SZLMA v Minister for Immigration
[2007] FMCA 2048
•5 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2048 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth) s.424A; 474 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Multicultural Affairs, Re: Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491; 1996 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [10]). Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 |
| Applicant: | SZLMA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3177 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 December 2007 |
| Date of last submission: | 5 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2007 |
REPRESENTATION
| Applicant appeared in person with a Fuqing interpreter |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms L. Buchanan, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3177 of 2007
| SZLMA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant claims to be entitled to a protection visa by reason of his fear of persecution by authorities in the People’s Republic of China (“China”) because of his membership of an underground Church.
The applicant arrived in Australia on 8 April 2007 on a fraudulent passport. On 30 April 2007, the applicant lodged an application for a protection visa with the Department of Immigration & Citizenship (“the Department”).
In his protection visa application, the applicant stated that he was a member of an underground church which held illegal services in Fuqing and Fuzhou. The applicant stated that the places where services were held included the home of his parents-in-law.
The applicant stated that in 1997 he married his wife in an underground Christian ceremony and that he underwent an underground baptism. The applicant stated that somebody told the police that he and his wife were Christians and that since 1997 he and his wife have lived in hiding, moving at least 50 times. The applicant stated that his church helped him obtain a passport five or six years ago in order to assist him to leave China.
The applicant stated that in 2002, at the request of the church, he secretly took bibles and publications to different places in Fuqing and Fuzhou under the guise of being a taxi driver. The applicant stated that he knew the passport upon which he entered Australia was false and stated that if he had used his own name he would have had problems entering Hong Kong.
On 24 May 2007 a delegate of the Department (“the Delegate”) refused the applicant 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. On 30 May 2007, the applicant lodged an application for review of the Delegate’s decision with the Refugee Review Tribunal and nominated an advisor in his review application.
On 13 June 2007 the Tribunal wrote to the applicant’s advisor informing the applicant that the Tribunal had considered the material before it. It was unable to make a favourable decision on that information alone. The letter went on to invite the applicant to come to a hearing and to send to the Tribunal any documents or written arguments that he wished the Tribunal to consider. On 19 July 2007 the applicant attended a hearing before the Tribunal with the assistance of his advisor.
The Tribunal identified with particularity the written claims made by the applicant and noted written submissions received by the applicant’s advisor on 17 July 2007. The Tribunal noted that at the hearing the applicant gave evidence in which he expanded upon his claims and also made new claims. The Tribunal identified with particularity exchanges that it had with the applicant during the hearing about various aspects of his claims and evidence; and noted concerns it put to the applicant about inconsistencies in the applicant’s evidence and noted the applicant’s responses.
Following the hearing, the Tribunal sent to the applicant a letter dated 24 July 2007, pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”), identifying with specificity its concerns about various aspects of the applicant’s evidence and informing the applicant that the concerns expressed by it may lead it to find that the applicant’s claims were fabricated, which would raise doubts about the veracity of the applicant’s claims and his credibility generally. The letter invited the applicant to respond. On 31 July 2007 the applicant’s advisor responded to the Tribunal’s letter in some detail.
The Tribunal also noted that further material was received by it on 13 August 2007 in the nature of documents provided in support of the applicant’s review application.
The applicant was invited to come to a further hearing before the Tribunal on 23 August 2007, which the applicant did. The Tribunal noted in its decision exchanges it had with the applicant at that hearing in relation to the documents provided to the Tribunal on 13 August 2007. The Tribunal raised concerns it had about the genuineness of those documents.
The Tribunal identified with particularity all the evidence provided by the applicant, both oral and written, in support of his application and identified the difficulties it had with the oral and written material. An accurate summary of the Tribunal’s findings is provided in the written submissions of the first respondent’s counsel at paragraph 4 and 5:
“4. The Tribunal found that the applicant was not a credible witness: he had made claims at the hearings that were not mentioned in his protection visa application; some of his evidence was internally inconsistent, and, when these matters were put to the applicant for comment, the Tribunal was not convinced by his responses. The Tribunal rejected the applicant’s claim to be a Christian and to have been involved in an underground church in China and found that he would not suffer any harm feared by him if he were to return there. It was not satisfied that the applicant had engaged in religious activities in Australia otherwise that for the purpose of strengthening his claim to be a refugee and so ignored those activities under s91R(3) of the Migration Act 1958.
5. For these reasons the Tribunal found that the applicant was not a person to whom Australia has protection obligations and so affirmed the delegate’s decision.”
Ultimately, the Tribunal rejected comprehensively all claims made by the applicant to have been a Christian in China; to have ever been a member of an underground church in China; that the applicant was ever baptised in China; that the applicant was ever involved in any activities in China relating to the underground church; or, that the applicant was ever of any adverse interest to the Chinese authorities. The Tribunal rejected all attenuated and expanded claims made by the applicant, including new claims made at the hearing.
Because of the comprehensive rejection by the Tribunal of the applicant’s claims and arising from the adverse credibility findings made by the Tribunal, the Tribunal was not satisfied that any of the documents provided in support of the applicant’s claims contained “truthful and or accurate information”. Accordingly, the Tribunal gave no weight to the documentary material provided by the applicant in support of his review application.
The Tribunal was not satisfied that the applicant had engaged in Christian activities in Australia other that for the purpose of strengthening his application for a protection visa and accordingly disregarded the applicant’s evidence about his conduct in Australia.
The Tribunal noted that it had considered the evidence of the applicant as a whole and affirmed the decision under review.
On 15 October 2007, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. The application identified the following two grounds:
“1. That the Second Respondent i.e. Refugee Review Tribunal refused to take into account that the Applicant was a real risk of persecution if returned to China, owing to belonging to a “underground church” furthermore the Tribunal failed to find that the evidence was not genuine.
2. I was not given any further opportunity to gather more sufficient or genuine evidence as the Tribunal stated in support of my protection visa application.”
The applicant appeared without representation at the hearing this morning, although had the assistance of a Fuqing interpreter. The grounds of the applicant’s application were interpreted for his assistance and he was invited to make submissions in support of either of the grounds and in support of his application generally.
The applicant made no meaningful submission, save to say that the Tribunal had not believed him.
Ground 1 of the application appears to be no more than a disagreement with the finding of the Tribunal that it was not satisfied that the applicant belonged to an underground church in China or to otherwise accept the applicant’s claims. Such an assertion invites merits review which this Court has no jurisdiction to undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491; 1996 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
Accordingly, ground one is not made out.
Ground 2 is not supported by any particulars or any evidence. I accept as accurate, and adopt as part of my reasons, the submission in paragraphs 8 to 11 of the written submissions of counsel for the first respondent.
“8. The applicant was given every reasonable opportunity to obtain and present evidence in support of his case. First, he was on notice from the delegate’s decision that the credibility of his claims would, at least to some extent, be in issue. The delegate commented that some of his claims were not consistent, that the fact that he had left China on his own passport and also the fact that he had not been questioned or arrested by police were not consistent with his claims: CB 76. Secondly, he was invited to a hearing to give oral evidence and was questioned extensively by the Tribunal at that hearing. Thirdly, after the hearing, the applicant was given an opportunity to comment in writing on the Tribunal’s concerns. Fourthly, not only did the applicant respond to this opportunity directly but he also took the opportunity to obtain documents from China. Finally, when those documents were sent to the Tribunal (untranslated), the Tribunal gave him an opportunity of explaining them and addressing any concerns it had in respect of them at a further hearing.
9. The applicant was well-represented throughout the review process by a migration agent who took every opportunity to advance the applicant’s interests and to ensure that he had a fair hearing. For example, prior to the first hearing, the applicant’s agent informed the Tribunal that there were some particular issues to be taken into account in respect of the applicant’s demeanour that arose from his hearing difficulty: CB 100. She also submitted extensive written submissions [CB 105] and made submissions at the hearings. The second ground should be rejected.
10. The Tribunal’s decision was based on its finding of credit. This, in turn, was based on a number of inconsistencies in the applicant’s evidence, inconsistencies both in the nature of omissions and additions, as well as logic. Those were proper bases for the Tribunal’s conclusion as to the applicant’s credit. Consequently, the court cannot interfere with either the Tribunal’s rejection of the applicant’s credit or of his entire claims. There is no error of law in the Tribunal’s decision.
11. As to procedure, both the requirements of the Migration Act as well as those of common law natural justice were met by the Tribunal in the manner set out in paragraph 8 above.”
The applicant did not identify to this Court the nature of any evidence that he would have wished to have provided to the Tribunal. A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered all evidence and material provided by the applicant or his advisor in support of this application and detailed concerns about the applicant’s evidence to the applicant’s advisor in its letter dated 24 July 2007.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant; had regard to all material provided in support, and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal 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 applied the correct law to those findings and made conclusions based on the findings made by it on the evidence and material before it.
A fair reading of the Tribunal’s decision makes clear that the Tribunal complied with the statutory requirements of the Act in the making of its decision, including the conduct of its review. The Tribunal is required to evaluate the evidence and material before it and make findings. The adverse credit findings made by the Tribunal were open to it on the evidence and material before it and are a matter entirely for the Tribunal. Credit findings are a matter “par excellence” for the Tribunal (Minister for Immigration and Multicultural Affairs, Re: Ex parte Durairajasingham (2000) 168 ALR 407).
In circumstances where the Tribunal comprehensively rejected all claims made by the applicant, it was open to the Tribunal to not give weight to any of the documentary material provided by the applicant in support of his claims (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49]). The Tribunal’s decision is not affected by jurisdictional error. Accordingly, pursuant to s.474 of the Act, it is a privative clause decision and this Court has no jurisdiction to interfere.
The proceeding, commenced by way of application filed on 15 October 2007, is dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 13 December 2007
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