SZLPZ v Minister for Immigration
[2008] FMCA 314
•14 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 314 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal denied the applicant natural justice – whether the Refugee Review Tribunal was biased or failed to act in good faith – whether mistranslations of the Refugee Review Tribunal hearing had occurred. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 Abebe v Commonwealth of Australia (1999) 162 ALR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358; NAGG v Minister for Immigrationand Multicultural and Indigenous [2002] FCA 713 NAAV v Minister for Immigration and Multicultural and Indigenous (2002) 123 FCR 298 SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZLPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3511 of 2007 |
| Judgment of: | Emmett FM |
| Hearing dates: | 8 February & 4 March 2008 |
| Date of last submission: | 4 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the respondent: | Mr T. Reilly |
| Solicitors for the respondent: | Ms B. Anniwell, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3511 of 2007
| SZLPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 22 November 2006 and handed down on 14 December 2006.
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 18 March 2003 having departed legally from Beijing Airport on a passport issued in his own name and a student visa and subsequently being granted a temporary residence visa on 29 August 2005.
On 21 March 2006, the Department sent the Applicant a letter notifying him of their intention to cancel his Class UC 457 visa due to the cancellation of his sponsorship. On 25 August 2006, the Department sent the Applicant a letter cancelling his Class UC 457 visa.
On 9 June 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese government.
On 15 July 2006, 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”). The Delegate was not satisfied that any alleged fear of persecution by the Applicant was genuine or significant on the basis that the Applicant had applied for refugee status about one year after his arrival in Australia. It also noted that the Applicant wrote in support of his protection visa application that he had never been convicted of committing any offence in China and was not currently under investigation. In those circumstances, the Delegate found that the Applicant was not and never had been of any real adverse interest to the Chinese authorities.
On 21 August 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 22 November 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 November 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 16 August 2006, the Applicant wrote to the Tribunal sending further material in support of his application and expanding upon his claims.
On 7 September 2006, the Tribunal invited the Applicant to attend a hearing on 24 October 2006. The Applicant attended that hearing and gave oral evidence.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims. The Applicant claimed that he had had to return to China for three weeks on 4 June 2005 to finalise the custody arrangements of his son with his ex-wife and that he had no problem with immigration, Embassy staff or other Chinese authorities during this time. The Applicant claimed his agent had performed several tasks without his knowledge or consent. The Applicant claimed that he was a member of the Global Gospel Christian Church, a small organisation “with few members, uncertain funding, no publications and no recognition” and as such was more likely to be subject to persecution than an ‘ordinary’ Christian in China.
The Tribunal noted the material provided by the Applicant in support of his protection visa application and the further material provided to the Tribunal by letter dated 16 August 2006. The Tribunal then noted with particularity the oral evidence given by the Applicant to the Tribunal. The Tribunal raised with the Applicant matters of concern it had about his claims and noted the Applicant’s responses. The Tribunal also noted independent information to which it had regard.
The Tribunal noted that the Applicant did not claim to have converted to Christianity until September 2002 whilst in Kuala Lumpur having departed from China in 2001. The Tribunal noted that the Applicant made no claims that he was persecuted for reasons of his Christian faith or for any other reason prior to leaving China. The Tribunal noted that the Applicant did not claim that his family in China had been the subject of any adverse interest by authorities; nor was he in fear of the authorities when he returned to China in 2005 or when he approached the Chinese Embassy to renew his passport in March 2006.
The Tribunal noted that the Applicant asserted that he wished to disseminate the beliefs of his church if he was to return to China. However, the Tribunal was not satisfied that the publication of the type of material that the Applicant wished to disseminate would bring the Applicant to the adverse attention of the Chinese authorities or that, even if it was brought to the attention of the authorities, that the Applicant would suffer harm that amounted to persecution as a result.
The Tribunal noted that the Applicant claimed he feared persecution by the Chinese authorities because he would talk to people about his professed beliefs, however, noted that “despite repeated questioning he was unable to indicate who those people would be or how or in what context he would communicate those beliefs such that it would lead to his being persecuted by the Chinese authorities.”
The Tribunal specifically noted that the Applicant denied that he would become an evangelist, preacher, priest or pastor if he were to return to China.
The Tribunal found it was unable to obtain “any meaningful information” from the Applicant about the practices of his church. Nor, was the Applicant able to tell the Tribunal “what it was to practice his beliefs, either openly or otherwise, nor how it could lead to him being persecuted by the authorities.”
The Tribunal noted independent information about the Global Gospel Christian Church and that it was incorporated in February 2005.
The Tribunal found the Applicant “evasive under questioning” and was not satisfied that the Applicant had a genuine Christian belief.
The Tribunal found the Applicant was not a witness of truth. The Tribunal stated that it:
“was not satisfied that the applicant’s evidence established that he held a genuine belief in the pronouncements of the Global Gospel Christian Church. The Tribunal is not satisfied that the Global Gospel Christian Church is not a convenient vehicle established to assist people such as the applicant to make refugee claims in Australia.
As the Tribunal found that the applicant has no commitment to the Global Gospel Christian Church, it also finds that if he returns to China he will not discuss or otherwise promote his claimed beliefs.”
The Tribunal found that the Applicant’s activities in Australia were done to strengthen his claims for refugee status and found that he had no real commitment at all to the Global Gospel Christian Church or their teachings.
The Tribunal was not satisfied that the Applicant’s conduct was otherwise than for strengthening his claim to be a refugee and therefore his conduct in Australia must be disregarded pursuant to s.91R(3) of the Act.
The Tribunal found that, because the Applicant had no commitment to the Global Gospel Christian Church, the Applicant would not discuss or otherwise promote his claimed beliefs if he were to return to China. The Tribunal found that the Applicant was not a person who is or would be of adverse interest to the Chinese authorities and did not accept that the Applicant faces a real chance of being persecuted now or in the reasonably foreseeable future if he were to return to China for any Convention-related reason.
Having found that the Applicant had not suffered past persecution and that there was no real chance he would suffer persecution now or in the reasonably foreseeable future, the Tribunal was not satisfied on the evidence before it that the Applicant has a well-founded fear of persecution within the meaning of the Convention and thereby affirmed the decision under review.
The proceeding before this Court
The Applicant appeared unrepresented before this Court although had the assistance of an interpreter.
I have dealt the Applicant’s grounds below taken from:
a)
the application dated 26 November 2007 and filed in Court on
29 November 2007;
b)the additional ground filed 8 February 2008; and
c)a document filed on 21 February 2008, which I have taken to be an amended application contain additional grounds.
The grounds identified by the Applicant in his initiating application filed 12 November 2007 are difficult to understand. In any event, any complaint they make is addressed in the grounds referred to above.
Ground 1 – “The misunderstanding and the misuse of the information of my subclass 457 working visa, and of my return to China on 4 June 2005, and of the time and the time order against my credibility were unfair to me.”
Ground 1 of the application filed on 12 November 2007 complains about misuse by the Tribunal of information in the Applicant’s
sub-class 457 working visa and his return to China on 4 June 2005 in making adverse credibility findings against the Applicant.
However, such a complaint is misconceived. A fair reading of the Tribunal’s decision makes clear that the Tribunal noted that the Applicant’s visa was cancelled. However, such cancellation was not relied upon in any way by the Tribunal in affirming the decision under review.
In relation to the Applicant’s reference to an adverse finding of credibility by reason of his return to China on 4 June 2005, such a complaint is misconceived. In the Claims and Evidence section of his reasons, the Tribunal noted that part of the information in the Department’s file was that “the applicant travelled to China on 4 June 2005 to discuss the custody of his son with his ex-wife and returned to Australia on 25 June 2005.” However, the Tribunal did note that the Applicant had not claimed that his family in China was the subject of any adverse or other interest by authorities, nor was he in fear of the authorities when he returned to China in 2005.
Even if this information formed part of the Tribunal’s reason for affirming the decision under review, it was information given by the Applicant to the Tribunal for the purposes of its review. Moreover, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it, including reference to this information, in considering whether or not the Applicant had a well-founded fear of persecution for a Convention-related reason.
Accordingly, this ground is rejected.
Ground 2 – “My faithful Christian believe has been denied by the RRT member based on her own view lost the justice.”
Ground 2 of the application filed on 12 November 2007 appears to allege bias on the part of the Tribunal member. The allegation was unsupported by particulars and no evidence was filed by or on behalf of the Applicant to support such an allegation.
Such an allegation is a serious allegation that requires evidence (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). Rarely will bias on the part of the Tribunal be apparent from the written reasons only (SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115]).
A fair reading of the Tribunal’s decision makes clear that the Tribunal invited the Applicant to come to a hearing to give evidence and present arguments; accurately distilled the Applicant’s claims; considered the Applicant’s evidence both written and oral, including material given to the Tribunal by the Applicant in support of his review; explored the Applicant’s claims with him at the hearing; identified for the Applicant matters of concern about his claims and noted the Applicant’s responses; identified country information to which it had regard; made findings of fact that were open to it on the evidence and material before it and for which it provided reasons; applied the correct law to the facts as it found them to be in reaching its conclusions.
In the circumstances, a fair reading of the Tribunal’s decision makes clear that the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, ground 2 is rejected.
Ground 3 – “Preaching the information of the Last Days, Repentance and the Kingdom of God which I have been doing since last July will be absolutely forbidden in China. Without a proper investigation and research and inquire, the conclusion that I have no well-founded fears was unfair to me.”
Ground 3 of the application filed on 12 November 2007 is no more than a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
As stated above in these Reasons at paragraph 40, the Tribunal made findings that were open to it on the evidence and material before it and for which it provided reasons.
In reaching its conclusion that the Applicant did not have a well-founded fear of persecution for a Convention related reason, the Tribunal applied the correct law to the facts as it found them to be.
Accordingly, ground 3 is rejected.
Ground 4 – “Some misunderstanding of the RRT member caused by some improper translations led to the loss of justice.”
Ground 4 of the application filed on 12 November 2007 alleges “improper translations”. On 29 November 2007 the Applicant was directed to file and serve all evidence in support of his application, including any transcript of the Tribunal hearing by 18 January 2008. On 8 February 2008, the Applicant was given a further opportunity to have a transcript of the hearing prepared, together with an affidavit identifying the mistranslations alleged. No further document has been filed by the Applicant in accordance with those directions.
Accordingly, there is no evidence before this Court to support the Applicant’s allegation of mistranslation.
Accordingly, ground 4 is rejected.
Additional ground filed 8 February 2008 – “The RRT failed in its duty to afford me the hearing required under the Act”
The particular in support of this ground relates to the alleged “interpretation errors which led the Tribunal into error”.
The added ground filed on 8 February 2008 referred to the same as ground 4 above.
The Applicant sought to rely on a letter from a translator which did not contain evidence in admissible form. The document was objected to by the First Respondent and rejected by the Court on the basis that it contained merely the opinion of the translator unsupported by a translation of what was said at the hearing and a translation of what, in the opinion of the translator, was an accurate translation. Further, the translator had appeared as a witness on behalf of the Applicant at the Tribunal hearing. It was because this evidence was rejected that the hearing was adjourned and the Applicant was given a further opportunity to obtain evidence of his allegation of mistranslation in admissible form. The direction made on 8 February 2008 was as follows:
“The Applicant is directed to file with the Court and serve on the First Respondent …. evidence in support of any allegation of mistranslation by way of an affidavit from an accredited interpreter setting out in full, first, what was said in English at the Refugee Review Tribunal hearing on 24 October 2006 and, secondly, what the translator says was the correct translation, by 22 February 2008.”
However, again no evidence was filed in accordance with this direction, or at all in support of such an allegation. Such allegation must therefore fail.
Amended application
In relation to the amended application, filed on 21 February 2008, the Applicant alleged that the Tribunal did not act in good faith in making its decision. Again such an allegation is a serious allegation. Such an allegation lack of good faith must be distinctly made and clearly proved (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507;).
Such an allegation is largely dealt with above in these Reasons at Ground 2.
A fair reading of the Tribunal’s reasons do not disclose a lack of any honest or genuine attempt by the Tribunal to make a decision, including the conduct of its review (NAGG v Minister for Immigrationand Multicultural and Indigenous [2002] FCA 713 at [24]; NAAV v Minister for Immigration and Multicultural and Indigenous (2002) 123 FCR 298 at [107]-[108]; SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19]). See these Reasons above in relation to ground 2.
Accordingly such an allegation is rejected.
The second ground referred to in the amended application filed on
21 February 2008is a complaint that I do not understand. It states as follows:
“The RRT decision was not reasonably capable of reference to the decision making power given to the RRT member.”
The Applicant was invited to make submissions in support of the various grounds of his application and in support of his application generally. The Applicant made no meaningful submission in support of any of the grounds or his application generally. The Applicant reiterated his disagreement with the Tribunal’s adverse credibility findings. However, as stated above in these Reasons, such findings were open to the Tribunal on the evidence and material before it and for which it provided reasons. Credibility findings are a matter for the Tribunal “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
As stated above in these Reasons, a fair reading of the Tribunal’s decision makes it clear that the Tribunal complied with its statutory obligations in making its decision, including the conduct of its review.
Accordingly, the complaints made in the amended application are not made out.
Conclusion
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 sixty-six (66) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 14 March 2008
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