SZMAI v Minister for Immigration
[2009] FMCA 934
•8 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 934 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act1958 (Cth), ss.91R, 422B |
| Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 SZJGV and Others v Minister for Immigration and Citizenship and Another (2008) 170 FCR 515 SZMHD v Minister for Immigration and Citizenship [2009] FCA 712 |
| Applicant: | SZMAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1088 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 8 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1088 of 2009
| SZMAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 9 April 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in June 2007 and applied for a protection visa in August 2007. The application was refused and the applicant sought review by the Tribunal. The Tribunal as originally constituted (the first Tribunal) affirmed the delegate’s decision. The applicant sought judicial review. This Court set aside the decision and remitted the matter to the Tribunal for reconsideration. The Tribunal as reconstituted (the second Tribunal) again affirmed the delegate’s decision and the applicant again sought judicial review. The matter was remitted for reconsideration. It is the subsequent reconsideration by the third Tribunal (referred to hereafter as the Tribunal) that is the subject of these proceedings.
The applicant attended three hearings, including a hearing before the Tribunal as most recently constituted. In its reasons for decision the Tribunal set out at length the applicant’s claims in his original protection visa application and his evidence when interviewed by the delegate of the first respondent, at hearings conducted by the first and second Tribunals, as well as at the hearing that it conducted.
The applicant claimed in essence to fear persecution as a result of his practice of Christianity. He claimed that he came from a Christian family in China and that worship meetings were held regularly at a factory he owned. He claimed that in mid-2006 the Public Security Bureau (PSB) raided the factory while a meeting was taking place, that he was taken to the police station, detained and threatened that if he did not stop organising such meetings he would be sent to gaol and the factory closed. He claimed that he continued to hold meetings and that in February 2007 the PSB again arrested him and detained him for one day, releasing him on payment of a bribe.
The applicant claimed that after this incident he continued to live and work in China until he left the country in mid-2007, but that the authorities continued to check on him. He claimed that he decided to leave the country in search of religious freedom.
After a detailed account of the applicant’s claims and their development over time and the evidence given at the Tribunal hearings, the Tribunal considered the fact that in August 2007 the applicant had been diagnosed by an intern psychologist at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors as displaying symptoms consistent with post traumatic stress disorder (including memory difficulties).
The Tribunal considered the need for it to take reasonable steps to ensure that an applicant was given a real opportunity to give evidence and submissions in support of his or her case. However, it recorded that according to the applicant’s evidence at the Tribunal hearing he did not currently see any doctors and had not done so since shortly after his arrival in Australia. When asked about his post traumatic stress disorder he eventually recalled the medical report, but advised the Tribunal that apart from that occasion he had not obtained any further assistance. He conceded that he had not been prescribed any medication, counselling, therapy (however described), or had any further sessions with a psychologist or a psychiatrist. The Tribunal found that given the lack of any ongoing treatment, further documentary evidence and any obvious psychological impediment at hearing which may have prevented the applicant from giving evidence, it was satisfied that his previously documented psychological condition had not prevented him from appropriately putting or having a real opportunity to put his case.
The Tribunal addressed the applicant’s claims at the hearing that he had received only three years education in China. It referred to the discussion at the hearing of the inconsistency of that claim with his claim in the protection visa application that he had attended school for six years and his explanation that he had only four or five years education in reading and writing Mandarin. The Tribunal had regard to the fact that the applicant had confirmed that the handwritten claims in his protection visa application were in his own handwriting and to his evidence about his background and business experience. It found that while the applicant claimed that he had problems reading Mandarin (his first language and the language in which he had requested an interpreter for the hearing) on the evidence before it, it was satisfied that the applicant’s capacity to read and write was greater than he had sought to establish. The Tribunal was satisfied that applicant’s alleged lack of formal education had not prevented him from being provided with a real opportunity to give evidence and make submissions in support of his case.
The Tribunal then considered the credibility of the applicant. It did not accept for reasons it gave that he was a witness of truth. The Tribunal was satisfied that the applicant was “prepared to embellish, if not entirely fabricate his material claims, where he believed it would enhance his prospects” of success and that there were reasonable grounds to reject all of his material claims.
The Tribunal considered the applicant’s evidence in relation to the claimed June 2006 arrest, noting his evidence that he had attended church between 1990/91 and 2005 without any problems for himself or his family although it accepted, based on country information, that it was prima facie possible that the authorities in the applicant’s province had decided to pressure unregistered churches from late 2005 as the applicant claimed.
The applicant claimed that in June 2006 the PSB attended his factory, arrested him and searched the factory premises for religious material. However, although the applicant agreed that the PSB officers knew that his home was located above the factory, they had not searched his home. The Tribunal recorded that (as it had put to the applicant) if he was suspected of hosting a religious gathering and the PSB officers had searched the factory, it was not plausible that they would not have searched his home. While it found that without more this would not have caused it to draw any adverse inferences, taken together with other adverse credibility findings, this was one of the reasons that ultimately satisfied the Tribunal that the applicant was not a witness of truth.
The Tribunal then addressed the applicant’s claims that although he had been detained for 20 hours, released on payment of a bribe and the PSB authorities and other authorities were keeping a watch on him thereafter, he had nonetheless again commenced hosting religious gatherings at his factory and had not taken steps to protect himself, because his wife wanted him to continue to hold church services in his factory and it would be “inconvenient” for employees and elderly neighbours if the services were relocated. The Tribunal found that given the applicant’s claims that he had been detained and warned, understood that the authorities may act brutally and feared persecution, if he had been arrested for the reasons claimed or understood that the authorities may be watching him, he would have taken further steps to protect himself and his wife and the possibility of inconveniencing neighbours would not have prevented him from seeking to do so, that he did not do so was one of the reasons that the Tribunal concluded the applicant was embellishing or fabricating his evidence. It found that if he was in fact detained in June 2006, it was positively satisfied that he was not detained for the reasons he claimed. It had regard to this issue in finding that he was not a witness of truth.
The Tribunal also had regard to the applicant’s claim that in February 2007 he was again arrested, although his premises were not searched. While he claimed he was detained for one day and released on payment of a bribe the Tribunal recorded that when he had been asked by the previous Tribunal why he had not mentioned the payment of a bribe earlier, he said he was embarrassed, as he understood that this was evidence of corruption on his part and that such behaviour was not acceptable in Australia.
The Tribunal accepted that the fact that an applicant may not provide all his or her evidence in writing to the Department without more did not suggest that he or she was not a witness of truth, but found that the applicant’s claim to have omitted the claim about payment of a bribe due to being embarrassed was not plausible. It found that without more this evidence would not have caused it to draw any adverse conclusion but that, taken with other adverse findings it was satisfied that it was evidence that the applicant was prepared to embellish, if not fabricate, his evidence where he assumed it may assist him to invoke refugee protection obligations in Australia.
The Tribunal also had regard to the applicant’s Christianity, in light of his claims that he and his family had been devout Christians since his childhood and that his sometimes irregular religious practise had been due in part to his need to be successful in business. The Tribunal recorded that it had put to him that the other earlier Tribunals had been satisfied he knew little about, and about the practice of, Christianity, that he conceded this and said he still knew little about and was still “not very familiar” with Christian practice.
It recorded the applicant’s claim that he practised Christianity because people were supportive and he found it relaxing but that when asked about his Christian knowledge (such as about church hymns and/or bible stories) he said he had read the bible in China and in Australia but could not remember any story. The Tribunal referred to the fact that while the applicant had previously claimed to have problems reading Mandarin in an effort to explain, among other things, his limited knowledge of Christianity, it had found that it was satisfied that his capacity to read and write was greater than he had sought to establish. The Tribunal continued:
At any rate, though the applicant was unable to tell the present Tribunal, a previous Tribunal had recorded the following exchange:
The applicant said, correctly, that there were Ten Commandments but the summary he gave of their content was: ‘You cannot go to get me or go to a prostitute and you cannot do the bad things.’ He said that he read in the Bible about who had given the Ten Commandments but now he could not remember. Asked about something in the Bible which had lasted for 40 days the applicant said that he had forgotten. He said that Jesus had turned water into food and had used five cakes divided among 5,000 people. Asked about other miracles Jesus had performed the applicant said that he had let the sea water waves become peaceful. Given the opportunity to mention anything else the applicant referred to Chapter 16, verse 25, which he said stated: ‘For those people who want their own lives, their will be done.’ (The first Tribunal suggested in its decision that the applicant might have been referring to Matthew 16:25: ‘For whosoever will save his life shall lose it: and whosoever will lose his life for my sake shall find it.’)
The Tribunal recorded that it had again questioned the applicant about his religious knowledge, including miracles, and that the applicant said that Jesus received the Ten Commandments from God, that Jesus had attended a wedding and turned water into wine, but that he could not remember any more miracles. When asked what benefits he derived from his Christian practice, he said he believed his family was safe in China and that “lots of people help [him]”.
The Tribunal understood that some of the applicant’s responses about Christian miracles were not accurate. It had regard to the fact that it was not fatal to an applicant’s case that he did not appear to have a good knowledge of the religion to which he claimed to adhere and that the danger involved in the practice of some religions in some countries could limit the opportunity to gain detailed knowledge of the religion in country. However it observed that in the present case the applicant claimed to have attended church, at times irregularly, since he was a child and in more recent times to have attended church and bible study classes more regularly in China. The Tribunal was satisfied the applicant knew virtually nothing about, or about the practice of, Christianity.
As the Tribunal was not satisfied that the applicant was a witness of truth and was positively satisfied he knew virtually nothing about Christianity from his time in China, it was satisfied that should he return to China he would voluntarily and without duress continue to not practice Christianity in China “preferring as he does to focus his time on his business and or (sic) other secular ventures”.
The Tribunal concluded, based on the adverse credibility findings, that it was not satisfied the applicant was a sincere and genuine Christian as claimed or even that he was a mere practitioner. Nor was it satisfied that he had been imputed with such practice in the People’s Republic of China in the past or that he had a real chance of being imputed as a Christian (including attendance at an unregistered church in China) should he return. The Tribunal did not accept that the applicant had a well-founded fear of persecution arising from his alleged practice of Christianity, or for any other Convention reason, in China.
The Tribunal referred to the applicant’s claims about his attendance at church in Australia and to the provisions of s.91R(3) of the Migration Act 1958 (Cth) and cases such as SZJGV and Others v Minister for Immigration and Citizenship and Another (2008) 170 FCR 515. It observed that when the applicant was questioned about his religious knowledge, including any religious knowledge he may have acquired in Australia, his responses satisfied the Tribunal that he knew virtually nothing about, or about the practice of, Christianity in Australia. When considered with the other adverse credibility findings, it was satisfied the applicant’s relevant conduct in Australia (including attending church and reading the bible) must be disregarded, as it was not satisfied that such conduct was engaged in for purposes other than for strengthening his claim to be a refugee.
In light of the applicant’s evidence that his family remained in China without problems, the Tribunal was not satisfied the applicant had a well-founded fear of persecution in China for reason of his family members’ religious practice.
The applicant sought review by application filed in this court on 5 May 2009. He has not filed written submissions, but was given the opportunity to make oral submissions today.
The first ground in the application sets out the applicant’s claim that he applied for protection and came to Australia because of a “fear of losing religious freedom” and facing action by the Chinese authorities. In ground two he claimed that his fears were well founded and were such as to come within the definition of refugee in the Refugees Convention. Such grounds do not establish any basis for a claim of jurisdictional error. Insofar as they seek merits review, merits review is not available in this court.
In ground three, the applicant contended that the Tribunal committed “judicial error during its assessment of [his] application”, in that it “did not fully exercise its power to fairly review [his] application as required under S.422B”. I take this to be a reference to s.422B of the Migration Act. When given the opportunity in oral submissions to elaborate on this ground, the applicant simply stated that the Tribunal considered his case in the wrong way.
Section 422B(1) provides that Division 4 of Part 7 of the Act is to be “taken to be an exhaustive statement of the requirements of the natural justice hearing rule”, in relation to matters that it deals with. It may be that the applicant intended to rely on that s.422B(3) which provides that: “In applying this Division, the Tribunal must act in a way that is fair and just”.
However, as the Full Court of the Federal Court stated in Minister for Immigration and Citizenship v SZMOK and Others (2009) 257 ALR 427 at [15], s.422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4. Their Honours went on to state at [16] that:
Section 422B(3) speaks of how the tribunal must act in applying Div 4. It is not a free standing obligation, but simply draws content from the other provisions of Div 4.
(Also see SZMOK at [18]).
In SZMHD v Minister for Immigration and Citizenship [2009] FCA 712 Jacobson J stated at [55] that:
… the Full Court held [in SZMOK] at [16]-[18] that s 422B(3) did not qualify the express statement in s 422B(1) that Div 4 contains an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
As expressed, ground three does not establish jurisdictional error by reference to s.422B. It may be that ground three, along with grounds four, five and six, is intended to raise an allegation of actual or apparent bias.
In ground four the applicant contended that the member of the most recently constituted Tribunal deliberately asked him questions beyond his ability to respond, explaining that it was for the purpose of assessing if he was a Christian as claimed, because the previous Tribunal had commented that he had little biblical knowledge. The application repeats the applicant’s claim to be a Christian and his belief that he must be honest in providing his answer, that he had little knowledge about the bible and that due to his education level he could not remember very well all the teaching in the bible. Reference was made to the part of the Tribunal reasons for decision that referred to what occurred in the Tribunal hearing in relation to the applicant’s knowledge of Christianity. It was acknowledged that during the hearing the Tribunal asked the applicant some questions related to the theory of Christianity and that he was not able to explain. He claimed that this was because he could not understand the “true meaning” of the questions and reiterated his beliefs. Ground five is associated with this ground. It refers to the fact that the Tribunal concluded that the applicant was not a Christian because he was not a credible and truthful witness.
The applicant contended that the Tribunal made an error in making such an assumption and in its subsequent conclusion by drawing an “unqualified inference” that was said to be “against the principle of laws”. In paragraph six of the application the applicant gave an analogy relating to the fact that many parents tell their children not to gamble, smoke or take drugs but could not tell “the fundamental reasons why these are not good for their children”. It was submitted that if an inference was drawn that parents were not credible parents or did not love their children, “the order of our world [would] have to be changed drastically.”
I have considered whether there is anything in the material before the court to establish either actual or apprehended bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 or more generally whether the Tribunal’s fact finding was conducted in a manner which could result in a reasonable apprehension of bias as considered in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264. However such claims are not made out on the material before the court.
First, the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The applicant sought in oral submissions to take issue with the Tribunal questioning of him in the hearing, however insofar as he purports to rely on matters other than those recorded in the Tribunal reasons for decision, I note that he had, but did not take, the opportunity to file a transcript of a Tribunal hearing in these proceedings. His generally expressed concerns about the Tribunal asking him very complicated questions is not such as to cause the court such concern that it would be appropriate (notwithstanding that there was no such request) for there to be any opportunity for the applicant to put on further evidence in relation to this issue.
The applicant took issue with the fact that the Tribunal had found that it was implausible that the police would raid his factory and not search his home. He attempted to tell the court the reasons why this had occurred. He contended generally that the questions he was asked were too complicated, so that even if he had understood them he could not answer them. He claimed that he was not well educated and that the Tribunal was biased against him.
The evidence before the court is not such as to establish that the Tribunal had a closed mind or appeared to have a closed mind from the perspective of the appropriately informed lay observer. On the contrary it is apparent from the material before the court, in particular the Tribunal account of the hearing, that it properly raised matters of concern with the applicant and gave him an opportunity to comment. In particular, it put to the applicant matters of specific concern and explained that his credibility may form an important part of the Tribunal decision.
The Tribunal also explained initially that as it had not heard his evidence at the time it had not decided the matter and encouraged him to only answer the Tribunal questions to the extent that he could recollect. It is apparent from the Tribunal reasons for decision that it put dispositive issues to the applicant. It considered his explanations in the course of its findings and reasons. The evidence as to the conduct of the hearing and the Tribunal reasons is not such as to establish actual or apparent bias. I note in that respect that, as Moore J held in NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356 at [24], it is open to a Tribunal to engage in a fairly vigorous approach to testing an applicant’s claims and this falls short of establishing that a Tribunal approached its consideration of an applicant’s claims with a closed mind.
Moreover, the fact that the Tribunal raised with the applicant its concern about his credibility in a way that might be seen as expressing a preliminary view is not such as to establish either actual or apprehended bias (see in particular Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312 at [12] – [25]). Allegations of bias must be firmly established and the hypothetical fair-minded and informed person would be aware of the nature of the Tribunal’s review functions, the circumstances in which the applicant was invited to a hearing and that the Tribunal is not required uncritically to accept an applicant’s claims.
The applicant’s claim that the Tribunal asked him complicated questions that he was unable to answer is not made out on the material before the court. His claim in relation to his lack of reading and writing ability or education was raised with the Tribunal and considered by it. This is also not a case in which it can be said that the fact finding was conducted in a manner which could be described as “in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way” as considered in NADH at [115].
To the extent that the applicant seeks to reagitate the basis on which he is a refugee and relates his factual claims again, such claims do not establish jurisdictional error.
More generally, insofar as the applicant complained about the Tribunal making what he described as an “assumption” in concluding that he was not credible or truthful, credibility findings are a matter for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405). The Tribunal findings in this respect were open to it for the reasons that it gave on the material before it.
For the sake of completeness, I also note that there is nothing in the Tribunal reasons for decision or in its account of the hearing to suggest that the Tribunal fell into error in the manner in which it approached the issue of the applicant’s knowledge of Christianity. It was open to the Tribunal to explore the level of his knowledge and understanding and his commitment in the light of the claims that he made about his practice of Christianity (see SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [42] – [45]).
As no jurisdictional error has been established on the material before the Court, the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The applicant explained that he had no money now. That is not however a reason of itself for departing from the normal principle, 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. In the circumstances of this case I consider that the amount sought is appropriate, having regard to the nature of this and other similar matters.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 2 October 2009
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