SZLXZ v Minister for Immigration

[2008] FMCA 1144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLXZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1144

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. 

Migration Act 1958 (Cth), s.424A

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant: SZLXZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:  REFUGEE REVIEW TRIBUNAL

File Number: SYG 228 of 2008

Judgment of: Barnes FM

Hearing date: 6 August 2008

Delivered at: Sydney

Delivered on: 6 August 2008

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms L Clegg

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 228 of 2008

SZLXZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal made on 12 October 1999 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People's Republic of China, arrived in Australia in January 1999 and in March 1999 lodged an application for a protection visa. 

3. In a statement attached to the protection visa application the applicant claimed that his parents were Catholic and that he had been brought up under their religious influence.  He claimed that they had participated in an underground church with relatives and were not noticed by others until 1995 when the neighbourhood committee asked the applicant's parents to have a talk at the office.  The applicant claimed that someone from the committee was sent to the church who pretended to be interested in joining, but recorded conversations with the applicant's parents and handed these records over to the police.  He claimed his father was arrested and sentenced to 20 years imprisonment and that he died in prison in early 1998.  He claimed that his mother insisted he leave China, that he unsuccessfully applied for a passport, but with the help of a friend managed to leave China, enter Vietnam illegally and then travel to Australia.

4. The application was refused and the applicant sought review by the Tribunal.  In a statement made in connection with the review application the applicant claimed that in the past he and his family had suffered persecution for reasons of religion and membership of a particular social group and that as the son of a person who “had been arrested and persecuted to death in the prison” his “fate was determined” and he might be arrested at any time.  He claimed he was a “true refugee who had suffered persecution because of [his] religious activities and membership of a (sic) underground church”.

5. The applicant attended a Tribunal hearing.  In its reasons for decision the Tribunal set out the applicant’s claims and evidence at that hearing.  He claimed that his parents became Christians in 1978, that his brother had been working in Beijing and died during the 4 June pro-democracy demonstrations and that his parents became Christians because of what happened to his brother.

6. When the Tribunal put to the applicant that he first said that his parents became Christians in 1978 and that the 4 June incident occurred in 1989, the applicant told the Tribunal that they formally became Christians in 1989. 

7. After initially claiming that he was a committed Christian, albeit not officially christened, and stating that he had attended church in Australia, after a number of questions were put to him about his knowledge of the bible, prayers and hymns the applicant conceded that he was not in fact a Christian.  He claimed his father was a Christian and that he was the family member of a leader of an unauthorised Church. 

8. The applicant claimed that he would have difficulties with the authorities because of his family and that they would not know that he was not a member of the church.  He agreed that he had never been arrested or detained in China.

9. The Tribunal discussed with the applicant a number of inconsistencies between the claims in his protection visa application and the claims put to the Tribunal in oral evidence, including the fact that at the hearing he claimed that his father had been arrested in 1991, notwithstanding that he had originally claimed that the church had first come to the attention of the authorities in 1995 and that he claimed his father died after his release from prison, contrary to his original claim. 

10. After referring to independent country information in relation to the situation in China, the Tribunal found that the applicant was not a Christian, a matter finally conceded at the hearing, but in any event found this to be evident from the applicant’s lack of knowledge of the Christian religion and its practices and ceremonies.

11. The Tribunal gave a number of reasons for its subsequent conclusion that it was not satisfied that the applicant was the son of a Christian preacher who was arrested and charged with organising counter-revolutionary activities because he had been proselytising religion.  First, it found the applicant's evidence on when his family became Christian was “inconsistent and confused”.  It did not accept his explanation, which it found contrived, that his family became Christians in 1978 but were only christened in 1989.  Given his lack of familiarity with Christianity, its beliefs and practices, it was not satisfied that the applicant was raised in a Christian family environment.  It also found his evidence about the circumstances and time at which his uncles came to his home was confused.

12. The Tribunal found that if the applicant's father had been a preacher of religion and arrested as claimed, it was implausible that the applicant would not have known the details of the arrest, particularly as he had claimed that his father was released from prison six months prior to his alleged death.  It observed that this was another inconsistency with what was contained in the application.  The Tribunal was not satisfied that the applicant's father was sentenced to 20 years imprisonment for proselytising religion.  Further, the Tribunal found generally that the applicant was not a credible witness having regard to the inconsistencies in his evidence at the hearing.  It was of the view that the applicant would say what suited his case to strengthen his claim. 

13. The Tribunal also considered the new claim that the applicant made at the hearing that he was concerned he may face problems because the authorities did not know he was not a member of the underground family church.  It found that this was not consistent with his claim that the authorities had a witness who had attended meetings and provided evidence against his father.  It also found that if, contrary to its view, his parents had been Christian the applicant had not been arrested or detained while he was in China.  It found that there were no grounds for believing the authorities would be interested in the applicant at the time of the decision because of a mistaken view he was a member of an underground family church.  It found this claim to be far-fetched.

14. The Tribunal then addressed the implications of the claim that the applicant's brother was killed in the June 4, 1989 demonstrations.  It accepted that this may have occurred, but noted that the applicant was not present at that time and took no part in the pro-democracy demonstrations.  Nor had he claimed to be a pro-democracy activist or even a sympathiser.  The Tribunal found that whether or not the applicant's brother was killed in those circumstances, this was not sufficient to give the applicant a significant anti-government profile.

15. The Tribunal referred to information that many millions of people took part in demonstrations and that the government had not pursued those who were ordinary participants.  It found nothing to suggest that the government would be interested in members of a family of a person who had taken part.  It had regard to information about treatment of pro-democracy activists from the Tiananmen period which indicated that the authorities welcomed participation in economic development by such former activists, but banned any attempt by returning dissidents to engage in political activities.

16. The Tribunal also had regard to the fact that the applicant had not claimed that he was persecuted because of his family background in the decade after the 1989 incident.  It found that even if he had applied for a lawful passport and had been denied a passport because of “bad family background,” such discrimination in this case would not on its own have been so severe as to amount to persecution under the Convention.  The Tribunal saw no basis on which the applicant would be of any interest to the Chinese authorities for any Convention-related reason.

17. The Tribunal considered the applicant's claim that he left China on an illegal passport.  It found that while he may have done so, the penalties for such actions were not unduly harsh in China and in any event that he would be subject to the criminal law being a law of general non-discriminatory application if he were to be punished for his illegal departure and use of an illegal passport.  The Tribunal found that this would not be for a Convention-related reason.

18. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations.

19. The applicant sought review by application filed in this Court on 1 February 2008. 

20. That application raises two grounds.  The first is a contention that the Tribunal “failed to comply with s.424A of the Act”. 

21. In written submissions counsel for the first respondent conceded that s.424A of the Act applied to the Tribunal decision, as the decision was made after the amendments which brought s.424A into force on 1 June 1999, notwithstanding that the application had preceded that date. No failure to comply with s.424A of the Act has been established. No particular information was identified in the application for review. The first respondent addressed the possible application of s.424A to inconsistencies between the claims in the protection visa application and those made to the Tribunal.

22. However, as contended for the first respondent, in this case the nature of the inconsistencies is such that they do not constitute information within s.424A in light of the approach taken by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190. In SZBYR Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ had regard to whether relevant portions of a statutory declaration accompanying a protection visa application in their terms constituted a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia had protection obligations (at [17]). Their Honours referred with approval to the discussion of the meaning of the word "information" by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and the view that that concept does not extend to “identified gaps, defects or lack of detail or specificity in evidence”.  As their Honours stated at [18]:

    However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence

23. This is not a case in which it is necessary to a consider the extent to which omissions may nonetheless be characterised as information, as it is clear that what is in issue is inconsistency in the evidence of the applicant in the sense considered in SZBYR. 

24. There was information before the Tribunal that the passport on which the applicant was travelling was a passport in another person's identity. However this was not such as to give rise to obligations under s.424A(1), although this information was provided by the applicant in his protection visa application. He referred to illegally entering Vietnam without any travel documents and travelling on a bogus passport. However this information was not in itself information that was, in its terms, “a rejection, denial or undermining of the [applicant’s] claims to be [person] to whom Australia owed protection obligations” (see SZBYR at [17]). Indeed, as pointed out by counsel for the first respondent, it was information that might have supported his claim to be a refugee and which was entirely consistent with his claim as to how he departed China.

25. No failure to comply with s.424A is made out.

26. The second ground in the application is a generally-expressed ground that: “Regarding to other issues raised from the Tribunal's decision.  It is obviously ill-founded without any substantial evidences, excepting its erroneous finding based (sic).”

27. This ground is lacking in clarity.  Insofar as it takes issue with the Tribunal's rejection of the applicant's credibility, credibility is a matter for the Tribunal and the Tribunal findings in this respect were open to it on the material before it for the reasons that it gave. 

28. Insofar as it takes issue with the Tribunal's rejection of the applicant’s claims in relation to what occurred to his family and somehow suggests that it was for the Tribunal to produce evidence to warrant such a conclusion, as Gummow and Hayne JJ stated in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]:

    It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

29. It is also well-established (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451) that the Tribunal is not required to engage in “an uncritical acceptance of any and all allegations” made by applicant and is not required to accept a claim merely because positive evidence to the contrary is absent.

30. The applicant filed an affidavit at the time that he filed his application.  Included in that affidavit is a statement that his protection visa application was “apparently” completed by an advisor who had written material and that the applicant had signed blank forms.  In the affidavit the applicant referred to the fact that the application was refused and that he sought review by the Tribunal, acknowledged that he attended the Tribunal hearing and then took issue with when he received the Tribunal decision.  He claimed that this was not until 29 December 2007, although he conceded in cross-examination that he had received the Tribunal decision in 1999, but took issue with his inability to obtain documents and translations from his migration agent after the Tribunal decision.

31. The affidavit then contended very generally:  "If the Court is satisfied that there has been fraud by migration agent I would says (sic), where a migration agent misleads an applicant or breaches their duty to the applicant." 

32. These contentions do not establish fraud in the manner considered by the High Court in SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189.

33. Insofar as the applicant takes issue with conduct of his advisor prior to the Tribunal decision, I note that the applicant attended the Tribunal hearing. There is nothing in the applicant’s evidence to suggest that there was fraudulent advice from such a person. Insofar as it might be suggested that fraud could be inferred from the fact that the applicant signed blank forms and let the advisor complete the form, this does not constitute dishonest conduct or fraud as considered in SZFDE and explained by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501.

34. Indeed in SZFDE the High Court stated at [53] by reference to the dissenting judgment of French J in the Full Court of the Federal Court that:

    French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. 

35. As stated in SZLIX at [33] “The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal.”

36. The circumstances in this case are not such as to establish fraud in the SZFDE sense and no jurisdictional error is established on this basis.

37. In oral submissions the applicant took issue with the Tribunal’s conclusion on the basis that the Tribunal had admitted that his family was persecuted, but had denied that he was a refugee.  As set out above, the Tribunal did not go so far as “admitting” that the applicant's family had been persecuted, except that it accepted that the applicant's brother may have been killed in June 4, 1989 demonstrations.  However it proceeded on the basis that even if that were so the applicant was not a person who had a well-founded fear of persecution.  It was not so satisfied for the reasons that it gave having regard, in particular, to country information.

38. Moreover, while the Tribunal rejected the claim about the applicant's father having been arrested, it nonetheless considered whether if his parents were Christian there were any grounds for believing that the authorities would be interested in the applicant. It did not accept that there were grounds for believing the authorities would be interested in the applicant because of a mistaken view that he was a member of an underground family church. In other words the Tribunal considered but rejected the applicant's claims to have a well-founded fear of persecution based on his membership of a family that may have engaged in activities that invoked the interest of the authorities or was involved, or may have been involved, in the June 4, 1989 demonstrations.

39. No jurisdictional error is established on that basis. I reiterate for the benefit of the applicant that merits review is not available in this Court insofar as he takes issue with the Tribunal factual findings in that respect.

40. As no jurisdictional error has been established, the application must be dismissed.  The delay between the time of the Tribunal decision and the application for judicial review need not be addressed, because this is not a case in which it is necessary to consider whether relief should be refused on discretionary grounds.

    RECORDED  :  NOT TRANSCRIBED

41. The applicant has been unsuccessful.  The Minister seeks costs in the sum of $4,700.  The applicant told the Court that he did not have a job at present, which I take to be a suggestion that he would have difficulty in making payment of any costs. However the applicant's impecuniosity is not, in all the circumstances, a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  15 August 2008