SZMFU v Minister for Immigration
[2008] FMCA 1537
•7 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1537 |
| MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal – applicant a citizen of China claiming fear of persecution for reason of religious beliefs – member of underground church – the “Shouters” – no reviewable error. |
| Migration Act 1958 (Cth) ss.424A, 424AA, 425, 474 |
| Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZMFU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1188 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 November 2008 |
| Date of Last Submission: | 7 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1188 of 2008
| SZMFU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People's Republic of China. He asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal handed down a decision on 22nd April 2008, affirming a decision by a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant asks the Court to set aside the Tribunal decision. He also asks the Court to remit his application to the Refugee Review Tribunal for determination according to law. In his application he has set out a number of grounds, and provided some particulars of those grounds.
Background
The background of this matter is that the Applicant arrived in Australia on 24th October 2007, and applied for a Protection (Class XA) visa that same day. A delegate of the Minister for Immigration & Citizenship refused the application for a visa on 3rd January 2008.
The Applicant submitted his application for a visa, claiming that he had been involved in underground church activities. He claimed that he had been arrested and detained for a year because of his activities in an underground church in China. He claimed to be a member of a Christian church, which is known in China as the "Shouters". The delegate, when considering and refusing his application, noted that the Applicant had made a series of claims, which lack a significant amount of detail, and were not supported by available country information. The delegate was not satisfied about the Applicant's credibility as far as his claims were concerned.[1]
[1] See Court Book at pages 48-49.
Application to the Refugee Review Tribunal
When his application for a visa was refused, the Applicant then applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received his application on 14th January 2008. He asked, in his application, for correspondence to be sent to him at his home address. In both his application for a protection visa and his application to the Refugee Review Tribunal, the Applicant indicated that he would need assistance with an interpreter, and in each case, he nominated the Mandarin language.[2]
[2] See Court Book at page 52
The Tribunal wrote to the Applicant on 31st January 2008 inviting him to attend a hearing on 5th March 2008. The Tribunal noted his request for an interpreter in the Mandarin language, and an interpreter in that language was available at the hearing.[3]
[3] See Court Book at page 59
The Applicant gave evidence at the hearing with the assistance of the interpreter. He also asked the Tribunal to take evidence from a person called William Boh, for evidence about the Applicant's church activities in Australia. The Tribunal contacted Mr Boh by telephone at the hearing. The Tribunal records that Mr Boh said that he did not know the Applicant personally, but that he did not have his list of members in front of him.[4]
[4] See Court Book at page 75
The Tribunal’s Decision
The Tribunal signed its decision on 3rd April 2008, and handed that decision down on 22nd April 2008. In the Tribunal decision records, which can be found in the Court Book at pages 65 through to 81, the Tribunal set out the information on the Departmental file, including the Applicant's claim for a protection visa. It also considered and set out, a summary in some detail of the Applicant's evidence at the Tribunal hearing.
The Tribunal recorded evidence of the telephone conversation with Mr Boh at the hearing, and then set out some background information about the Christian group known as "The Shouters". That group is illegal in China, and the Tribunal noted that there have been reports of arrests of group members for over 20 years.
The Tribunal’s Findings and Reasons
In its findings and reasons, the Tribunal found that the Applicant was a citizen of the People's Republic of China, based on the certified copy of the Applicant's passport, issued by the People's Republic of China. The Tribunal noted the Applicant's claims in this way:
The applicant claims that he fears persecution in China because of his religious belief. He claims that he is a member of the Local Church, called “Shouters” and a Christian who will face persecution if he returns to China because of his membership of the “Shouter group”. He also claims that he will face persecution in China because of his membership of an underground church in China.[5]
[5] See Court Book at page 78
However, the Tribunal formed an adverse view of the Applicant's credibility. The Tribunal had this to say:
The Tribunal is of the view that the applicant is not a witness of truth and for the reasons that follow the Tribunal does not accept that the applicant is a member of the Local Church in China or an underground Christian group in China, attended Local Church (“Shouters”) gatherings in China or gatherings at an underground church, was detained and beaten for being a member of the Local Church or an underground church. Further, the Tribunal does not accept that the applicant is, or was, a Christian.”[6]
[6] See Court Book at page 79.
The Tribunal then at pages 79 and 80, set out why it formed this adverse view of his credibility. The Tribunal also noted that, whilst the Applicant claimed after an incident in September 2002, he wanted to leave the country; his passport indicated that he was granted a visitor's visa to Chile on 26 May 2007 and left China on 26 July 2007. The Tribunal had this to say about the Applicant's delay in leaving China:
If the applicant feared persecution in China because of the events which he claims occurred, it is difficult to believe that he would wait over four and a half years to leave the country. His claim that it was very difficult for someone like him to leave may be plausible over a short period, but the Tribunal does not accept that it would take over four and a half years if he feared persecution because of his religious beliefs.
The Tribunal notes that even after 26 May 2007 he had both a passport and visa to leave but it took him over two months to leave. The Tribunal is of the view if he feared persecution because of his religious belief that he would have left as soon as he could, rather than waiting over two months to leave the country.”[7]
[7] See Court Book at page 80.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason if he were to return to China. It was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal found the Applicant does not satisfy the criteria set out in sub-section 36(2)(a) for a protection visa.
Application for Judicial Review
The Applicant commenced in this Court for judicial review by filing an application and an affidavit in support on 12th May 2008. He filed a further document in Court on 1st September 2008. That document was headed "Additional Particulars", and provided two additional particulars of his claims.
Applicant’s Grounds of Application
In his application, the Applicant sets out six grounds:
a)The Tribunal failed to act judicially and afford procedural fairness.
b)The Tribunal failed to comply with s.424A of the Act.
c)The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant had a well-founded fear of persecution for a Convention reason on the grounds of religion;
d)The Tribunal did not take into account certain relevant considerations or integers central to the Applicant's claims.
e)The Tribunal failed to consider the Applicant's claims.
f)The Tribunal failed to investigate the Applicant's genuine claims.
The Applicant set out five particulars of those claims in his application:
i)The Applicant complained about the Tribunal's use of country information.
ii)The Applicant complained that the Tribunal did not investigate his genuine Christian claims. The Applicant asserted that he believed in Jesus and was a genuine Christian. He also stated the "Shouters" is naturally a Christian group.
iii)The Applicant complained the Tribunal did not centralise his claim and correctly identify his well-founded fears of persecution on the grounds of religion if returned to China.
iv)The Applicant referred to a misunderstanding or something improperly interpreted between the Tribunal and himself, regarding his address in China.
v)The Applicant complained that the questions that the Tribunal raised were not consistent. On one hand, the Tribunal referred to the Applicant's claim that he was arrested and detained by officials from local government and not the police, and later referred to a question where the Tribunal said “…the police walked in”.
In his Additional Particulars, the Applicant claims:
i)The Tribunal was preoccupied and did not consider his genuine claim fairly.
ii)The Tribunal did not consider his new information about his persecution, and did not give him a chance to explain it.
Submissions
The Applicant did not file a written outline of submissions, but he was offered the opportunity to make oral submissions to the Court. The Applicant had asked the Court to provide an interpreter in the Fuqing dialect, and the proceedings had been adjourned until today, so that an interpreter qualified in that particular Chinese dialect could attend. The Applicant said that all he wanted to say was in writing and did not add anything further.
In reply to submissions from Mr Reilly of Counsel for the Minister, the Applicant reiterated that he was a Christian, and claimed that his mother had been denied citizenship by the Chinese government. His mother had organised the church in China.
The reason why the Tribunal did not accept the Applicant's claims, was that he did not find the Applicant's claims to be credible. The Tribunal found that he was not a witness of truth. It set out its reasons for doing so. Credibility findings are findings of fact (See Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[8] per McHugh J at [67]). I am satisfied that the Tribunal's findings were in fact open to it on the basis of the evidence before the Tribunal.
[8] (2000) 168 ALR 407; [2000] HCA 1
It is well established, as Mr Reilly of Counsel for the Minister, submitted, that the Court cannot review the merits of the Tribunal's decision (See Minister for Immigration & Ethnic Affairs v Wu Shan Liang[9] at 272). There is no error of law in the Tribunal making a wrong finding of act (See Abebe v Commonwealth[10] at [137]).
[9] (1996) 185 CLR 259
[10] (1999) 197 CLR 510
Ground 1
Dealing with the six grounds, the Applicant's first ground claims that the Tribunal failed to act judicially and afford procedural fairness. There is no particularisation of that claim, and it is difficult, if not impossible, to identify how the Tribunal failed to provide procedural fairness.
The Tribunal wrote to the Applicant and invited him to attend the hearing. He attended the hearing. He asked for an interpreter in the Mandarin language. The Tribunal provided him with an interpreter in that language. The Applicant gave evidence in that language. The Tribunal, to my view, has complied with s.425 of the Act, and the invitation to hearing sent to the Applicant on 31st January 2008, sets out the time, date and place that the Applicant was required to attend the hearing. It was sent to him at the address that he gave in his application for review as his address for correspondence, and sets out the effect of s.426A of the Migration Act. It appears to me that the invitation to hearing complies with the requirements of s.425A of the Migration Act.
The Applicant makes one claim about a misunderstanding, which may have been a misinterpretation, but provides no evidence of that and, in any event, that would not be sufficient, even if it were established to make out a failure to provide procedural fairness. Ground one fails.
Ground 2
There can, of course, be a failure to provide procedural fairness, if the Tribunal fails to comply with s.424A of the Migration Act. The Applicant complains that the Tribunal did so; however, he provides no details of any information upon which the Tribunal relied as a reason or a part of the reason for affirming the delegate's decision, and which should have been put to him for comment in writing.
The information upon which the Tribunal relied was either information provided by the Applicant himself, or, Independent Country Information set out at pages 75 through to 78 in the Court Book, about the group known as the "Shouters". Independent country information is excluded from the operation of subsection 424A(1) by the operation of subsection 424A(3)(a).
In any event, the Tribunal noted that it had repeated its concerns, which had previously been raised, about how the Applicant was able to exit China if he had been detained and was a person of concern, or how he was able to obtain a legal passport, why it took him over four and a half years to leave China after he said that he wanted to leave, and why it took him over two months to leave China after he obtained a visa to go to Chile.[11] The Tribunal noted that the Applicant said that he would respond in writing.
[11] See Court Book at page 74
This would certainly appear to be an effort by the Tribunal to comply with the requirements of s.424AA of the Migration Act, if that were necessary. I am not of the belief that it was necessary. In any event, the Tribunal did give the Applicant the opportunity to provide further information and made this comment:
No further information was received from the applicant. No written response to the invitation to comment on the concerns the Tribunal had raised at he hearing was received from the applicant.[12]
I am satisfied that there is no breach of s.424A of the Migration Act, and the Applicant's ground two fails.
[12] See Court Book at page 75
Ground 3
The Applicant's third ground claims that the Tribunal misunderstood and failed to apply the correct test, in order to be satisfied as to whether he had a well-founded fear of persecution for the Convention reason of religion. The Tribunal set out at pages 67 and 68 of the Court Book, in the preamble to its decision, its understanding of the meaning of persecution under the Migration Act, and in my view, no error is displayed.
The Tribunal was clearly aware of the Applicant's claims to fear persecution on the grounds of his membership of the local church known as the "Shouters" and of his membership of an underground church. That was the issue that the Tribunal discusses at pages 78, 79, 80 and 81 of the Court Book in its findings and reasons. Ground three fails.
Ground 4
The Applicant's ground four claims the Tribunal did not take into account certain relevant considerations or integers central to the Applicant's claims. The particulars refer to that ground, but, in effect, contain nothing more than a complaint about the Tribunal's use of Independent Country Information when conducting research about the "Shouters", assert that the Applicant believes in Jesus and is a genuine Christian, assert that the "Shouters" are a Christian group and assert that the Tribunal did not centralise the Applicant's claim or identify his well-founded fears of persecution on the grounds of religion. A fair reading of the Tribunal decision indicates that that claim has not been made out.
Ground 5
Ground five is an unparticularised, wide-ranging assertion that the Tribunal failed to consider the Applicant's claims. A fair reading of the Tribunal's decision record shows that it did consider his claims.
Ground 6
The sixth ground claims that the Tribunal failed to investigate the Applicant's genuine claims. It is well-established that whilst the Tribunal has the power to seek further information under s.424 of the Migration Act, it has, as a general rule, no obligation to undertake its own investigations. There is certainly no wide-ranging obligation for the Tribunal to undertake its own course of investigations, in order to make the Applicant's case for him or her.
Particulars
The particulars provided may be seen as providing some sort of an additional ground. Ground four complains of a misunderstanding of issues or something improperly interpreted. In order to establish a failure of interpretation, the Applicant would need to provide evidence which he has not done. Even so, the point that the Applicant makes about a claimed misunderstanding relating to his address in the People's Republic of China and as to when he lived in the home of his wife's parents, is not a matter upon which the Tribunal's decision turned, and was certainly not information that formed a reason or part of the reason for the Tribunal affirming the decision under review.
The fifth ground in the application complains that the questions the Tribunal raised are not consistent. There is an allegation of a confusion in the mind of the Tribunal as to whether the Applicant was arrested and detained by officials from local government and not the police, or the police. That, of course, is no more than a mere cavilling of the facts. Nothing turns on that point. Even if there was a factual error, it is well‑established by the High Court in the decision of Abebe, to which I have previously referred, that there is no error of law in the Tribunal making a wrong finding of fact.
The Applicant filed in Court, on a previous occasion, the document headed "Additional Particulars". Particular one claims:
The Tribunal was preoccupied and did not consider my genuine claim fairly.
There is no evidence that the Tribunal was preoccupied, or that the Tribunal Member's mind was elsewhere. If the second part is namely that the Tribunal did not consider the Applicant's genuine claim fairly, is an allegation of bad faith or an apprehension of bias, there is no evidence of that. It may well be that the Applicant does not like the adverse decision of the Tribunal, but an adverse decision is not, of course, of itself any indication of any form of bias, apprehended or actual. There is nothing to suggest that a hypothetical lay observer, properly informed, would have formed any view that the Tribunal's mind was already made up, incapable of being open to persuasion. There is just no evidence of bias and if that is a ground, then it fails.
The Applicant's other additional particular says:
The Tribunal did not consider my new information about my persecution and did not give me a chance to explain it.
There was no new information. The Applicant did not provide any new information. The Tribunal offered the Applicant, at the hearing, an opportunity to provide further information or make comments about matters that had caused the Tribunal concern during the hearing. The Applicant said at page 74 of the Court Book that he would respond in writing. It is clear that he did not respond in writing. The Tribunal noted at page 75 of the Court Book that no further information was received from the Applicant. Additional particular two, whether it is or is not an additional ground, has just not been made out.
Conclusion
In my view, all of the Applicant's grounds, whether they are set out as grounds or particulars, have not been made out. I am mindful of the fact that the Applicant is not legally represented. I have read through the Tribunal decision record, independently of the Applicant's claims, and independently of the Minister's submissions. I am unable to discern any jurisdictional error or any arguable case of one. I am satisfied that no jurisdictional error has been made out.
In the absence of jurisdictional error, the decision of the Refugee Review Tribunal is therefore a privative clause decision. It is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Under sub-section 474(1) of the Act, privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus which, in effect, are orders that the Applicant seeks. It must follow from this that the application will be dismissed.
I intend to dismiss the application.
There is an application for costs on behalf of the First Respondent Minister in the sum of $5,000.00. Mr Reilly of Counsel has, very properly, told the Court that in respect of two previous appearances where the matter had to be adjourned, in circumstances which were not of the Applicant's doing, that costs were not sought for those occasions. That is an appropriate submission to make, and is in line with the Minister's policy of acting as a model litigant.
The amount of $5,000.00 is an amount allowed by the Federal Magistrates Court Rules. In my view, noting the fact that it was necessary to brief Counsel, and from my perusal of the file, it is an appropriate figure. I propose to allow costs in the sum of $5,000.00.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 November 2008
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