SZLRT v Minister for Immigration
[2009] FMCA 692
•20 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 692 |
| MIGRATION – Review of RRT decision – where Tribunal contacted the applicants’ son’s school in Australia to request information in relation to his fees – where request made over the telephone – where no information previously provided by the school to the Tribunal – concern raised that the Tribunal’s contact with his son’s school may have brought his refugee application to the attention of the Chinese authorities. |
| Migration Act 1958 (Cth), ss.424, 424A, 424B, 48B |
| SZLPO v Minister for Immigration (2009) 255 ALR 407 |
| First Applicant: | SZLRT |
| Second Applicant: | SZLRU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2654 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 July 2009 |
| Date of Last Submission: | 20 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2009 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondents: | Mr G Kennett |
| Solicitors for the First Respondents: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2654 of 2008
| SZLRT |
First Applicant
| SZLRU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant and his wife are citizens of China. They arrived in Australia on 7 February 2007 and applied to the Department of Immigration & Citizenship for protection (Class XA) visas on 23 March 2007. On 11 April 2007 a delegate of the Minister refused to grant protection visas. The applicants applied for review of that decision from the Refugee Review Tribunal. The matter first went before the Tribunal in October 2007 and the Tribunal made a decision on the matter on 24 October 2007. That decision was remitted by the Federal Magistrates Court and a new Tribunal was constituted. The second Tribunal held a hearing at which the first applicant attended on 25 July 2008. On 4 August 2008 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”) raising with him certain matters which might be the reason or part of the reason for affirming the decision under review. The male applicant responded by way of a statutory declaration dated 18 August 2008. The male applicant was the person who completed Part B of the application form alleging that he had a well-founded fear of persecution for a Convention reason. His wife completed Part D of the form as a member of the family unit without independent claims. On 3 September 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 16 September.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations was his adherence to and worship at what he claimed to be an underground Roman Catholic Church. He told the Tribunal during the course of the hearing that his wife had also been a Catholic all her life. Although the Tribunal noted that she had not made her own claims, it did consider her position at [CB 465] [106]. The applicant told how he was a construction labourer who had been working with a friend, Mr Z, who was a pious Catholic. The applicant told how they were travelling to a construction site one day when the tractor on which they were riding fell five or six metres down into a river and everyone was hurt but not as badly hurt as they might have been. This gave rise to a feeling in the applicant that he had been saved by God and he joined Mr Zhang in Mr Zhang's Christian activities. He told how Mr Zhang organised a labouring group in which the applicant was a permanent and important member. The group would travel from place to place undertaking construction work and using their spare time to study the Bible and other Christian activities.
In June 2006 the construction team was working in Fuzhou City and was studying in the evening in a hut on the construction site when the hut was surrounded by members of the PSB and everyone was arrested. Mr Zhang and the applicant were singled out for interrogation and mistreatment. When the applicant was released after some days he was required to go back to the construction site during the day and return to his cell in the evening where he was mistreated physically and mentally and forced to do hard manual jobs and provided with poor food. In August 2006 the applicant developed a serious gastric perforation and was required to go into hospital. He was released by the police from his requirement to return to the cells, but he had to continue to report to them and to give information to them about the Christian church. He found it very difficult to continue his practices and so he made arrangements with the help of members of the church to leave China and escape to Australia.
The Tribunal's questioning of the applicant was very detailed. It would appear from the decision record that the applicant had been asked a number of questions, both by this Tribunal and the previous Tribunal, concerning his knowledge of Christianity which, whilst not perfect, appears to have been consistent with someone who knew something about that faith. The Tribunal also questioned the applicant about inconsistencies between the statement given to the Tribunal that he was a builder's labourer and the information contained in the application made on behalf of his son to study in Australia which indicated that he was a high-ranking executive. This statement was corroborated by a further statement in an application for a visitor's visa. Whilst the company for which the applicant had claimed to work had changed, the position had not. This inconsistency led the Tribunal to question the applicant about his earnings as a labourer because the Tribunal made it quite clear to the applicant that it found it implausible that a person who claimed to be even a highly regarded and well-motivated construction worker with responsibilities of what would appear to be a foreman type could have earned the money necessary to send his son to Australia and pay the rather high fees for the education that was being provided.
The matters that I have raised were the subject of the s.424A letter that was sent by the Tribunal to the applicant. The applicant insisted that he had nothing to do with the applications and that he was at all times a builder's labourer as he had said and that the money he had earned was sufficient to allow him to save over a number of years for his son's education. The Tribunal noted that the son's studies in Australia cost $25,000.00 for years 11 and 12, which he had completed in 2006 and 2007, and a commitment had been made to pay a further $33,000.00 for current studies. The applicant indicated that there was about $10,000.00 in his son's account in Australia and that he had a further 200,000.00 to 300,000.00 RMB yuan in his own bank account.
The applicant also produced to the Tribunal some documentation which he submitted supported the claims that he was making concerning the problems that he had had in China. The Tribunal took up with the applicant the independent country information that it had concerning false documentation from China. That also formed part of the s.424A letter to which I have previously referred.
In its “Findings and Reasons” the Tribunal concluded that it could not accept that the applicant had worked on a construction site and therefore he had not participated in bible studies on construction sites, nor was he arrested and detained because he had participated in bible studies on construction sites. The Tribunal came to the conclusion that the applicant could not be accepted as a witness of truth because of the concerns which it had as to the discrepancies in his statements and in his evidence that I have discussed and others which related to his ability to obtain these documents and the contacts which he said that he had had with his family home in China.
On 14 October 2008 the applicant filed an application with this Court for review of that decision. The first ground of the application was that the Tribunal had a reasonable apprehension of bias, the particulars of which related to the use by the Tribunal of information from the China Statistical Year Book concerning the average yearly income of a construction worker in Fuzhou province which appeared to be about 18,976 RMB yuan, considerably less than the applicant had deposed to. The applicant repeats the statements that he had made to the Tribunal about why he had earned more than that amount. But these are not matters which go to the Court's jurisdiction. They appear to be an effort to persuade the Court to differ from the views of the Tribunal, that is asking the Court to conduct an impermissible merits review and I do not see how apprehended bias is constituted on the part of the Tribunal just because the Tribunal prefers independent country information to the evidence of an applicant.
The second matter raised by the applicant concerned the additional documents that he had provided and addresses the Tribunal's reluctance to accept them as genuine. Once again, the applicant repeats the arguments that he had put to the Tribunal and the matters which he put in his statutory declaration in response to the s.424A letter as to why he had not provided them earlier. Again this is seeking merits review. Finally, the applicant refers to the Tribunal's views about his religious practice in Australia. The Tribunal had come to the view that it could not be satisfied, as it was required to be under s.91R(3), that the applicant had not engaged in practice in Australia other than for the purposes of enhancing his claim to protection. The applicant took issue with this, again noting various facts about his practice of Christianity in this country, once again an attempt to seek merits review from the Court.
There are two matters, one of which was raised directly by the applicant and one tangentially, that the Court must comment upon. They relate to the actions of the Tribunal in seeking further information about the son's school fees. I use the word “further information” in a general sense because in fact no information had previously been sought from the school and thus it could be said that the information was not “additional information” within the meaning of s.424 of the Act. What happened was that the Tribunal had sent a fax to the school [CB 298 – 299] requesting this information but for some reason the fax had not been considered or was lost. So the Tribunal telephoned Ms Elva who is responsible for these matters at the school. Ms Elva gave the Tribunal the information which it used about the amount charged to the son and paid by the father. The question is whether or not this information was requested by a method other than that specified in s.424B of the Act and whether the request was one which came within s.424(2). The present situation, by which I am bound, is a decision of the Full Bench of the Federal Court, Lindgren, Stone and Bennett JJ, known as SZLPO v Ministerfor Immigration (2009) 255 ALR 407. In that case the Full Court answered the question:
“Is information "additional information" within section 424(2) only where it is additional information previously provided to the Tribunal by the invitee?”
Yes.
At [99] the Court said:
[99] “The view that "additional information" means "information additional to any information already possessed by the Tribunal, whether it came from the invitee or not", is problematic. The written invitation regime would then apply to all information that the Tribunal might invite a person to give after the Tribunal became first seized of any information at all, unless a contrary indication could be found: compare SZKCQ at [49-51]. Presumably, the first time the Tribunal becomes seized of information is when the secretary sends documents to the registrar under section 418(3). We suggest that a more limited meaning of "additional information" must be looked for. Again, that which suggests itself is "information additional to the information previously given to the Tribunal by the invitee".
[100]We construe the expression "additional information" accordingly.”
This finding by the Full Bench would exclude the “information” requested of the school and thus the concerns quite rightly raised by the Minister about the status of the request are to be laid to rest.
The second matter was raised by the applicant today at the hearing. I do not believe that it is a matter which goes to the jurisdiction of the Tribunal but it is a matter which could cause some concern. The applicant reminded the Court that the Tribunal had written directly to the education provider. I have seen the fax and it is quite clear that it comes from the “Refugee Review Tribunal”. It also mentions the applicant himself. So it will be clear to anybody who read that letter that the applicant was applying to the Tribunal for refugee status in this country. The applicant tells me, and I have no reason to disbelieve him but whether or not it is true is not to the point, that this education provider has in its classes a large number of Chinese students, that by virtue of this fact alone it necessarily has a close association with the Chinese community and, he says, the Chinese consulate. He is concerned that information has been passed back to the Chinese consulate that he is a person who has applied for refugee status in this country. He told me some other things about the reaction of other students to his son which, of course, I am unable to verify, but which, if true, would indicate that the approach by the Tribunal was not kept confidential. These matters alone might be sufficient to raise a sur place claim on the part of the applicant which he would not be allowed to make unless the Minister gave him permission so to do under s.48B of the Act. I recommended to the applicant that he consider these matters with his migration agent.
In regard to the application itself, for the reasons which I have given, I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The application is dismissed. The applicant must pay the respondent's costs which I assess in the sum of $5,500.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 22 July 2009
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