SZLXB v Minister for Immigration
[2008] FMCA 913
•2 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 913 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered the Applicant’s claims – whether the Tribunal was biased. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 741 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZLXB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 110 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 July 2008 |
| Date of last submission: | 2 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Ms B. Griffin, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 110 of 2008
| SZLXB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 10 December 2007 and handed down on 20 December 2007.
The applicant claims to be from the People’s Republic of China (“China”) and Christian faith (“the Applicant”).
The Applicant arrived in Australia on 27 March 2007 having departed legally from Baiyun on a passport issued in his own name and a visa issued on 14 March 2007.
On 10 May 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 7 August 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 6 September 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 10 December 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 January 2008, 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 Applicants application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by the Chinese authorities for his membership of an underground church and his practice of Christianity in China.
The Applicant claimed that in February 2002 he moved from Fujian to Anhui in order to obtain work. The Applicant stated he left his wife and children in Fujian.
The Applicant claimed that in February 2006 he was introduced to a Christian underground church and became a member. The Applicant claimed to participate in gatherings three times a week in secret and received one week’s religious training in 2006. The Applicant stated that, following the training, he was baptised with about 15 others on 7 May 2006.
The Applicant claimed that in August 2006 he was involved with distributing religious pamphlets supplied by the underground church and was asked to be a leader of a new “propaganda group”.
The Applicant stated that on 1 October 2006 he attended another seven day training program conducted by a priest from Fujian. The Applicant stated that during the training he was informed that a fellow member had been arrested by the police on 3 October 2006 by the Public Security Bureau (“PSB”). The Applicant stated that he decided to terminate the training immediately, however, he was arrested by police on the evening of 3 October 2006. The Applicant stated that he was detained by police until 31 October 2006 and interrogated during that time. The Applicant stated that he was released following a bribe paid by his family to the PSB.
The Applicant stated that he was regularly questioned by police and required to report to them following his release. However, he claimed that he still continued his religious practices in secret and from January 2007 organised the distribution of leaflets requesting the Chinese authorities to stop persecuting Christians.
The Applicant stated that following his arrival in Australia on 27 March 2007, members of his church in Anhui were arrested on 6 April 2007 and confessed the Applicant’s religious activities to the police. The Applicant claimed that since that time he has become a target of the PSB.
The Delegate’s decision
On 7 August 2007, 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 did not accept the Applicant’s claims as “plausible or credible” and noted that the Applicant did not provide any corroborative evidence of his claims.
On 6 September 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided two letters from pastors in Australian churches in support of the review application. On 10 December 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Tribunal’s review and decision
On 18 September 2007 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 18 October 2007 to give oral evidence and present arguments.
Following the hearing, the Tribunal wrote to the Applicant on 25 October 2007 identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”). The s.424A Letter requested the Applicant respond by or at a hearing on 9 November 2007.
The Tribunal wrote a further letter to the Applicant dated 25 October 2007 inviting him to attend a further hearing on 9 November 2007 to give oral evidence and present arguments.
On 9 November 2007 the Applicant attended that hearing and gave further evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The Tribunal summarised in detail the claims made by the Applicant, both written and oral. The Tribunal noted in detail exchanges it had with the Applicant about his evidence and noted matters of concern that it put to the Applicant and his responses. In particular, the Tribunal noted that it put to the Applicant that it had serious concerns about the following claims:
a)The Applicant’s willingness to remain in China despite the detention of his friend and his own alleged detention for four weeks in October 2006.
b)The failure of authorities to obtain any meaningful information about the Applicant while he was in China.
c)The alleged arrest of fellow church members in China following the Applicant’s arrival in Australia.
d)The Applicant’s failure to seek protection after his alleged detention in October 2006.
e)The “oddity” that the authorities identified him as an underground Christian only after his departure from China.
f)The Applicant’s claim that he was dismissed from his employment on 15 April 2007 rather than immediately after the Applicant’s alleged detention in October 2006.
g)The failure of the Applicant to enquire about his ability to practice Christianity in Fujian where the Tribunal found there are many Christians in registered and unregistered churches.
h)The Applicant’s limited knowledge of the church in Fujian.
The Tribunal noted the explanations provided by the Applicant in respect of these concerns and a fair reading of the Tribunal’s decision makes clear that it gave due consideration to those explanations.
The Tribunal found the Applicant’s knowledge of “key Christian teachings and practices” as consistent with his introduction to Christianity as recently as 2006. However, the Tribunal found that the Applicant had not suffered harm and was not at risk of further persecution by reason of his membership of an underground or unregistered Christian church in China. In reaching this conclusion the Tribunal had regard to the five month delay from the Applicant’s alleged release from detention in October 2006 to his departure from China. In particular, the Tribunal noted that the Applicant did not apply for a visa in China to enter Australia until January 2007.
The Tribunal did not accept the Applicant’s explanation for his delayed departure from China. The Tribunal noted that the Applicant in fact conceded that he did not actually fear persecution in China at that time, and was originally planning to return to China after his visit to Australia. The Tribunal found that, in the circumstances, such intention was not consistent with the conduct of a person who had a well-founded fear of persecution and, accordingly, concluded that none of the claims of past harm were true.
The Tribunal also found that the Applicant’s failure to inform himself about Christianity in Fujian, where his wife and child continued to reside, detracted from his claim to have had an interest and commitment to Christianity and to have been a “major activitst” in Anhui.
The Tribunal also found that the Applicant’s alleged religious activities in 2006 lacked credibility. In particular, the fact that the Applicant was allegedly able to continue his religious activities unimpaired following his release alleged release from detention, in late October 2006 despite official surveillance.
In summary, the tribunal stated:
“In some, the Tribunal rejects the Applicant’s claim to have been involved in any unregistered Christian group in Anhui that was persecuted or at risk of persecution. It does not accept that he suffered any harm, because of any association with Christian groups or any other reason.”
The Tribunal then went on to reject specifically the Applicant’s membership of an underground church; his claim of detention by the PSB; and his claim of harassment and monitoring by the PSB after October 2006.
The Tribunal also considered and rejected the Applicant’s claim that he currently fears persecution if he were to return to China because of the arrest in April 2007 of other members of his church and their alleged disclosure to the authorities of his role in the church.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant has participated in the Panel Advice Scheme.
The Applicant confirmed that he relied on the grounds contained in the application filed on 15 January 2008. In support of those grounds the Applicant relied on handwritten submissions filed in Court at the hearing.
The application filed on 15 January 2007 is a long and rambling document and largely made up of a repetition of the Applicant’s factual claims and the Applicant’s disagreement with adverse findings and conclusions made by the Tribunal. The grounds are expressed as follows:
“1. The Tribunal made a significant mistake in its decision.
2. The Tribunal failed to consider my evidence correctly; and the Tribunal failed to look at my claims impartially and properly; and the Tribunal’s decision has included a reasonable apprehension of bias.
3. The Tribunal made its finding without considering my important evidences; and again, the Tribunal’s decision has included a reasonable apprehension of bias.”
Ground 1
Ground 1 does not identify capable of review by this Court.
However, the particulars in support of this ground disclose that at the heart of the Applicant’s complaint in relation to ground 1 is the Tribunal’s finding that the Applicant’s usual place of residence in China is Fujian and its decision to assess his claims with reference to Fujian, rather than Anhui.
However, in making that finding the Tribunal had regard to the fact that the Applicant was born in Fujian and that his wife and two children continue to live there. The Tribunal acknowledged that the Applicant moved to Anhui for work in 2002. However, the Tribunal had regard to the fact that the Applicant told the Tribunal that he has lost his job in Anhui since coming to Australia and that his contacts with people in Fujian are limited. The Tribunal found that these factors led it to conclude that the Applicant has stronger ties with Fujian and would go there if he were to return to China.
Moreover, the Tribunal gave this information to the Applicant in a letter dated 25 October 2007 and invited him to comment. Relevantly, the letter stated:
“You advised in your protection visa application that you come from Fuqing; that your friend… from Fujian introduced you to [the person who was allegedly ultimately detained]; that your wife and son continue to live in Fujian; and that it was a priest from Fujian who conducted the religious training course in October 2006.
This information is relevant because it shows that you have strong connections with Fujian, and that that is the place you will return to in China. It suggests that even if you had any problems practising Christianity in Anhui province, you could easily have found out about the situation for registered and unregistered churches in Fujian. You do not appear to have made any enquiries, even though you said at hearing that you encouraged your wife to consider Christianity. This may cast doubt on the truthfulness of your claim to be a Christian.”
In the circumstances, the Tribunal’s letter makes clear that the Tribunal was likely to find that the Applicant had strong connections with Fujian and that he would return to Fujian if he were to return to China.
The Applicant did not respond to the Tribunal’s letter.
In the circumstances, it was open to the Tribunal to find that the Applicant’s usual place of residence in China was Fujian and to assess his claims with reference to that place.
Ultimately, the Tribunal’s rejection of the Applicant’s claims was not based on the fact that the Tribunal assessed them against the Fujian province. Rather, the Tribunal rejected the Applicant’s claims because it found them to be untrue. A fair reading of the Tribunal’s decision makes clear that the Tribunal understood that the Applicant’s claims of past persecution related to his alleged experiences in Anhui province, however, the Tribunal rejected those claims. The Applicant’s claim that he would not return to Fujian province because of a fear of persecution was based on his claims of past harm in that place. The Tribunal found those claims to be false. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Grounds 2 and 3
Grounds 2 and 3 of the application alleged bias and are based on: the applicant’s complaint about the Tribunal’s finding that he was likely to return to Fujian province; the fact that the Tribunal found that the delay in the Applicant leaving China affected the credibility of his claims; the rejection of the Applicant’s claims of detention and continued religious activities after his alleged release from detention in October 2006; and the selective use by the Tribunal of independent country information “according to its own taste”.
However, these particulars provided by the Applicant in support of his allegations of bias do not make out such an allegation.
A fair reading of the Tribunal’s decision makes clear that it explored these matters with the Applicant; put to the Applicant the Tribunal’s concerns about this evidence; and had regard to the Applicant’s explanations.
In the circumstances, the Tribunal’s findings and conclusions were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The Applicant’s complaints are no more than disagreements with the adverse findings of the Tribunal. Such complaints invite merits review which this Court cannot undertake [Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J].
The Applicant’s disagreement with the Tribuanl’s adverse findings is not evidence of apprehended bias (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 741 at [44]).
Accordingly, the allegations of bias are not made out.
The Tribunal’s decision to have regard to independent country information concerning religious practice in Fujian was open to it in light of the findings it made.
Accordingly, none of the grounds on which the Applicant relied are made out.
Conclusion
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 reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 2 July 2008
0
8
2