SZLYV v Minister for Immigration
[2008] FMCA 1353
•18 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1353 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – unparticularised allegation of jurisdictional error not made out – merits review not available in jurisdictional review proceedings – Court cannot review Tribunal’s findings of fact. |
| Migration Act 1958, ss.91R(3), 424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLYV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 299 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 September 2008 |
| Date of Last Submission: | 18 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 299 of 2008
| SZLYV |
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 an active member of a Christian church. The applicant claims to fear persecution in China because of his Christianity and his association with the church. He arrived in Australia on 12 July 2007.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 27 September 2007. 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.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 73 – 76). Relevantly, they are in summary:
a)the applicant made various statements concerning his association with a Christian church in China before arriving in Australia, first stating that he became an active member of a Christian church in China through his wife’s influence and from 1999 to November 2007 attending church every Sunday with his wife. He later stated that he knows little of Christianity and had been asked by his wife to attend an underground church. He attended the church occasionally and sometimes he attended and sometimes he dared not go;
b)the applicant was baptized in 2001. He later stated that this was done at the request of his wife and he described it as water being sprayed on him;
c)the applicant said that in about August 2003 their church was branded as an illegal church and the applicant and other church members were denounced for conducting illegal religious activities and “warned to be dismissed”. Subsequently he attended family religious meetings at the home of one of the church members. He later stated that when the organisation was made illegal in 2003 his wife was arrested and detained for three months;
d)the applicant had hidden in Guangzhou city until he was granted a tourist visa for Australia. His wife was unable to leave when she was arrested and it was difficult for her to obtain a tourist visa;
e)the applicant said there is no freedom of religion in China and he wanted to find a place where he could practise his Christianity freely. He later stated he knew nothing about Christianity but he became involved in his wife’s case and fears he will be arrested if he returns to China. The applicant said that he would be arrested and beaten up by the police because being a Christian is not allowed; and
f)since arriving in Australia he has attended a Chinese church in Padstow about 5 times.
The Tribunal indicated to the applicant that there were inconsistencies in his evidence, that he had demonstrated no knowledge of Christianity and that this might be adverse to his application for review. The applicant said that he understood this and why it was important but said that he had no other comments to make and did not want any further time to comment or to respond to the Tribunal.
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:
a)the Tribunal found the applicant was not a truthful witness as there were significant inconsistencies in his evidence. The Tribunal further noted that it was not satisfied with the applicant’s explanations for these inconsistencies, noting that:
i)the applicant said in his statement attached to his protection visa application that he and his wife attended church every Sunday from 1999 until November 2007 and then later stated he attended church occasionally and sometimes he dared not go at all. The applicant’s explanation for this was that his wife went to church every week and sometimes he dared not go; and
ii)the applicant did not include in his protection visa application information given at the Tribunal hearing that his wife was arrested and detained for 3 months in 2003 and that he hid in Guangzhou city until he was granted his tourist visa. His explanation for this was that a friend wrote the statement for him in English, he thought the information was useless and he was scared. The Tribunal noted that this explanation did not account for the absence of such significant details from the statement;
b)the Tribunal found that the applicant had an extremely limited understanding of Christianity and that this was highly inconsistent with his claim to have been involved with Christianity in China since 1999, noting that:
i)he could not give any details about what he believed as a Christian;
ii)he did not know about Easter, did not know the significance of Christmas and could give not details about God or Jesus; and
iii)he indicated he knew little about Christianity and he could only give scant details of his baptism in 2001;
c)in light of the above, although the Tribunal was prepared to accept that the applicant attended church services in Australia, given its findings in relation to the applicant’s almost non-existent knowledge of Christianity the Tribunal did not accept that he is a Christian and concluded that he did not practise and was not involved with Christianity in China; and
d)as far as the applicant’s church attendance in Australia was concerned, this was impliedly disregarded because the Tribunal was not satisfied that the applicant engaged in this conduct otherwise than for the purpose of strengthening his refugee claim.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Refugee Review Tribunal committed jurisdictional errors of law.
At the hearing today the applicant made additional submissions addressed to the correctness of the Tribunal’s finding that he was not entitled to a protection visa.
Jurisdictional error
Dealing first with the allegation made in the application that the Tribunal was guilty of jurisdictional error, it should be noted at the outset that the allegation is not particularised. Without any indication of the fashion in which the decision is affected by jurisdictional error the allegation has no substance. Even so, the Court should consider whether jurisdictional error can be discerned in the Tribunal’s decision.
At this point it is appropriate to say I have discerned no such error.
Absent any allegation of bias, and there was no such allegation here, the Tribunal’s procedural obligations are codified in div.4 of pt.7 of the Act. The most important sections in that division are s.424A and its new companion, s.424AA, and s.425. No s.424A notice was given to the applicant but the Tribunal utilised s.424AA instead to identify to the applicant such information as was before it that it considered would be the reason or part of the reason for affirming the decision under review. A consideration of the Tribunal’s decision record discloses that the Tribunal also satisfied the additional procedural requirements of s.424AA(b). I am satisfied that the Tribunal discharged its obligations under s.424A and s.424AA by the manner in which it gave the relevant information orally to the applicant and its explanation to him of the information’s significance.
The other principal section of div.4 of pt.7 is s.425. The applicant was invited to attend the Tribunal’s hearing to give evidence and to put arguments in relation to the issues under review. It is also apparent that he was put on notice that the veracity of his entire claim was in issue. For these reasons, no breach of s.425 is disclosed by a review of the Tribunal’s decision. Nor is it apparent that any other of the sections of the Act found in div.4 of pt.7 was breached by the Tribunal.
It should also be noted that the Tribunal made reference to the applicant’s church attendance in Australia and disregarded it pursuant to s.91R(3) for the reasons I have already set out. It must also be noted that the Tribunal did not rely on the information concerning the applicant's church attendance when reaching its decision that he was not a Christian. Correctly, it disregarded the church attendance in Australia for all purposes.
Merits review and Tribunal’s fact finding
In his oral submissions today the applicant said that what he told the Tribunal was the truth and yet the Tribunal did not believe him. However, as already noted, the Court cannot review the Tribunal’s findings of fact nor its decisions on the merits of a review application. The role of the Court is to declare and enforce the law which governs the Tribunal’s operations. The Tribunal’s function is, operating within the law, to determine the facts of the matter and to reach a decision on the merits of the claim. If, operating within the law, the Tribunal arrives at an incorrect finding of fact, even if it is one on which its ultimate finding on the application is based, that is not a matter reviewable by the Court. For the same reasons the Court cannot embark on a review of the correctness of the Tribunal’s ultimate decision.
For these reasons the matters which the applicant has raised today in his oral submissions do not amount to a basis on which the Tribunal’s decision might be set aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 26 September 2008
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