SZMDA v Minister for Immigration & Anor
[2008] FMCA 961
•17 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 961 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming well founded fear of persecution as a member of an underground Catholic Church – credibility – whether the Tribunal denied procedural fairness to the applicant – whether Tribunal failed to comply with the requirements of Migration Act 1958 (Cth) s.424A(1) – whether the Tribunal failed to apply Migration Act 1958 s.91R(3) – no obligation to apply s.91R(3) – allegation of bias – no evidence of bias – no jurisdictional error. PRACTICE & PROCEDURE – Legal advice – privilege – where applicant chose to rely on written legal advice provided under the RRT Legal Advice Scheme – where applicant sought to tender the document – explanation of privilege – where applicant waived privilege after having been advised by the Court. |
| Federal Magistrates Act 1999 (Cth) s.3 Migration Act 1958 (Cth) ss.36, 91R, 422B, 424A, 424AA, 425, 474 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124 followed NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 followed Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 followed |
| Applicant: | SZMDA |
First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 858 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 June 2008 |
| Date of Last Submission: | 1 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the First Respondent: | Ms Anniwell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 858 of 2008
| SZMDA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 18th March 2008.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
By his application, filed on 10th April 2008, the Applicant seeks orders:
i)Setting aside the Tribunal’s decision; and
ii)Returning his case to the Tribunal for a further review
The Minister has filed a Response opposing the application on the basis that it has not raised an arguable case.
Background
The Applicant arrived in Australia on 16th August 2007 and applied for a Protection (Class XA) visa on 26th September 2007, claiming to fear persecution as a member of the Roman Catholic Underground Church. A delegate of the Minister refused to grant the application for a visa on 29th October 2007. The delegate found that the Applicant had made “general and unsubstantiated claims” and had provided no details regarding his church activities apart from claiming that he distributed Catholic propaganda. The delegate found that the Applicant did not face a real chance of Convention based persecutory harm if he returned to China[1].
[1] Court Book 50-51
Application for Review by the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 29th November 2007. He provided no further documentary evidence when he lodged his application.
The Tribunal wrote to the Applicant on 17th December 2007 and invited him to attend a hearing on 7th February 2008. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. He brought his Chinese passport to the hearing. He collected a copy of the CD of the hearing that day[2].
[2] A copy of the receipt signed by the applicant is at page 71 of the Court Book.
After the hearing, on 21st February 2008, the Applicant’s migration agent forwarded some documents and photographs to the Tribunal.
The Tribunal signed its decision on 5th March and handed the decision down on 18th March 2008. A copy of the Tribunal Decision Record can be found at pages 88 to 103 of the Court Book.
The Refugee Review Tribunal Decision
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
In its decision record, the Tribunal set out the Applicant’s claims and evidence, from the statutory declaration he submitted with his application for a protection visa, through his evidence at the hearing to the material his agent forwarded to the Tribunal on 21st February.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 98 to 103 of the Court Book. The Tribunal was satisfied that the Applicant was a citizen of The People’s Republic of China, based on his Chinese passport.
The Tribunal accepted from country information that members of unregistered churches may be subject to detention and mistreatment and China. It also accepted that the Applicant had some involvement with the Catholic religion in China and that he had been attending a Catholic church at Flemington, New South Wales, since had come to Australia.
However, the Tribunal did not accept that the Applicant was involved with the underground church in China, or that he was persecuted or targeted by the Chinese authorities. The Tribunal stated that:
The Tribunal did not find the applicant to be credible on some key aspects of his claims and the following matters lead the Tribunal to conclude that the applicant is not a reliable witness in relation to certain aspects of his claims…[3]
[3] Court Book at 99
The Tribunal then set out aspects of the Applicant’s evidence that caused it to doubt his credibility. The Tribunal then found:
Overall, the above matters lead the Tribunal to reject the applicant’s claims that he was persecuted by the Chinese authorities or that he will face persecution because of his religious faith, should he return to China…The Tribunal is sufficiently satisfied the applicant is not a witness of truth that to the extent the Tribunal has not expressly done so herein, it now rejects all the applicant’s claims to invoke protection obligations as false[4].
[4] Court Book at 101
The Tribunal noted that it had put its concerns about the credibility of the Applicant’s evidence to him at the hearing, and the Applicant asked to be able to address those concerns in writing. The Applicant, through his migration agent, forwarded documents to the Tribunal on
21st February 2008. However, the Tribunal expressed doubts about the Applicant’s documents, saying:
In light of the fundamental lack of credibility within the applicant’s evidence, the Tribunal is not satisfied that the statements relating to the applicant’s material claims in these documents are true[5].
[5] Ibid
The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for a Convention reason on his return to China and found that the Applicant does not satisfy the criterion set out in s.36(2) of the Migration Act 1958 for a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application seeking orders by way of certiorari and mandamus. He set out two grounds:
a)Jurisdictional error has been made. RRT took the cases which are against me. They did not take the successful case to support me.
b)Procedural Fairness has been denied, RRT did not give me letter to explain doubts.
The Applicant did not file any written outline of submissions or any amended application. He attended court and made an oral submission.
The Applicant said that the Tribunal expressed concern about the way he answered questions from the Tribunal Member and suspected that everything he said was a lie. He considered that the Tribunal had treated him in a discriminatory way.
Again, the Applicant said that the Tribunal had admitted that he was a Christian and therefore should not doubt that he would be persecuted on his return.
The Applicant then referred to a document that had been prepared by the lawyer on the RRT Legal Advice Panel who had advised him, saying that the document should have been filed at the Court Registry. He produced a document which turned out to be a letter of advice from the lawyer on the panel and sought to rely on it.
I explained to the Applicant that the document contained legal advice which was sent to him in confidence and, under the doctrine of legal professional privilege, he was entitled to keep the contents to himself. I also informed him that he had the right to waive that privilege if he wished, but if he chose to do so then the lawyer appearing for the Minister would be entitled to know what the document contained. After I was satisfied that the Applicant understood what I had explained to him, he insisted on tendering the document and relying on its contents. I indicated that I was prepared to allow the document to be used
as a written submission and a copy was prepared and shown to
Ms Anniwell, the solicitor who appeared for the Minister.
Ms Anniwell told the Court that she did not seek an adjournment in order to meet the arguments in the Applicant’s document and was prepared to make oral submissions to the Court. However, she sought leave to file a further written outline of submissions after the hearing to meet the arguments in the Applicant’s document, and I granted leave for a further submission to be filed and served by 1st July 2008.
The solicitors for the Minister filed a short supplementary outline of submissions on 1st July 2008.
Whilst this procedure is somewhat unusual, I consider that the Court should consider the circumstances of an unrepresented applicant who does not speak English and who comes from a country with a different court system than that which applies in common law countries. At the same time, the Court must extend procedural fairness to the Minister.
This procedure appears to be in accordance with the objects of the Federal Magistrates Act 1999 as set in sub-sections 3(a) and 3(b).
The Applicant’s advice was prepared by Marcelo Urquijo, solicitor, and contains, amongst other things, Mr Urquijo’s opinion of the Applicant’s prospects of success before the Court. With respect, that opinion is of no relevance to the Court’s consideration of the Applicant’s case. However, Mr Urquijo suggested to the Applicant a number of matters that he might wish to submit and the Applicant told the Court that he wished to do so.
A short summary of those matters follows:
a)That the Tribunal misunderstood the Applicant’s claim because in its decision it referred to his being involved in the distribution of secret Church material when in fact all that he ever said was that he distributed Church material in secret;
b)That the Tribunal ignored alternative claims based on the Applicant’s opposition to the Chinese political regime as reflected in his statement and his evidence before the Tribunal;
c)That the Tribunal misapplied the discretion about circumstances in which the RRT does not need to give a written summary of adverse matters in respect of which the Applicant is invited to provide comments, especially where the Tribunal asked the Applicant questions about his visa application to visit Australia and the information provided in his application for a protection visa (i.e. whether the Tribunal failed to comply with the provisions of s.424A(1) of the Migration Act);
d)That the Tribunal failed to apply the test of “well-founded fear” correctly, in that the Tribunal, having accepted that the Applicant had attended Church in Australia was potentially duty bound to consider that he might be persecuted in China if he were to return and decide to continue his participation in a non-sanctioned Catholic Church. In the alternative, the Tribunal ought to have dismissed the Applicant’s attendance at the Church in Australia as solely related to an attempt to influence the outcome of his protection visa application (i.e. whether the Tribunal failed to apply sub-section 91R(3) of the Migration Act); and
e)That the Court Book is incomplete and fails to reflect the totality of the transactions between the Tribunal and the Applicant.
The Applicant claimed that the Tribunal accepted that he was a Christian but did not accept that he was a member of an underground church. He complained that the Tribunal did not consider the documents that he had submitted.
The Applicant was accompanied by his son, an adult who is in Australia on a student visa. He said that his son wished to address the Court.
The Applicant’s son told the Court that he believed that the Tribunal was biased because it rejected the Applicant’s claim based on the way he answered the Tribunal Member’s questions. He said that his father naturally spoke that way, in a hesitant way with pauses.
I did not find the Applicant’s son’s contribution to be helpful. He did not attend the Tribunal hearing and he provided no evidence of the bias which he claimed had been exhibited by the Tribunal Member.
The solicitor for the Minister, Ms Anniwell, submitted that the Applicant’s grounds of review in his application were without merit. His first ground of review failed to disclose any jurisdictional error and merely sought merits review of the Tribunal’s decision, which is not permissible (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[6]).
[6] (1996) 185 CLR 259 at 272
As to the Applicant’s second ground in his application, alleging a denial of procedural fairness and a failure to comply with the requirements of s.424A(1) of the Migration Act, Ms Anniwell submitted that the application is governed by s.422B of the Migration Act, such that Division 4 of Part 7 exhaustively sets out the requirements of the natural justice hearing rule in relation to matters dealt with in that division and there was no indication that the Tribunal failed to fulfil the statutory requirements.
Ms Anniwell further submitted that there was no breach of s.424A(1) because the Tribunal had based its decision on information that the Applicant gave for the purposes of the application which was excluded by sub-section 424A(3)(b).
As to the matters relied on by the Applicant at the hearing, taken from Mr Urquijo’s advice, Ms Anniwell submitted that the Applicant did not claim, either before the Minister’s delegate or before the Tribunal, that he feared persecution if he returned to China because he had attended a Catholic church in Australia. She also submitted that the Tribunal did not misunderstand the Applicant’s claim, that he had never claimed that he feared persecution because he opposed the political regime in China, that there was no obligation under s.424A that the Tribunal had not met, and it had considered all aspects of the Applicant’s correspondence with the Tribunal.
Conclusions
It is quite clear that the primary reason that the Tribunal rejected the Applicant’s claim for refugee status was its adverse view of his credibility. The Tribunal did not accept that the Applicant was a credible on key aspects of his claims. The Tribunal found that there was a fundamental lack of credibility within the Applicant’s evidence[7].
[7] Court Book at 101
It is well accepted that the finding of credibility, which is essentially a finding as to whether the Applicant should be believed in his claim, is a function of the primary decision maker (in this case, the Refugee Review Tribunal) par excellence[8]. The Tribunal made this decision based on the Applicant’s evidence at the hearing. It was clearly open to the Tribunal to make this finding on this evidence.
[8] Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 per McHugh J at [67]
The Applicant’s first ground in his application claims that a jurisdictional error has been made, in that the Tribunal took the cases that were against the Applicant and did not take the successful cases to support him. If that is a claim of bias by the Tribunal, there is no evidence of it. If it is a claim that the Tribunal claimed to consider a relevant matter or an integer of the Applicant’s claim, no particulars are provided.
The Applicant’s first ground fails.
The second ground in the Applicant’s application claims a denial of procedural fairness and, apparently, a breach of s.424A of the Migration Act. The Minister has submitted, quite correctly, that the matter is covered by s.422B of the Migration Act. There appears to be no denial of procedural as set out in any of the sections of Division 4 of Part 7 of the Act. The Tribunal complied with s.425 by inviting him to a hearing and providing him with an interpreter to assist him in presenting his case. He has not provided any evidence that he was in any way hindered in giving evidence or presenting arguments in support of his case. The issues before the Tribunal were the same issues upon which the Minister’s delegate made the decision to refuse the application. There is no breach of s.425.
There is no breach of s.424A(1) of the Act. The Tribunal based its decision on evidence given by the Applicant to the Tribunal and on Independent Country Information, both of which are excluded by the operation of s.424A(3).
The Tribunal gave the Applicant an opportunity at the hearing to respond to or comment on the Tribunal’s concerns after the hearing. He provided a number of documents and some photographs to the Tribunal on 21st February 2008. The Tribunal considered this material in its decision[9].
[9] Court Book 98, 101
I am satisfied that the Tribunal complied with the requirements of s.424AA of the Act.
No breach of procedural fairness has been established and the Applicant’s second ground fails.
Turning now to the matters in the Applicant’s submission, the legal advice document, I note that he raised five issues.
The first issue is a claim that the Tribunal misunderstood the Applicant’s claim because in its decision it refers to his being involved in the distribution of “secret Church material” rather than distributing “Church material in secret”. This appears to me to be, in effect, a distinction without a difference and, in any event, is an error of fact that would not lead to any jurisdictional error.
However, Ms Anniwell submitted, correctly, that the Tribunal did consider that the Applicant “secretly distributed Catholic promotion materials to local residents”[10]. The Applicant had also referred in his statutory declaration participating in religious activities such as masses which were held in secret.
[10] Court Book 91
No jurisdictional error is made out in this claim.
The second issue raised is a claim that the Tribunal ignored alternative claims based on the Applicant’s opposition to the Chinese political regime as reflected in his statement and in his evidence before the
Tribunal. In his statement, the Applicant said:
I really hated the Communist dictatorship, which only benefits those corrupt officials at different government agencies but never cares about basic human rights of our ordinary people; and on the other hand, I hated myself.[11]
[11] Court Book 26
He also said:
I knew that those activities might be very dangers;[12] but I still took the risks; because I realised that no one would be very willing to take care of our ordinary people under the Communist dictatorship apart from the Lord.[13]
[12] sic
[13] Court Book 27
That was the extent of the Applicant’s comments in his statement about his opposition to the Chinese political regime. It is not nearly sufficient to represent a claim of a well founded fear of persecution for reason of political opinion.
I am not of the view that the Applicant gave any evidence to the Tribunal that indicated a fear of persecution for anything other than his religious belief.
No jurisdictional error is made out in this claim.
The third issue raised is a claim that the Tribunal in some way failed to comply with s.424A of the Migration Act. I have previously found that no breach of s.424A has been made out and so this claim fails.
The fourth issue is a claim that the Tribunal failed to apply the test of “well-founded fear” correctly. It was submitted that the Tribunal, having accepted that the Applicant attended church in Australia and had produced a letter from his priest corroborating his church attendance, was potentially duty bound to consider that he might be exposed to persecution on his return to China if he continued his participation in a non-sanctioned Catholic church. In the alternative, the Tribunal ought to have dismissed the Applicant’s attendance at church in Australia as solely related to an attempt to influence the outcome of his protection visa application (Migration Act, s.91R(3)).
The Applicant did not at any stage claim that he feared persecution if he returned to China because he had attended a Catholic church in Australia. As the Minister’s lawyers submitted, the Tribunal was not required to consider a claim that was not expressly made and did not clearly arise on the material before it (NAVK v Minister for Immigration and Multicultural and Indigenous Affairs[14]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[15]; and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[16]). I am satisfied that this is correct.
[14] [2005] FCAFC 124 at [31] and [38]
[15] (2004) 144 FCR 1; [2004] FCAFC 263 at [55]
[16] (2003) 75 ALD 630; [2003] FCAFC 184 at [45]
The Tribunal accepted that the Applicant had been attending a Catholic church at Flemington NSW since he had arrived in Australia. There was no obligation on the Tribunal to make any finding under s.91R(3). The Tribunal accepted that the Applicant had had some involvement with the Catholic religion in China[17], but it did not accept that the Applicant had been involved with the underground church in China. This is a significant difference. A person who had been involved with the officially sanctioned Church in China would have no ground to claim a fear of persecution on that basis, whether or not he or she had attended a church in Australia.
[17] Court Book 99
The Applicant’s fourth claim fails.
The fifth issue raised is that the Court Book is incomplete and therefore does not reflect the totality of the transactions between the Tribunal and the Applicant. The solicitor said in his advice:
In this respect I note that the letter from your priest given by you to the Tribunal at the conclusion of the hearing is not copied to the Court Book. In my opinion that letter is an important document and ought to have been included in the documents incorporated in the Court Book.
The first point to be made is that even if a document has not been included in the Court Book, that does not, of itself, constitute any jurisdictional error.
Second, there are two different letters from priests in the Court Book, both of which were submitted to the Tribunal. There is a letter from
Ze Wan, a priest, dated 20th February 2008, at page 73. There is also a letter from Fr. Paul McGee of the Columban Mission Institute, dated 23rd December 2007, at page 81. The Tribunal considered both and accepted that the Applicant had had some involvement with the Catholic Church in Australia. It did not give weight to the letter from Ze Wan[18].
[18] Court Book 98, 101
The Applicant has not made out any jurisdictional error. In my independent reading of the Tribunal decision I cannot discern any arguable jurisdictional error.
In the absence of a jurisdictional error the Tribunal decision is a privative clause decision (s.474(2)). It is not subject to orders in the nature of certiorari or mandamus (s.474(1)).
The application will be dismissed with costs.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 17 July 2008
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