SZMFK v Minister for Immigration
[2008] FMCA 1470
•27 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1470 |
| 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 fear of persecution because of Christian religion – credibility – whether Tribunal took account of an irrelevant consideration – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.91R(3) – exercise of discretion – certiorari and mandamus – jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R, 91X, 474 |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 |
| Applicant: | SZMFK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1135 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 July 2008 |
| Date of Last Submission: | 31 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2008 |
REPRESENTATION
| Applicant’s Counsel: | Mr Godwin |
| Solicitors for the Applicant: | Legal Aid Commission NSW |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the Refugee Review Tribunal signed on 11 March 2008 and handed down on 3 April 2008.
That there be an order in the nature of mandamus remitting the application of the applicant for review of a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa to the second respondent Refugee Review Tribunal for determination according to law.
That the first respondent is to pay the applicant’s costs fixed in the sum of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1135 of 2008
| SZMFK |
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 3rd April 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
By her amended application, filed in Court on the date of the hearing, with leave, the applicant seeks the following orders:
(1)a writ of certiorari to quash the Tribunal decision;
(2)a writ of prohibition directed to the first respondent, the Minister for Immigration and Citizenship, prohibiting the Minister from acting upon or giving effect to or proceeding further upon the Tribunal’s decision; and
(3)a writ of mandamus to compel the Tribunal to reconsider the application according to law.
The applicant relies on these grounds:
(1)
That the Tribunal took account of irrelevant considerations, in that it based its decision and adverse credibility findings on the applicant’s response to questions about Catholicism.
The applicant did not claim that she was a Catholic in China.
Her claim was that she was a practising Christian in China but did not belong to any Christian denomination.
(2)That the decision of the second respondent (the Tribunal) did not disregard the knowledge of Christianity which the applicant acquired in Australia as was required by s. 91R (3) of the Migration Act.
Background
The applicant arrived in Australia on 7th September 2007 and applied for a Protection (Class XA) visa on 18th September. In a statement accompanying her application, the applicant claimed to be a person who believes in Jesus who was baptised in 1996 and regularly attended gatherings of an underground church.
A delegate of the Minister wrote to the applicant on 9th October 2007, inviting her to attend an interview to take place on the 23rd October. She apparently attended that interview. The delegate refused her application for a visa on 25th October 2007.
Application for Review by the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 23rd November 2007. The Tribunal wrote to her on 21st December 2007, inviting her to attend a hearing on
27th February 2008.
The applicant attended the hearing and gave evidence with the assistance of a Mandarin interpreter. She produced some photographs of herself to the Tribunal, along with a statement from one Roddy Wong, a church elder at the Chinese Seventh Day Adventist Church in Strathfield, New South Wales, confirming that she had been attending the church for the previous five months. The applicant also produced her Chinese passport.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 11th March 2008 and handed the decision down on 3rd April. The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa.
A copy of the Tribunal’s Decision Record can be found at pages 78 to 91 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal was satisfied that the applicant was a citizen of China and assessed her against China as her country of nationality. However, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The Tribunal noted the applicant’s claims to have had difficulty remembering matters, but was satisfied that the applicant did not suffer from memory condition that the Tribunal needed to take into account.
The Tribunal noted the applicant’s claim to fear persecution for the reason of her Christian beliefs, but found:
In the course of the hearing and despite repeated questions, the applicant was not able to provide a coherent and informed account of important matters relating to Christianity.[1]
[1] Court Book 86
The Tribunal formed an adverse view of the applicant’s credibility, saying:
The Tribunal understands that the applicant comes from China, where there are serious human rights issues such as one’s rights to freely practise Christianity (although there are registered churches). However for reasons outlined below and in consideration of the evidence as a whole, the Tribunal is satisfied that the evidentiary problems are substantial and suggest fabrication and adverse credibility. The Tribunal got an impression that the applicant had rehearsed the evidence and that she only wanted to tell the Tribunal what she had rehearsed rather than answer questions by the Tribunal.[2]
[2] Court Book 87
The Tribunal formed the view that the applicant’s knowledge of Christian doctrines and principles was incommensurate with her claimed underground Christian-related activities. It set out some seven reasons as to why it formed that the view.
The Tribunal stated:
Throughout the hearing, the Tribunal discussed with the applicant concerns about her knowledge relating to Christianity and put to her that her knowledge appeared to be limited, raising doubts about the veracity of her claims and her credibility generally.
The Tribunal invited the applicant to comment on and/or respond to that information. The Tribunal stated that she is a Christian but she does not know who the Pope (is). She said she does know who Jesus and people are in the Bible. The Tribunal is not persuaded or convinced by the applicant’s explanations, comments and/or responses.[3]
[3] Court Book 89
The Tribunal did not accept that the applicant was ever a member of any underground church in China, or that she ever participated in any underground church activities. Nor, too, did the Tribunal accept that the applicant was ever arrested or detained by the PSB.
The Tribunal then referred to a letter that the applicant had produced from Pastor Chong of the Chinese Seventh Day Adventist Church, who had stated that the applicant had gone through “hard times” before she left China. The Tribunal noted that the applicant had been the source of that information and did not give weight to Pastor Chong’s comments.
The Tribunal also considered eight photographs and a letter in support of her claims about her Christian activities in Australia and, whilst it was satisfied that the applicant had engaged in Christian-related activities in Australia, was not satisfied that the applicant had engaged in those activities in Australia otherwise than for the purpose of strengthening her application for a protection visa. The Tribunal disregarded those activities under s. 91R (3) of the Act. The Tribunal went on to find:
In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant would not engage in underground church activities in China, not out of fear of being harmed but because of lack of genuine interest in the faith.[4]
[4] Court Book 90
The Tribunal was not satisfied that the applicant was or would be perceived to be a member of the underground church and did not accept that the applicant had a well-founded fear of persecution.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant the applicant a Protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings in this Court on 6th May 2008 by filing an application and an affidavit in support. Her counsel filed an amended application in Court on 15th July 2008.
The Applicant’s Submissions
Counsel for the applicant, Mr Godwin, submitted that there was no reference in the delegate’s decision to any claim by the applicant that she was a Catholic or that the house church to which she said she belonged was an underground Catholic Church.
The first ground in the amended application for judicial review is that the Tribunal took into account an irrelevant consideration in that it based its decision and credibility finding on the fact that the applicant claimed to be a Catholic. Prior to the hearing the applicant had not at any stage claimed to have been a Catholic.
The applicant’s solicitor affirmed an affidavit on 12th June 2008 annexing a transcript of the Tribunal hearing that was conducted on 27th February 2008. The applicant relies on the transcript.
Mr Godwin referred the Court to various parts of the transcript, beginning with applicant’s initial agreement that she was a Catholic[5] although he submitted that the applicant’s response to the question “What is Catholicism?” did not indicate any understanding of the meaning of that term. The applicant’s reply was:
Because for Catholics, our God is actually up upon us.[6]
[5] at page 19 of the Transcript
[6] Ibid
Mr Godwin submitted that it was obvious from the transcript that the applicant had no understanding of what a “denomination” was when asked by the Tribunal “What denomination was the Church?”
The applicant replied “I cannot understand what you mean by that? That’s Christianity all the same.” When asked by the Tribunal “Do you know what ‘denomination’ means, (applicant[7])?” the applicant replied:
That means our original belief[8]
[7] The Tribunal addressed the applicant by her name but the Court does not publish the applicant’s name in order to comply with s. 91X of the Migration Act.
[8] Transcript page 12
The applicant had produced a certificate from a Pastor of the Seventh Day Adventist Church. The Tribunal asked the applicant:
What is also interesting I note is that you say you’re a Catholic. The information that you provided me in relation to your Christian activities in Australia relate(s) to your involvement in the Seventh Day Adventist Church, which is not the Catholic Church. Why would a Catholic go to the Chinese Seventh Day Adventist Church?[9]
[9] Transcript 23
The applicant replied:
I want to correct what I previously said in front of you. I am a Christian. That’s the reason why when you asked me about the pope or that sort of stuff I had no idea whatsoever. I am believing in Christianity.[10]
[10] Ibid
Mr Godwin submitted it was clear that, when the transcript is read as a whole, it is clear that the applicant was not making any claim to have been a Catholic. However, the Tribunal used the applicant’s lack of knowledge of Catholicism in dismissing her application:
The Tribunal is of the view that the applicant’s responses indicate a lack of understanding of Catholicism and Christianity, raising doubts about the veracity of the claims and her credibility generally.[11]
[11] Court Book 87
Mr Godwin further submitted that the Tribunal also determined the applicant’s claim on the basis that her knowledge of the underground Church in China should be assessed in relation to the underground Catholic[12] Church. The Tribunal relied upon the applicant’s lack of knowledge in relation to matters concerning the difference between the underground church and the official church:
The applicant said she was a Catholic. The underground Catholic Church follows the Vatican rather than the official church, which does not recognize the Pope as its head and which has departed from Vatican teachings on a number of issues; it does not recognize the divinity of Christ or the Assumption of the Virgin Mary, both of which are fundamental to Roman Catholic beliefs.[13]
[12] emphasis added
[13] Court Book 89
Mr Godwin referred the Court to the decision of the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[14] where Black CJ, French and Selway JJ said at [63]:
It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
[14] (2004) 144 FCR 1; [2004] FCAFC 263
Mr Godwin submitted that this is such a case.
In respect of the applicant’s second ground, that the Tribunal’s decision did not disregard the knowledge of Christianity which the applicant had acquired in Australia as was required by s. 91R(3) of the Migration Act, Mr Godwin submitted that the Tribunal fell into error when it made this finding:
In consideration of the evidence as a whole and given the credibility concerns, whilst the Tribunal is satisfied that the applicant has engaged in Christian-related activities in Australia, which explains the applicant’s knowledge of Christianity (albeit limited) such as aspects of baptism, the Tribunal is not satisfied that the applicant has engaged in those activities in Australia otherwise than for the purpose of strengthening her application for a protection visa. Given those considerations and pursuant to s. 91R (3), the Tribunal disregards those activities.[15]
[15] Court Book 89-90
Mr Godwin referred the Court to the decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship[16] to submit that the Tribunal did not disregard the applicant’s knowledge acquired in Australia when making its findings about the applicant’s knowledge and understanding of baptism.[17]
[16] [2008] FCAFC 105
[17] Court Book 88
Mr Godwin referred the Court to the decision in SZJGV where Spender, Edmonds and Tracey JJ held at [22]:
We accept the Minister’s submission that s. 91R(3) can only, sensibly, be applied once primary findings of fact have been made. If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) may have application. If it has occurred then consideration must be given to the requirements of s. 91R(3). We do not understand that appellants to contend otherwise. Their submissions do, however, overreach when they assert that, if an applicant seeks to rely on his or her conduct in Australia and the Tribunal accepts that such conduct has occurred, the conduct cannot be taken into account ‘at all’ in deciding the application. As the Minister points out, the lodging of an application for a protection visa in which particular claims are made is a relevant matter which is properly to be brought into account. Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s. 91R(3) is engaged. Once engaged, s. 91R(3) precludes the decision maker from having regard to ‘any conduct’ engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s. 91R(3).
Their Honours further held at [30]:
Had the Tribunal made its findings in relation to the appellant’s conduct in Australia, then applied s. 91R(3) and thereafter paid no regard to that conduct in its reasons, it would not have fallen into error. This, however, is not what it did. It expressly relied on conduct in Australia in determining that the appellant was not an active Christian and would not, therefore, face a real chance of persecution should she return to China. Only after these findings had been made was the relevance of s. 91R(3) recognised and the statement made that the Tribunal disregarded the applicant’s conduct in Australia. The Tribunal did not, however, then return to the earlier analysis and consider whether or not it should be reviewed, given that certain evidence, originally relied on, was no longer to be taken into account.
Mr Godwin submitted that the Tribunal’s reasoning in this case is indistinguishable from that found to be defective by the Full Court in SZJGV. In the present case, he submits that the Tribunal considered the factual issue of whether the applicant was a Christian in China before coming to Australia by reference to evidence indicating her level of knowledge required in Australia. Only then did it refer to s. 91R(3) and purported to disregard the conduct, but it did not return to the earlier analysis and consider whether or not it should be reviewed, given that evidence originally relied on was no longer to be taken into account. Thus, he submitted, the Tribunal has contravened s.91R(3).
The First Respondent’s Submissions
Counsel for the Minister, Ms McWilliam, submitted that, in respect of the applicant’s first ground, the Tribunal did not misunderstand the applicant’s claim. The applicant twice claimed to be a Catholic[18] and, Ms McWilliam submitted, only changed her account when it was clear that she could not answer the Tribunal’s questions about Catholicism and when the Tribunal Member pointed out that the evidence she had provided related to her involvement with a Seventh Day Adventist Church.
[18] Court Book 19 and 21
However, Ms McWilliam submitted that even if the applicant’s complaint that she was not claiming to be a Catholic were to be accepted, in order for her to succeed she would have to show that the Tribunal failed to deal with her claim to be a Christian. The Transcript and the Tribunal Decision Record both demonstrate that the Tribunal did address that claim.
Further, it was submitted that the Tribunal’s adverse credibility findings about the applicant were independent of any finding about the claim that the applicant was a Catholic.
Ms McWilliam that the applicant’s first ground is really a complaint about the merits of the Tribunal decision and that the Tribunal did not consider an irrelevant matter.
In a later submission, directed to the applicant’s second ground, which was only added at the eleventh hour, Ms McWilliam responded to the claim that the Tribunal breached s. 91R(3) by submitting that:
(a)The Tribunal did not take the applicant’s conduct in Australia into account.
(b)If the Court were to find to the contrary, the court has a residual discretion which it should refuse to exercise as there has been no practical injustice and the outcome of the decision could (or would?) not have been different.
Ms McWilliam submitted that the applicant’s conduct in Australia was her engagement in Christian activities and any knowledge derived from her engagement in those activities is not ‘conduct’ within the meaning of s. 91R(3). The Tribunal’s reference to the applicant’s limited knowledge of Christianity in making an adverse credibility finding was not, she submitted, a breach of s. 91R(3), despite the fact that the applicant’s knowledge might have been derived from activities undertaken in Australia.
Therefore, it is submitted that SZJGV v Minister for Immigration and Citizenship has no application to the present case.
Ms McWilliam’s second point is that even if the Court were to find that the Tribunal had breached s. 91R(3), the Court should refuse to exercise its discretion to remit the matter as, following the principles articulated in Re Refugee Review Tribunal; Ex Parte Aala[19], the breach could not have affected the outcome of the Tribunal’s decision.
[19] (2000) 204 CLR 82; [2000] HCA 57
Conclusions
The applicant’s Ground 1 claims that the Tribunal fell into error by taking account of irrelevant considerations, namely that it based its decision and its adverse credibility finding on a mistaken belief that the applicant was claiming to be a Catholic, which was not a part of the applicant’s claim at all.
A fair reading of the Transcript of the Tribunal hearing shows that on two occasions the applicant conceded that she was a Catholic, but it is equally clear that the applicant did not have any idea about what a Catholic is. She was clearly confused by the Tribunal’s questions.
The applicant had previously claimed to be a Christian and the Tribunal’s questions about being a Catholic came entirely from the Tribunal.
On pages 19, 20 and 21 of the Transcript there appear, amongst other things, a farcical exchange where the applicant manages to confuse the Pope with President George W. Bush:
TRIBUNAL: Are you a Catholic, (applicant)?
APPLICANT: Yes. Sorry, could you please wait. Now I understand about Catholic.
TRIBUNAL: You’re a Catholic.
APPLICANT: Yes.
TRIBUNAL: What is Catholicism?
APPLICANT: Because for Catholics, our God is actually up upon us.
TRIBUNAL: Sorry?
APPLICANT: Our god is actually up upon us.
TRIBUNAL: I don’t understand you, sorry.
APPLICANT: Our-
TRIBUNAL: Upper point, what that does that mean?
INTERPRETER: She said –
TRIBUNAL: God is above us?
APPLICANT: Yes, above us, sorry.
TRIBUNAL: You’ve been a Catholic for how long?
APPLICANT: Ever since the baptism in 1996.
TRIBUNAL: (Applicant), who is the international head of the Catholic Church?
APPLICANT: You mean internationally?
TRIBUNAL: Yes. He’s a very important person for the Catholic Church, and he’s very important internationally.
APPLICANT: Yes, I know. Even George W. Bush in the US also believe in the Catholic Church.
TRIBUNAL: I’m not talking about Mr Bush. I’m not talking the president of the United States. I’m not talking about him. He is important, but he’s not the international head of the Catholic Church. He’s the president of the United States.
APPLICANT: Sorry, is it a character in the Bible?
TRIBUNAL: I’m asking a very simple question.
APPLICANT: I don’t know.
TRIBUNAL: What’s the Vatican?
APPLICANT: Previously you’re talking about Catholic. However I am talking about Christianity. I am a Christian.
TRIBUNAL: But you also said you were a Catholic. That’s what you told me.
APPLICANT: I am a Christianity, that’s Christian. I believe in Jesus and God.
TRIBUNAL: Hang on a minute. (Applicant), I asked you about five minutes ago are you a Catholic. You said yes.
APPLICANT: But previously it rang a bell in my mind, even though I knew that the Catholic and the Christian, there are some differences there.
TRIBUNAL: Catholics are Christians. (Applicant), are you a Catholic or not, and I’m not going to ask it again.
APPLICANT: I am. That’s the reason why when you mentioned that, it rang a bell to me.
TRIBUNAL: Why do I have to mention it for it to ring a bell? I asked you what denomination are you? You said Christian. (Applicant), do you know what the Vatican is? If you’re a Catholic, you would know that.
APPLICANT: I don’t know.
TRIBUNAL: Who’s the pope?
APPLICANT: I don’t know either.
TRIBUNAL: (Applicant), I need to explain something to you. In my view, but I’m going to think a lot more, your knowledge of facts relating to Christianity is very limited – please wait – which raises serious doubts about your claim that you have been a Christian or a Catholic. It also raises doubts about your credibility. Would you like to comment and respond?
APPLICANT: But I am a Christian. But because you mentioned Catholic, and it’s very familiar with me. I don’t know who’s the pope, but I do know Jesus and I do know people in the Bible.[20]
Later in the hearing the applicant mentioned that many people in China wanted to believe in Buddhism and in capitalism. The Tribunal followed that subject up:
TRIBUNAL: Buddhism people practise Buddhism in China. They can practise Buddhism in Australia. There are a lot of Buddhists in Australia.
APPLICANT: But I don’t. But I only believe in Jesus.[21]
[20] Transcript 19 – 21.
[21] Transcript 24
In my view, the applicant was maintaining that she was a Christian and became confused by the Tribunal’s insistence on questioning her about Catholicism. Clearly, the applicant did not know the first thing about Catholicism. She had never claimed to be a Catholic prior to the hearing. On a fair reading of the transcript, the applicant appeared to think that the Tribunal was using the term ‘Catholic’ as some form of synonym for ‘Christian’. The Tribunal’s rejection of the applicant’s claims appears to have been based largely if not entirely on her lack of knowledge of the Catholic faith, of which she had never claimed to be a member.
In my view, the Tribunal based its decision on an irrelevant consideration and thereby fell into jurisdictional error.
Turning to the applicant’s Ground 2, a claim that the Tribunal erred by failing to comply with s. 91R(3), the passage in the Decision Record about which the applicant claims refers to the Tribunal’s satisfaction that the applicant had engaged in Christian-related activities in Australia. The relevant passage is:
In consideration of the evidence as a whole and given the credibility concerns, whilst the Tribunal is satisfied that the applicant has engaged in Christian-related activities in Australia, which explains the applicant’s knowledge of Christianity (albeit limited) such as aspects of baptism, the Tribunal is not satisfied that the applicant has engaged in those activities in Australia otherwise than for the purpose of strengthening her application for a protection visa.[22]
[22] Court Book 89 - 90
Ms McWilliam submits that SZJGV can be distinguished because the Tribunal in this case is only referring to the applicant’s knowledge as opposed to her conduct, but I am not persuaded that this argument holds water. True it is that s. 91R (3) can only sensibly be applied once primary findings of fact have been made (SZJGV at [22]).
Here, however, the Tribunal has gone further, by speculating on the source of the applicant’s knowledge of matters related to Christianity as being the applicant’s attendance at the Chinese Seventh Day Adventist Church.
In my view, the Tribunal fell into error by taking that extra step, a step too far. Once the Tribunal had made the primary finding of fact and then decided that the applicant’s church attendance in Australia was for the purpose of strengthening her refugee claim, the Tribunal was then obliged under s. 91R(3) to disregard that evidence for all purposes.
I am satisfied that jurisdictional error has been made out. As I have already found that the Tribunal fell into jurisdictional error by taking an irrelevant consideration into account, the Minister’s submission that the jurisdictional error in respect of a breach of s. 91R(3) is not such as to warrant the matter being remitted does not apply.
Accordingly, the application will be granted and orders in the nature of certiorari and mandamus will issue. The applicant is represented and so the question of costs will arise.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 October 2008
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