SZLIP v Minister for Immigration
[2009] FMCA 675
•10 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIP v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 675 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.48B, 91R, 417, 424, 424A |
| Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189 SZJGV and Others v Minister for Immigration and Citizenship and Another (2008) 170 FCR 515 SZNDT & Ors v Minister for Immigration & Anor [2009] FMCA 482 |
| Applicant: | SZLIP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2757 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr D Godwin |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2757 of 2008
| SZLIP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal signed on 23 September 2008 and sent to the applicant on 2 October 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in April 2000 on a Korean passport. He applied to the Department of Immigration for a protection visa on the basis that he was a Korean and claimed generally to fear persecution by the government of South Korea due to religious and political beliefs. The application was refused and the applicant sought review by the Tribunal. In his first application to the Tribunal the applicant did not provide any further written elaboration of his claims.
The first Tribunal wrote to the application pursuant to s.424 of the Migration Act 1958 (Cth), seeking further information and a response by 10 November 2000. A copy of the letter was returned to the Tribunal on 22 November 2000 with a handwritten notation that the applicant wished to present his claims at a hearing. The applicant was advised that the Tribunal had received the facsimile but the decision had been signed on 16 November 2000 and the Tribunal no longer had power to consider his case. The decision was handed down on 7 December 2000.
On 20 August 2001 a letter was sent to the Minister seeking the exercise of his powers under s.417 of the Migration Act. This letter related to the applicant in the name and identity that he used in connection with the protection visa application. It asked the Minister to exercise his discretion under both s.417 and s.48B on the basis of the applicant’s claims in relation to the situation in South Korea (although I note that the letter also suggested that there would be real chance that the applicant would be sentenced to imprisonment if he returned to Indonesia (sic)). On the same day a bridging visa application in that name was sought (and subsequently granted).
On 8 November 2006, after he was taken into immigration detention, the applicant sought to lodge a fresh application for a protection visa in a Chinese name on the basis that he was an underground Christian from China. Initially he provided no details of his claims. On 25 January 2007 the Department requested further details in the context of responding to a request that the Minister waive s.48B of the Migration Act to allow the applicant to reapply for a protection visa. In response he made written claims that his father was an underground Christian in China who had been arrested and detained, that he had joined the church and been involved in activities and that he had escaped a police raid and gone into hiding. He also claimed that he had breached the Chinese one child policy and had been fined. He claimed that after he arrived in Australia he heard they could pay migration agents to apply for a protection visa. He stated:
I found a migration agent through Chinese newspaper and paid $1000 agent fee to apply for a protection visa. At that time, I did not disclose my true identity because I was afraid to be sent back to China by the department of immigration. The agent then suggested that I use the name in the Korean passport. All of the application documents were prepared by my agent and I knew nothing about what he put in my application. When I was located by the department of immigration at home on 29/09/2006, I became aware that my application of protection visa has been finished.
The applicant also claimed that he had been in Australia for six and a half years and that since he arrived he had spent “almost every Sunday at a Chinese church in Padstow with friends.”
By letter of 23 February 2007 the applicant was informed that his protection visa application was barred by s.48B of the Act. The applicant then sought judicial review of the first Tribunal decision. On 22 May 2008 Rares J made consent orders on appeal from the Federal Magistrates Court, issuing writs in the nature of certiorari and mandamus directed to the Tribunal on the basis of a concession by the Minister that the Tribunal’s decision was affected by jurisdictional error in that it had refused to consider the applicant’s request for a hearing due to an incorrect assumption that it was functus officio having signed the decision, but not yet handed it down. The matter was remitted to the Tribunal for re-consideration. It is that re-consideration that is the subject of these proceedings.
On 12 August 2008 the applicant’s new adviser made a written submission to the Tribunal in relation to the applicant’s claims. The submission stated that he arrived in Australia using a false South Korean passport, but that he had left the Peoples Republic of China because he was persecuted as a member of a named underground, unregistered Christian house church. He claimed that his father had been arrested in 1997 during a church gathering, badly tortured, charged, sentenced and that he had served two years imprisonment. The applicant claimed that while his father was detained he and others continued holding church services but that during a gathering in July 1999 the PSB arrived. The applicant managed to escape although others were arrested. He claimed that a “Summons Notice” was issued on 27 July 1999 asking him to go to the local PSB. He claimed he remained in hiding until he left China.
The adviser reiterated the applicant’s claims that when he arrived in Australia he did not know about migration proceedings and did not speak English and went to see a migration agent he found through an advertisement in a Chinese newspaper. The letter claimed that he “explained the problems he was facing in the PRC” and that the migration agent asked him to sign blank forms and pay $1,000 and told him she would apply for a protection visa and that he had permission to work. It stated that the applicant claimed that he had been contacted by the agent twice, the last time being when he was requested to collect his tax file number, that he started working and because he was allowed to do so and had applied for protection he assumed he would not be sent back to the PRC. He claimed he did not know of his illegal status until he was detained in September 2006 and that it was when he was detained that he realised “the Migration Agent had acted wrongly”.
The applicant also claimed that in November 2006 his brother had been detained and questioned by the local PSB when he tried to obtain an identity document for the applicant so he could obtain a passport, that the brother had had a heart attack during the interrogation and had died the next day. He also claimed that the PSB had issued another “Summons Notice” on 10 September 2007.
The agent provided supporting documentation, including untranslated documents and references attesting to the applicant’s Christian activities at Villawood Detention Centre and thereafter. The untranslated documents were said by the Tribunal to include a Chinese baptism certificate, two summonses relating to the applicant as well as documents in relation to his father and brother.
The applicant attended a Tribunal hearing on 13 August 2008. The Tribunal recorded that in the course of the hearing the applicant stated that although he had been fined for violating the birth control laws he had paid the fine and had no further problems in that respect and that his fears were in relation to his religion. There was also discussion at the hearing of the applicant’s claims about his activities in China and also his claims in relation to his original protection visa application to which I will return.
On 15 August 2008 the Tribunal wrote to the applicant under s.424A of the Migration Act inviting him to comment on a number of matters, including the fact that his original application of 16 May 2000 was in a Korean name, that an application for review in that name was lodged in 19 July 2000, that on 20 August 2001 that identity was maintained in a letter to the Minister requesting he exercise his power under s.417 of the Act and that on 27 August 2001 the applicant was granted a bridging visa and was advised by the Department that he did not have permission to work. It was put to the applicant that this could lead the Tribunal to find that he continued to pursue applications in relation to the Korean identity after June 2000 and this could lead the Tribunal to find that he did not have a fear of persecution as claimed. It was also said to be inconsistent with his claim and oral evidence that he last made enquiries about that application in June 2000.
The Tribunal also put to the applicant inconsistencies between his written claims and those made by his adviser in relation to his father’s arrest and inconsistencies in his oral and written claims about what he did after the PSB came to the house church gathering in 1999.
The applicant responded to the Tribunal’s s.424A letter by letter from his adviser dated 29 August 2008, explaining inaccuracies in dates on the basis that he did not write the letter in which inaccurate dates appeared and confirming his claim that the first migration agent had told him to lodge his initial application in the Korean name and that he had last spoken to that adviser in June 2000 and had not been informed of the status of his application.
The Tribunal concluded in essence that the applicant lacked credibility and that his claims should not be accepted. It set out in some detail inconsistencies and implausibilities in his claims, in particular concerning dates of arrest and periods of detention of his father and in relation to where the applicant went after he escaped the claimed PSB raid on the underground church gathering in 1999.
The Tribunal addressed the fact that the original protection visa application had been lodged in a Korean name and that the applicant had been represented. It set out the history of processing of that claim by the delegate and the Tribunal, the 2001 s.417 letter and also the fact that the applicant had been granted a bridging visa in August 2001 valid until December 2001 in the Korean name. The Tribunal considered the applicant’s claims that he had last spoken to that adviser in June 2000 and that he had believed the protection visa application was proceeding but made no further inquiries. However it found his evidence that he thought he was in the process of getting a protection visa for over six years was unpersuasive. The Tribunal did not accept that the claims provided to the Department in the Korean name were not known to the applicant or that the applicant was unaware that the application had been unsuccessful. It did not accept that the applicant was in fear of persecution in China, being of the view that had the applicant held such fear he would have lodged a protection visa application revealing his true identity as a Chinese national. It did not accept the applicant’s claim that he was unaware of the outcome of that protection visa application until he was detained in September 2006.
The Tribunal then considered the applicant’s claims about his activities in Australia, having already accepted that he attended religious activities soon after he was detained in September 2006 and that he had been attending a Chinese Christian church at Strathfield since his release from detention. The Tribunal referred to the fact that the applicant told it that after he arrived in Australia he attended a church at Padstow on four or five occasions and that once detained he started to attend gatherings at Villawood. However it found that, apart from the applicant’s own evidence, there was no evidence that the applicant attended any Christian activities from the time he arrived in Australia until he was detained in September 2006. The Tribunal was not satisfied that the applicant attended any Christian activities prior to his detention in September 2006. The Tribunal found it implausible that had the applicant been a devoted Christian as claimed he would not have attended a Christian church soon after his arrival in Australia on a regular basis. The Tribunal was not satisfied that the applicant was a practising Christian in China.
While the Tribunal was prepared to accept that the applicant attended Christian activities at Villawood and thereafter, given its findings that he was not a Christian in China, that he did not attend Christian activities in Australia prior to detention and its observations about his credibility, it was not satisfied that the applicant engaged in religious activities in Australia otherwise than for the purpose of strengthening his claims to be a refugee. The Tribunal disregarded such conduct in accordance with s.91R(3) of the Act.
The Tribunal also took into account the applicant’s claims about having had more than one child and having been fined, but accepted his evidence that he did not fear any persecution in relation to this issue should he return to China.
The Tribunal summarised its findings that it did not accept that the applicant practised Christianity in China, that he was perceived to be a practising underground Christian by the Chinese authorities, that his father was detained as claimed or that the Chinese authorities had an adverse interest in the applicant. Given that the Tribunal had found that the applicant was not a genuine Christian, it found he would not engage in religious activities if he returned to China.
The Tribunal stated that it had had regard to documents provided by the applicant, including a baptism certificate from China, summonses from 1999 and 2007 and documents relating to his father’s arrest, sentence and release. However it found, given the degree of credibility problems with the applicant’s evidence, that it could not give any weight to the statements relating to the applicant’s material claims set out in these documents. It stated that “[i]n light of the fundamental lack of credibility within the Applicant’s evidence, the Tribunal is not satisfied the statements relating to the Applicant’s material claims in these documents are true”. It was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this Court on 24 October 2008. There are two grounds in the application. The first is that the Tribunal “failed to take into account the unique situation [the applicant] was facing when [he] lodged [his] first protection visa application in 2000” and hence made a jurisdictional error. The particulars to this ground are that:
1. The Tribunal accepted that I purchased the Korean passport and used it to flee China but concluded that I did not have fear of persecution if returned to China because lodged (sic) my 2000 protection visa application with the Korean name rather than my true Chinese name.
2. I used the Korean name to apply for protection because my then migration agent advised that, since I entered Australia with a Korean passport and name, I had to apply for protection in that name. I did not have any legal knowledge so my only choice was to follow what the agent told me.
The Tribunal accepted that the applicant purchased a Korean passport in order to enter Australia and that he was in fact a Chinese national and not a Korean national as initially claimed. It did not accept that he used the passport “to flee China” in the manner contended in the particulars.
Insofar as this ground appears to assert that the Tribunal overlooked the applicant’s evidence that he lodged his first application in his Korean name because he was advised by his then migration agent that the application had to be in the same name as the passport, the Tribunal had regard to the applicant’s claims, but made an express finding that the applicant knew that his Korean application had been rejected and rejected his claim that he was unaware of the outcome of that application until he was detained by the Department in September 2006. It did not accept that the claims provided to the Department in the Korean name were not known to the applicant or that he was unaware that the application had been unsuccessful. It reasoned that if the applicant held fears of persecution in China he would have lodged a protection visa application which revealed his true identity as a Chinese national much sooner. Insofar as the applicant seeks to explain his behaviour he seeks merits review that is not available in this Court.
I will return to the manner in which this ground might be said to raise third party fraud when considering the second ground.
The second ground alleges that the “investigation conducted by the Tribunal in relation to [the applicant’s] Christian belief and [his] persecution background in China is incomplete and affected by bias.” The particulars are that:
1. The Tribunal failed to undertake a thorough investigation regarding my Christian belief and involvement with underground church activity in China. Its conclusion in relation to church activity in China is general and incomplete.
2. The Tribunal failed to take into account the obvious migration fraud and refused to conduct a careful investigation regarding my Christian activity.
Insofar as this is an assertion that the Tribunal was required to conduct further investigations, this is not a case in which there was any undertaking by the Tribunal to conduct further investigations. Nor is it one of those exceptional cases where it was necessary for the Tribunal to do so. The Tribunal is not under any general duty to inquire (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43]). Also, it is well established that it is for the applicant to establish his claims (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]). Given that it rejected the applicant’s claim to be a Christian in China it was not necessary for it to make specific findings about his claimed beliefs and involvement in church activities in China as contended.
In this case the lack of credibility of the applicant in key respects led the Tribunal to reject his claims. An assessment of credibility is a matter for the Tribunal and it has not been established that the findings by the Tribunal in this respect were not open to it for the reasons that it gave on the material before it.
It is also well established that it is a rare and exceptional case in which bias will be established from the Tribunal reasons alone (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). This is not such a case. The Tribunal account of the Tribunal hearing, the only evidence before the Court as to the Tribunal hearing, is not such as to establish either actual or apprehended bias. The fact that the Tribunal rejected the applicant’s claims is not such as to establish bias.
The second particular to this ground refers to migration agent fraud. Insofar as this is an assertion that the Tribunal refused to conduct a careful investigation, it is not made out on the material before the Court.
The applicant took issue with what he described as the “obvious migration fraud”. It appears that this is a reference to the applicant’s claims that he was asked to sign blank forms by his first migration agent and that subsequent applications in his Korean name were pursued without his knowledge. Such claims were considered by the Tribunal in its reasons for decision but, as set out above, the Tribunal did not accept the applicant’s evidence that the claims provided to the Department in the Korean name were not known to him or that he was unaware that the application had been unsuccessful. These conclusions do not establish bias.
I raised with counsel for the first respondent the possibility that the applicant was also seeking to claim that there had been third party fraud in the sense considered by the High Court in SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189. The hearing was adjourned in order to enable the parties to make submissions in relation to this issue.
Having considered all of the material before me I am not satisfied that the applicant has established jurisdictional error of the nature considered in SZFDE arising from any fraud on the part of his first migration agent.
As set out above, it is notable that when the applicant disclosed his Chinese identity in the statement responding to the Department letter of 25 January 2007, he spoke of finding a migration agent to apply for a protection visa, but added:
At that time, I did not disclose my true identity because I was afraid to be sent back to China by the department of immigration. The agent then suggested that I use the name in the Korean passport.
As submitted by counsel for the first respondent, there is in that statement an indication of conscious involvement and activity by the applicant in not disclosing or wishing to disclose his true identity.
When his new adviser first made submissions to the Tribunal in August 2008, a somewhat different version was given, omitting the statement that the applicant had chosen not to disclose his identity.
The Tribunal recorded in its account of the Tribunal hearing that it raised this issue with the applicant, that the applicant claimed he could not recall the agent’s name, that he had told her his real name but that she advised him to use the name on which he had entered Australia. He detailed meetings with the agent, including that he started working in about June 2000, after the second meeting, after he had his tax file number. The applicant claimed that this was the last time he spoke to the adviser and that he had not telephoned her thereafter but had just worked.
The Tribunal expressed doubts about the applicant’s suggestion that it could take over six years to process a protection visa application. It also raised with the applicant issues about the fact that claims were made to the Minister in 2001 in the Korean name. The applicant acknowledged that the letter of 20 August 2001 bore a signature that looked like the signature he had used for the Korean name, although he stated he knew nothing about the letter.
The s.424A letter also raised this issue and the suggestion that the applicant continued to pursue applications in relation to the Korean name after June 2000. The Tribunal rejected the applicant’s explanations in this respect, particularly his claim that he thought that he was in the process of getting a protection visa for a period of over six years and his evidence that the claims provided to the Department in the Korean name were not known to him or that he was unaware that the application had been unsuccessful.
In other words the Tribunal did not accept the applicant’s claims as to his lack of knowledge about the original claims in his Korean name or about the outcome of his application for a protection visa, finding that had he held a fear of persecution in China he would have lodged a protection visa application revealing his true identity as a Chinese national. Implicit in such findings is an acceptance by the Tribunal that the applicant must have been aware of what had happened in relation to the processing of his application in the Korean name through the Department and the Tribunal.
There are a number of reasons why the circumstances in this case are not such as to establish fraud in the sense considered in SZFDE. In SZFDE the High Court found that the appellant had not colluded in the fraud practised on the Tribunal and did not learn of the fraud at that time, but complained of it in a subsequent proceeding. It was in those circumstances that the High Court found the inference was open that the agent in that case had acted for self-protection in the manner in which he advised an applicant not to attend a Tribunal hearing, lest there be revealed at such a hearing his apparently unlawful conduct in charging fees for giving immigration assistance while not a registered migration agent. The High Court found (at [49]) that the fraud of the adviser had stultified the operation of the legislative scheme in the Migration Act in relation to the Tribunal affording natural justice, in particular pursuant to the obligation to invite an applicant to a hearing.
In SZLHP v Minister for Immigration and Citizenship and Another (2008) 172 FCR 170 the Full Court of the Federal Court considered a situation in which an appellant, a citizen of the Peoples Republic of China, had arrived in Australia on a false Indonesian passport and applied for a protection visa on the basis that he was an Indonesian. He attributed this to the advice of his agent. He also claimed that he had been advised not to attend the Tribunal hearing because he did not speak Indonesian. Some eight years after the Tribunal decision he sought judicial review on the basis that the Tribunal decision was affected by fraud. In that case there was the additional complication of the applicant not attending a Tribunal hearing, but what is of importance is that their Honours referred to the fact that in SZFDE (at [28]) the High Court had drawn attention to the relevance of the fact that the appellant had not colluded in the fraud practiced on the review body (see Branson J in SZLHP (at [13]).
In contrast, in SZLHP the Court was of the view that the appellant had colluded in the fraud practiced on the Tribunal, having knowingly signed a protection visa application made in a false name, falsely asserting that he was a citizen of Indonesia. Branson J found “nothing in the evidence provides any basis for an inference that the appellant was not aware that his conduct rendered him complicit in an attempt to deceive whatever Australian authority was responsible for dealing with applications for protection visas. Indeed, it is clear that he was well aware that he was applying for a protection visa in a false name and on a false basis” (at [15]). Her Honour found that the inference was irresistible in the circumstances of that case that the appellant was aware that his conduct rendered him complicit in an attempt to deceive the Tribunal (also see Lindgren J at [27] and Graham J at [87] and [93]).
Similarly in this case, on his own account, the applicant was aware that he was applying for a protection visa in a false name and on a false basis and, according to the Tribunal, that identity was maintained at least through 2001 when there was an application under s.417. These circumstances are such as to warrant an inference that the applicant’s conduct rendered him complicit in an attempt to deceive the Australian authority responsible for dealing with applications for protection visas, including in this case the Tribunal. To the same effect is SZHVJ v Minister for Immigration & Anor [2009] FMCA 320 at [32] in which Scarlett FM pointed out that even if the applicant in that case were to be able to prove fraud by the purported migration agent, the Court would be likely to find that he was a knowing, independent and voluntary co-perpetrator of the fraud on the Tribunal and relief would be refused.
Moreover, the fact that the applicant attended the Tribunal hearing in this case is another distinction from the circumstances of SZFDE. The applicant was not denied his right to a hearing and as such there was no “stultifying” of the Tribunal’s obligations to accord procedural fairness under Div.4 of Pt.7 of the Act. Similarly in SZEEU v Minister for Immigration and Citizenship [2008] FCA 269 at [42] Lander J considered an allegation of third party fraud where fresh claims had been raised when a matter was remitted for reconsideration. The appellant contended that he had not raised those claims earlier because a migration agent told him not to do so. Lander J pointed out that there was no evidence that as a result of anything done by the appellant’s migration agent the Tribunal failed to comply with the procedures in Div.4 of Pt.7 of the Migration Act. The same may be said in this case.
Finally, and of significance, the Tribunal in this case was aware of the applicant’s complaint about his migration agent and hence was in quite a different situation from the Tribunal in SZFDE, which was, as Lander J described it in SZEEU (at [40]), “the unwitting victim of the agent’s fraud”. Here, as in SZEEU, the Tribunal considered the applicant’s complaints about the migration agent but rejected them. In particular the Tribunal did not accept the applicant’s evidence that the claims as provided to the Department in the Korean name were not known to him or that he was unaware that the application had been unsuccessful.
In all of the circumstances third party fraud in the manner considered in SZFDE it is not made out.
The other issue that arose on the material before the Court, addressed in oral submissions by counsel for the first respondent, was the possible application of s.91R(3) of the Migration Act. That section provides that in determining whether a person has a well-founded fear of persecution for a Convention reason, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purposes of strengthening his or her claim to be a refugee.
In this case the Tribunal accepted that the applicant had attended Christian activities at Villawood and a Christian church since that time. Having made findings that such conduct occurred the Tribunal addressed s.91R(3) and for reasons which it gave, as set out above, concluded that it should disregard such conduct in accordance with s.91R(3). It did so and there is no evidence to suggest that it thereafter took into account such conduct.
It is however necessary to consider whether the Tribunal fell into error in the manner in which it treated events in Australia prior to the applicant’s detention in September 2006.
The Tribunal recorded that the applicant told it that after he arrived in Australia he had attended a church at Padstow on four or five occasions. It found that apart from his own evidence there was no evidence that he attended any Christian activities from the time he arrived in Australia until detained in September 2006. It was not satisfied that the applicant attended any Christian activities prior to his detention in September 2006.
As contended for by counsel for the first respondent, I am satisfied that in proceeding in this way and in making that finding the Tribunal was, consistent with the approach of the Full Court of the Federal Court in SZJGV and Others v Minister for Immigration and Citizenship and Another (2008) 170 FCR 515, making a finding as to whether or not conduct had occurred. It is only if the Tribunal finds that conduct has occurred that the issue then arises of whether or not that is to be (and has been) disregarded under s.91R(3).
While the Tribunal went on to find it implausible that had the applicant been a devoted Christian as claimed he would not have attended a Christian church soon after his arrival in Australia on a regular basis, reading the Tribunal decision fairly and as a whole, despite the similarity that this finding (considered in isolation) bears to the finding considered in SZJGV (in the case of SZKBK), the difference in this case is that the finding followed immediately after the Tribunal made a finding that there was no conduct consisting of attending any Christian activities in Australia prior to the applicant’s detention in September 2006. As there was no such conduct, there was then no conduct to be disregarded under s.91R(3) of the Act. In that context the Tribunal’s reference to “on a regular basis” cannot be seen as involving an acceptance of the applicant’s claims about infrequent attendance at a church at Padstow. Rather, the Tribunal was not satisfied that the applicant attended any Christian activities prior to his detention.
In addition, a number of decisions after SZJGV have considered the operation of s.91R(3) and suggested that s.91R(3) is only in enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution (see SZIIF v Minister for Immigration & Anor [2009] FMCA 370 and SZNDT & Ors v Minister for Immigration & Anor [2009] FMCA 482 referring to the decision of Jacobson J in SZHFEv Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2006] FCA 648, which preceded SZJGV and also the subsequent decision in SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286 as well as SZLDV v Minister for Immigration & Citizenship [2008] FCA 121). In this case, while the applicant sought to rely on attendance at a church at Padstow before his detention, that claimed conduct was found not to have occurred. What was taken into account was the absence of any conduct in Australia involving Christian activities prior to the detention. The absence of Christian activity before detention was not something that the applicant sought to rely on in Australia to support a claim to have a well-founded fear of persecution. That provides an additional indication that the circumstances are not such as to give rise to or establish a contravention of s.91R(3) of the Migration Act.
The applicant also claimed that the Tribunal overlooked all his evidence and did not take it into consideration and that this was unfair. In particular he claimed that the Tribunal did not look at all his documents and did not believe him. It t has not been established on the material before the Court that the Tribunal failed to consider any integers of the applicant’s claims in a manner constituting jurisdictional error. On the contrary, it considered the claims by the applicant. The fact that the Tribunal did not believe the applicant does not establish jurisdictional error. Merits review is not available in this Court.
I asked the applicant what the documents were that he was concerned about. However he reiterated that the Tribunal did not believe him and therefore did not look at all of his documents. Insofar as this takes issue with the Tribunal findings in relation to the documents provided by the applicant to the Tribunal, it is apparent that this was a case in which the “well has been poisoned” in the sense considered in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49]. The Tribunal found that it could not give any weight to the statements relating to the applicant’s material claims set out in those documents given the degree of the credibility problems it had with the applicant’s evidence. The applicant’s general complaint in this respect does not establish jurisdictional error.
Finally, the applicant also suggested that he had further evidence and documents that could be sent from home. However he confirmed that such material was not before the Tribunal. The fact that there maybe further evidence that was not before the Tribunal does not establish jurisdictional error on the part of the Tribunal on the material before it at the time of its decision.
As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful. There is nothing in the circumstances of the present case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 23 July 2009
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