SZLMP v Minister for Immigration
[2008] FMCA 1079
•8 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1079 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no breach of s.424A proved – information in question was not a reason to affirm the delegate’s decision – information in question was simply not a reason to set aside or vary the delegate’s decision – information may be given by the applicant to the Tribunal by reference to it in a document the applicant submits to the Tribunal – such information covered by s.424A(3)(b). |
| Migration Act 1958, s.424A |
| SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 Minister for Immigration & Citizenship v Chamnan You [2008] FCA 241 SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034 |
| Applicant: | SZLMP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3208 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 July 2008 |
| Date of Last Submission: | 21 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3208 of 2007
| SZLMP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was persecuted because he was of the Christian faith and because he has two children. He alleges that while in China he joined an underground church and that this subsequently led to him being detained. The applicant left China for Australia where, he alleges, he prays at home and has attended a church in Ashfield three times.
The applicant claims to fear persecution in China because of his religious beliefs and his membership of a particular social group.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 19 December 2005. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 9 of the Tribunal’s decision (Relevant Documents (“RD”) pages 94 – 99) and are relevantly summarised below.
Protection visa application
In his protection visa application form, the applicant claims that he is married with one daughter born on 19 May 1988 and lived at a particular address in Shenyang. In an accompanying statement, the applicant made the following claims:
a)he was a Jesus follower;
b)due to government pressure to abolish all underground churches, the applicant’s church was forced to keep moving all the time and they could never organise a stable place to do their weekly study or activities;
c)at the end of August 2004, police went to the applicant’s house, surrounded his home and used strong torches to cover all his windows. Everyone was searched and taken to the police station in a truck, but the applicant’s wife and children [sic] were left behind;
d)as one of the leaders of the underground church, he was detained for 14 days without proper food and drink. He was not questioned. When he was released, he was given a warning letter stating that he would be sentenced if he was detained again. The applicant was later informed that his family had paid a bribe to get him out and that three other members of the church remained in detention because they could not bribe the officers;
e)after his release the applicant suffered from memory loss and kept forgetting things easily;
f)as a sincere Jesus follower and group leader, the applicant could not stop “spreading the seeds” on behalf of Jesus. He understood that he might be caught again so he decided to go overseas where he would have religious freedom;
g)as the applicant had a police record, it was impossible for him to apply for a passport himself. One of his church members helped him get a business passport and a visa. The applicant arrived in Australia on a passport issued in his own name; and
h)the Liaoning Foreign Affairs Office advised the Department that the applicant and five other people had used forged documents and seals to obtain their travel documents to Australia. The Chinese consulate advised that as the group was suspected of forgery of official documents, they were reported to the Public Security Bureau (“PSB”) for possible investigation and prosecution.
Review application
In a statement signed on 24 January 2006 the applicant addressed some of the issues raised in the delegate’s decision. He stated:
a)he did not get a visa for his wife and child as they were not receiving as much police attention as he;
b)he had to leave them so that they would not be punished by the police because of him;
c)he did not attend the Departmental interview as he was afraid that there would be Chinese officers on site; and
d)in China he lived in a unit not a house.
Tribunal hearing
At the Tribunal hearing on 26 May 2006, the applicant made the following additional claims:
a)he was persecuted by Chinese authorities because he had two children;
b)when his wife was pregnant with their second child, the Communist party went to his home and asked his wife to have an abortion but as a Christian, he would not allow abortions;
c)in February 1996, the applicant, with his pregnant wife and his daughter, fled Shenyang and went to the Black Mountains. They walked for 20km in the cold;
d)the applicant’s son was born on 21 April 1997;
e)the applicant and his family returned to Shenyang in May 1998. When they returned, their house was seized by the Communist Party and they were expelled from their jobs;
f)they had to rent an apartment at a different address and pay a 10,000 Yuan fine as they had a second child;
g)the applicant’s son faced discrimination at school. They have to pay more and he cannot participate in all of the activities;
h)in relation to his Christianity, the applicant stated that his parents were Christian and he had grown up in a Christian household;
i)when pressed to provide details of his Christian knowledge and observances the applicant said he had suffered an injury to his head and his memory was not good after that;
j)the August 2004 arrest was at a building rented by the church followers. The applicant was not arrested at his house;
k)before his detention, the applicant did not attend the underground church services very often. Contrary to the claims in his protection visa application, he stated that he was not a church leader and acknowledged that his knowledge of Christianity was limited and superficial; and
l)since arriving in Australia the applicant has attended church three times and prays inside at home. He does not read the Bible and is waiting for a friend to give him a copy in Mandarin.
Section 424A response
In response to the Tribunal’s s.424A notice concerning inconsistencies in the applicant’s version of events, the applicant provided the following comments amongst others:
a)he had asked a student to help him fill in the protection visa application form and this student may have made a mistake in omitting the details of the applicant’s son; and
b)he was forced to undergo labour reform for six months for expressing his views on Christianity.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
Christianity claims
a)the Tribunal was not satisfied that the applicant was a genuine Christian, noting that:
i)the applicant displayed a very superficial and limited knowledge of Christianity and Christian religious practices which was inconsistent with his claims to have practised Christianity since childhood;
ii)his evidence about Christian beliefs and practice was vague and lacking in detail;
iii)the applicant displayed a very limited and vague understanding of the Bible;
iv)he was unable to describe how he worshipped at home or what he did at underground church meetings;
v)his own evidence was that he had a limited and superficial understanding of Christianity; and
vi)the applicant gave inconsistent evidence about his underground church activities in China;
b)the Tribunal did not accept that the applicant’s alleged memory loss would have affected his ability to answer general questions about how he practised Christianity, if he was in fact a genuine Christian worshipper, noting that:
i)there was no medical evidence to support the applicant’s claimed memory loss; and
ii)the Tribunal observed that the applicant was able to give his evidence in a coherent manner;
c)the Tribunal also did not accept that the inconsistencies in the applicant’s comments arose as a result of translation errors, noting that the applicant stated that he had had the statement read back to him in his own language and he had confirmed that the information contained in the statement was correct;
d)the Tribunal concluded that the applicant’s own evidence that he has had very limited involvement with Christian practice since he has arrived in Australia was inconsistent with his claim to have left China for Australia in order to practise his religion freely. Further, the Tribunal did not accept that the applicant has attended church in Australia, noting that:
i)the applicant had limited understanding of Christianity and Christian worship;
ii)there was no independent evidence to support his claim; and
iii)the applicant has not obtained a Bible in his own language although he has been in Australia for almost one year;
e)consequently, the Tribunal did not accept that:
i)the applicant gave a credible or truthful account;
ii)the applicant was detained, forced to undergo labour reform or threatened by the Chinese authorities because of his religion; and
iii)the applicant was warned by the Chinese authorities that he would be arrested for practising his religion if he returned to China;
One-child policy claims
f)the Tribunal did not accept the applicant’s claims to fear persecution on the basis that he has two children, noting that the applicant failed to mention these claims, or that he had a son, in his protection visa application or statement;
g)the Tribunal did not accept the applicant’s explanation that his friend had told him not to mention these claims or the existence of his son, finding that this was not credible;
h)the Tribunal did not accept the applicant’s explanation that the omission occurred due to translation errors, noting that:
i)translation errors did not adequately explain the omission of such key information about his son or his claims to fear persecution because he had two children; and
ii)this explanation was inconsistent with the applicant’s evidence that he had confirmed the correctness of the statement when it had been read back to him by his friend and his explanation that his friend had told him to leave out the information about his son;
i)the Tribunal found that the applicant’s evidence about these claims was not credible, noting that:
i)on the applicant’s evidence, his wife was pregnant with their second child for 14 months. The applicant was given several opportunities to clarify these dates at the hearing but did not do so; and
ii)the applicant’s claim to have lost his house was inconsistent with information in his protection visa application, which stated that he lived at the same house for ten years;
j)the fact that the applicant had given the Tribunal photographs alleged to depict his children did not in themselves demonstrate that the applicant has a son or that he was persecuted because he has two children; and
k)the Tribunal did not accept that:
i)the applicant has a second child;
ii)his wife was asked to have an abortion;
iii)the applicant and his family fled Shenyang for a year;
iv)they lost their jobs and house on their return;
v)they had to pay a fine; or
vi)that the applicant’s son faced discrimination at school;
Passport claims
l)as the Tribunal found that the applicant was not a practising Christian, a parent with two children or wanted by the authorities when he left, the Tribunal did not accept that the applicant would have been refused a passport by the Ministry of Public Security if he had applied for one, or be prevented from leaving China using it;
m)the Tribunal had regard to the possibility that the applicant would be persecuted by the authorities due to the allegation that he obtained a passport and visa on the basis of false documents but was not satisfied that any punishment that he may face on his return to China would be for a Convention reason, noting that:
i)there was no information available to the Tribunal to suggest that the applicant would be imputed with a political opinion adverse to the Chinese government, treated differently or punished more severely for a Convention reason because he had allegedly used false documents; and
ii)the applicant himself did not make any such claims.
Proceedings in this Court
The grounds of the amended application are pleaded as follows:
(1) The Second Respondent committed jurisdictional error by failing to comply with the mandatory provisions of s.424A(1)(a) of the Act, by failing to give the Applicant particulars of information that the Second Respondent considered would be the reason, or part of the reason, for affirming the decision under review.
(2)Further and in the alternative, the Second Respondent committed jurisdictional error by failing to comply with the mandatory provisions of s.424A(1)(b) of the Act, by failing to ensure that the applicant understood why the information provided was relevant to the review, and the consequences of it being relied on in affirming the decision that was under review.
Breach of s.424A(1)(a)
The information which the applicant alleged ought to have been supplied to him but was not, was particularised as follows:
(i)The Liaoning Foreign Affairs Office had advised the Department that the applicant and five other people had used forged documents and seals to obtain their travel documents to Australia;
(ii)The Chinese consulate had advised that the group (including the applicant) was suspected of forgery of official documents;
(iii)The Chinese consulate had advised that the group (including the applicant) had been reported to the Public Security Bureau (PSB) of Liaoning Province; and
(iv)The PSB had placed the case on file for possible investigation and prosecution.
It is important to keep in mind the provisions of s.424A as it stood at the relevant time:
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)…
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
It is implicit in s.424A(1)(a) that the information which would be the reason or part of the reason for the Tribunal affirming the delegate’s decision is information adverse to the applicant’s claim for a protection visa. Consequently, unless it can be said that the information which the applicant particularised and which is set out above can be so classified, it will not be “information” as understood by s.424A. As the High Court said when considering information contained in a statutory declaration submitted by an applicant in support of his application for a protection visa:
… the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. … it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. (SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1195–6 [17])
Far from being information which was adverse to the applicant’s pursuit of a protection visa, the information he particularises would, if anything, have been information supporting the grant of such a visa. In any event, rather than being a reason for the affirmation of the delegate’s decision, the material in question was simply evidence which was not accepted as identifying a basis upon which the Tribunal might differ in its conclusion from the delegate. It was not a reason for affirming the delegate’s decision; it was simply not a reason to set it aside or to vary it.
But in any event, the information fell within the exception found in s.424A(3)(b) because it was information which the applicant supplied to the Tribunal for the purposes of its review. Submitted with his application to the Tribunal for review, as revealed by the facsimile footers at RD 51–56, was a statement from the applicant which referred to the delegate’s decision and stated the applicant could not agree with the delegate on many points. One of those points concerned the applicant’s failure to attend an interview with the delegate. In this regard, the applicant said in his statement submitted with his application to the Tribunal for review:
Thirdly, the reason for me not going to the interview was that I was afraid there would be Chinese officers on site. In the case officer’s invitation letter, he expressed that he obtained some information about how I got my passport from Chinese officials. That stunned me a lot. I was so surprised to know that the case officer would have contacted Chinese government in order to get some information about me. I was scared to death. How dare I go to that interview? (RD 55)
Contrary to the applicant’s allegation, he was invited to an interview on 13 October 2005 by letter dated 4 October 2005 but it was in the delegate’s subsequent letter dated 7 November 2005 that information including the following was sent to him:
Information has been received that the Chinese authorities suspect that you used forged official documents and seals to obtain your travel documents for travel to Australia.
Your stated Past employment record in your Protection Visa application supports a finding that your Australian Class UC Temporary Business subclass 456 visa was obtained using a fraudulent document.
As the provision of false information/documentation in order to obtain travel documents is a common law offence (that is, an offence under China’s law of general application) any penalty administered by the Chinese authorities would be as a consequence of violating a general law and not in relation to one or more of the five reasons stated in Article 1A(2) of the Refugees Convention. (RD 35)
It is not necessary, in order for information before the Tribunal to be governed by s.424A(3)(b), that an applicant rely on that information which he or she has given to the Tribunal. Under the paragraph it is sufficient that the information is merely given by the applicant to the Tribunal for the purpose of the application: Minister for Immigration & Citizenship v Chamnan You [2008] FCA 241.
In SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034, Gyles J considered the position where an applicant had republished to the Tribunal information which he had previously given to the Minister’s Department. His Honour said:
The appellant’s application for review to the Tribunal incorporated a statement in the form of a statutory declaration by the appellant. That declaration consisted of a critical examination of the reasons given for the decision by the Delegate of the Minister to refuse the appellant’s application for a visa. In the course of that declaration the appellant referred several times to the claims that he had originally made and which were the subject of the Delegate’s decision. Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the Tribunal made reference. In my opinion, the appellant clearly republished the original claims to the Tribunal and relied upon them for the purposes of the review by the Tribunal. (at [5] – [6])
Although Gyles J was considering a situation where the applicant republished his own information previously supplied to the Minister’s department, his Honour’s reasoning is equally applicable to the circumstances of this case where the applicant made submissions on material relied upon by the delegate when arriving at the original decision. Moreover, although Gyles J spoke in terms of the applicant in SZDMJ relying on information he provided to the Tribunal, as has already been noted, in Chamnam You’s case it was held that to “give” information to the Tribunal requires no element of reliance. Here, although the applicant did not rely on the information contained in the delegate’s decision he did republish it by making specific reference to it.
For these reasons, I conclude that the information which the applicant has particularised in his amended application was, in fact, information which he, himself, gave to the Tribunal by referring to it in the statutory declaration submitted with his application for review. As such, it is information falling within s.424A(3)(b) and thus the Tribunal was not obliged to “give” back to him the particulars of that information pursuant to s.424A(1).
For these reasons, no breach of s.424A(1)(a) has been demonstrated.
Breach of s.424A(1)(b)
For the reasons given in relation to the first ground pleaded in the amended application, no jurisdictional error is demonstrated by the matter raised by the second ground pleaded in the amended application.
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 August 2008
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