has participated in the Panel Advice Scheme.
The Applicant confirmed that she relied on the grounds identified in her application filed on 4 September 2007 and on written submissions filed by her on 7 April 2008. Each of the grounds of the application were interpreted for the assistance of the Applicant. The Applicant was invited to say whatever she wished in support of the grounds and in support of her application general. The Applicant made submissions that appeared to be more in accordance with her written submissions, rather than her application. However, for the sake of completeness, I have dealt with both below.
Ground 1 of the application contended that the Tribunal had failed to comply with its obligations under s.424A(1) of the Act.
On 22 June2007, the Tribunal invited the Applicant to provide further information and also sent the Applicant a letter, pursuant to s.424A(1) of the Act, in respect of information that it considered may be part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment. Through her migration agent, the Applicant provided a statutory declaration in response to the Tribunal’s s.424A letter. In its decision, the Tribunal referred in detail to the Applicant’s response and also identified independent country information to which it had regard.
A fair reading of the Tribunal’s decision makes clear that the Tribunal found the Applicant not to be a credible witness for reasons of her “confused evidence” and “vague” and inconsistent answers to matters explored by the Tribunal with the Applicant at the hearing. The Tribunal identified with particularity the written and oral evidence of the Applicant and noted exchanges it had with the Applicant about that evidence. In particular, the Tribunal noted concerns that it put to the Applicant about her evidence and noted her responses.
Ultimately, the Tribunal rejected comprehensively the Applicant’s claims. In particular, the Tribunal rejected, inter alia, the Applicant’s claims of being involved in an unregistered church in China or being involved in receiving and distributing materials in China.
The Tribunal accepted that the Applicant had been attending a church in Australia. However, the Tribunal was not satisfied that the Applicant engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee. Therefore, the Tribunal disregarded the Applicant’s involvement in religious activities in Australia in accordance with s.91R(3) of the Act.
In the circumstances, the Tribunal found that, if the Applicant were to return to China now or in the reasonably foreseeable future, there is not a real chance that she would suffer harm for the reason of her practice of Christianity or due to her future involvement in an unregistered church or in the distribution of unauthorised religious materials.
Ground 1(a) appears to contend that the Tribunal’s finding that the Applicant’s “unhindered departure from China caused the Tribunal to find that she was of no interest to the authorities at the time of her departure”, should have been provided to her pursuant to s.424A of the Act.
However, this finding was foreshadowed by the Tribunal to the Applicant in its s.424A letter dated 22 June 2007.
Further, it was a finding based on evidence given to the Tribunal by the Applicant for the purposes of her review and is therefore excluded from the obligations of s.424A of the Act by reason of s.424A(3)(a) of the Act. In the circumstances. It was a finding that was open to the Tribunal on the evidence and material before it and for which it provided reasons.
Accordingly, there was no failure by the Tribunal with its obligation under s.424A(1) of the Act by reason of its regard to the manner in which the Applicant departed from China as part of its reason for finding that the Applicant was not a credible witness.
Ground 1(b) appears to contend that the Tribunal considered the information in relation to the Applicant’s involvement in religious activities in Australia as part of the reason for its adverse credibility findings and this information should have been provided to her pursuant to s.424A of the Act.
However, ground 1(b) is misconceived. The Tribunal was obliged to consider the Applicant’s conduct in Australia. Having done so, the Tribunal was not satisfied that the Applicant engaged in religious activities in Australia otherwise than for the purpose of strengthening her refugee claim and therefore specifically disregarded such conduct in accordance with s.91R(3) of the Act. Accordingly, s.424A of the Act has no application to such consideration.
In addition to the grounds in her application, the Applicant appeared to add further particulars to ground 1in written submissions filed by her on 7 April 2008.
In the Applicant’s written submissions filed on 7 April 2008, the Applicant appeared to depart from the particulars provided in support of ground 1 in the application filed on 4 September 2007.
Rather, in her written submissions, the Applicant identified the following information as enlivening the obligations of s.424A(1) of the Act:
“1) The information revealed that the Applicant had not been able to explain the difference between the Chinese official church and the unregistered church which she attended…
2) The information revealed that the Applicant was unable to state the differences between the written materials of the official church and the written materials of the unregistered church which she was distribution…”
However, this information is not information that enlivens the obligation of s.424A(1) of the Act. It is information given by the Applicant to the Tribunal for the purposes of her review and is therefore information excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
To the extent that the Applicant referred in her written submission to s.424AA of the Act, that section cannot be relevant. Section 424AA commenced on 29 June 2007 and applies only to applications for review by the Refugee Review Tribunal made on or after that date. The Applicant’s application for review to the Tribunal was received on 31 May 2007. In any event, for the reasons referred to above, s.424AA would have no application to this matter even if in force because the information identified by the Applicant, and referred to in paragraph 23 in these Reasons, is information specifically excluded from the obligations of s.424A(1) of the Act by s.424A(3)(a) of the Act.
Accordingly, ground 1 is not made out.
Grounds 2(a) and 2(b) of the application are more in the nature of a complaint by the Applicant with findings made by the Tribunal that the Applicant’s evidence was “confused” and untruthful. Such a complaint invites merits review which this Court cannot undertake (Abebe v The Commonwealth [1999] HCA 14 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Ground 2(c) of the application contended that the Tribunal had “never clearly indicated or ensure me to understand the issues arising from the review; and the Tribunal has never genuinely made me to understand its questions”. Such a contention was not supported by further particulars or evidence. The Applicant was invited to identify what she meant by those contentions. The Applicant made no meaningful submission in support, other than to cavil with the Tribunal’s rejection of her evidence which was based partly on her inability to tell the difference between written materials of the official church and written materials of the unregistered church which she was distributing. However, as stated above in these Reasons, those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.
Ground 2(d) appears to contend that the Tribunal’s finding that the Applicant’s departure from China was of no interest to the authorities was based on the Tribunal’s “assumption” rather than any evidence. However, the Tribunal referred to independent country information which it found suggested that people who are of interest to the authorities may have difficulty departing the country. As referred to above in these Reasons, the Tribunal’s finding that the Applicant’s departure from China was of no interest to the authorities was open to it on the evidence and material before it and for which it provided reasons.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the Applicant’s claims; referred in detail to her written and oral evidence; explored the Applicant’s evidence with her at a hearing; put to the Applicant concerns it had about her evidence, including in a s.424A letter; had regard to the Applicant’s responses; identified country information to which it had regard; made findings that were open to it on the evidence and material before it, including its adverse credibility findings. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to its findings of fact in reaching its conclusions.
In the circumstances, the Applicant’s contention in ground 2 that her review application was not “fairly and carefully assessed by the Tribunal” is not made out.
Accordingly, ground 2 is not made out.
Otherwise, the Tribunal complied with its obligations under 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-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 8 April 2008