SZMGS v Minister for Immigration
[2008] FMCA 1386
•2 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1386 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – whether the Tribunal breached ss.424AA or 91R(3) of the Migration Act 1958 (Cth) considered – application dismissed. |
| Federal Court Rules Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A, 424AA, 425, 476 |
| NAHI v Minister for Immigration [2004] FCAFC 10 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZGYM v Minister for Immigration [2008] FMCA 1270 SZJGV v Minister for Immigration [2008] FCAFC 105 SZLWI v Minister for Immigration [2008] FCA 1330 SZLXI v Minister for Immigration [2008] FCA 1270 |
| Applicant: | SZMGS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1251 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 2 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
The date from which the appeal period shall run be fixed at 31 October 2008, pursuant to Order 52, rule 15(1)(a)(iii) of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1251 of 2008
| SZMGS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal gave an oral decision on 23 April 2008 and handed down reasons for the decision on 6 May 2008. The Tribunal affirmed a decision of the delegate and Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of religious persecution. Backgrounds facts relating to the applicant's claims and the decisions of the delegate and the Tribunal on them are conveniently summarised in the Minister's written submissions filed on 25 September 2008. I adopt as background for the purposes of this judgment with minor amendments paragraph 4 through to paragraph 15 of those written submissions:
The applicant claims fear of persecution in China for the Convention‑related reason of religion. He claims he is a member of an ‘unauthorised’ or underground church. The applicant claims that members of unauthorised churches face severe punishment in China[1].
[1] Green Book (GB) 100-116.
The applicant claims he made three unsuccessful attempts to flee China with a passport issued in the name of ‘…’. He claims on his fourth attempt he successfully left China via Hong Kong using a Cambodian visa. He claims he changed passports before entering Thailand to a passport in the name ‘…’. The applicant then transited from Thailand back to Hong Kong using the passport in the name ‘…’, before going to Singapore then lastly coming to Australia.
Decision of the delegate
On 1 February 2008 a delegate of the Minister refused to grant a protection visa to the applicant[2].
[2] GB 69-78.
That decision was based on an assessment of the applicant’s claims and independent country information. The delegate found the applicant did not have a well-founded fear of persecution.
Review in the Tribunal
On 11 March 2008 the applicant lodged an Application for Review of the delegate’s decision in the Tribunal[3].
[3] GB 59.
On 23 April 2008 the applicant attended a hearing before the Tribunal with the assistance of an interpreter[4].
Tribunal’s decision
In its decision dated 5 May 2008 the Tribunal member affirmed the delegate’s decision not to grant a protection visa to the applicant.
In coming to its decision first, the Tribunal reviewed the applicable law. It then set out the applicant’s claims and evidence. Then it set out applicable country information. Finally, it set out its findings and reasons.
The Tribunal accepted the applicant was a citizen of China. The Tribunal also accepted his true name was ‘…, and not ‘…, the name he used to enter Australia.
The Tribunal’s decision was based on a finding that the applicant was not a credible witness. This finding was based on a rejection of the applicant’s claim as vague and inconsistent in certain respects. On this basis the applicant’s claims were not accepted[5].
The Tribunal found the applicant invented his story about his and his family’s involvement with an unauthorised church in China. The Tribunal did not accept the applicant was a Christian in China. The Tribunal found the applicant was not a member of an unauthorised church in China[6].
The Tribunal found the applicant did not have a well-founded fear of Convention-related persecution. The Tribunal found the applicant was not a person to whom Australia owed protection under the Act.
Judicial review application in the Federal Magistrates Court of Australia
On 16 May 2008 the applicant filed an Application under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”)[7].
[4] GB 89.
[5] GB 119.
[6] GB 118-120.
[7] Filed 10 June 2008.
These proceedings began with a show cause application filed on 16 May 2008. The applicant now relies upon an amended application filed on 26 September 2008. It appears that amended application was not served on the respondents but a copy was provided to counsel for the Minister during the trial of the matter today and he dealt with it during oral submissions. I incorporate in this judgment the seven grounds and six particulars in the amended application:
1. The Tribunal failed to act judicially and afford procedural fairness.
2. The Tribunal failed to comply with s.91R(3) of the Act.
3.The Tribunal failed to use the most updated country information to investigate the applicant’s claims.
4.The Tribunal failed to comply with s.424A(1)(a)&(b) of the act.
5.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.
6.The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims..
7.The Tribunal was preoccupied and failed to investigate the applicant’s genuine claims.
Particulars:
1.The Tribunal did not [centralise] my claim and correctly identify my well found fears of persecution on the grounds of religion if forced to return to PRC. And the Tribunal didn’t investigate my underground church involvement and focused on the authorised church which is irrelevant to my claims.
2.The Tribunal didn’t consider … my claims thoroughly. On P26 (RRT decision), I gained most of Christian knowledge in Sydney which means I am [practising] my religion more and more than before which is not allowed in PRC. If I am forced to return to PRC, I will be … a person of interest to the PRC authorities on the account of my religion.
3.The Tribunal didn’t consider the … new information I claimed about the persecution in my childhood and didn’t give me chance to explain it and failed to investigate it.
4.The Tribunal did not use the most updated country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal ought to use all the information for matter of reasoning and evaluation of my case for protection visa.
5.The country information the Tribunal quoted was dated as 2006, 2004, 2001, which is out of date and the circumstance may change now.
6.With regard to s.91R(3) of the Act, the Tribunal disregards [my] claims with the underground church in China and church involvement since coming to Australia.
I received as evidence the applicant's affidavit filed on 16 May 2008 and the court book filed on 25 June 2008.
The applicant took the opportunity to make oral submissions in support of his application. He was concerned about the length of the hearing before the Tribunal[8] and the manner in which he was questioned by the Tribunal. In particular, the applicant asserts that he was asked the same questions repeatedly. He asserts that at some points he understood he was believed and at other points he understood he was not believed. He thought that he should have had the opportunity after the hearing to make further submissions in writing.
[8] GB 89-90.
The only evidence before me of what occurred at the Tribunal hearing is the Tribunal decision. It does not appear from the record of the hearing in the Tribunal's decision there was anything untoward in the Tribunal's manner of questioning. It would not be surprising if the Tribunal asked the same question more than once as a technique of testing the applicant's credibility. It appears, at least in relation to the issue of the applicant's identity, that his credibility waxed and waned somewhat during the course of the hearing. Ultimately, the Tribunal accepted that the applicant was who he said he was.
I am satisfied that the hearing opportunity afforded the applicant was a real one. It is noteworthy that the Tribunal made an oral decision at the conclusion of the hearing. However, there is no evidence that the applicant sought or needed an opportunity to present further material after the hearing
In addition to the grounds in the show cause application and the amended application, I made orders on 11 August 2008 requiring the Minister to show cause why relief should not be granted on the issues of:
a)whether the Tribunal breached s.91R(3) of the Migration Act in relation to its findings in paragraphs 120, 121 and 122 of its reasons; and
b)whether the Tribunal breached s.424AA of the Migration Act by failing to advise the applicant of his options to respond to adverse information disclosed orally to the applicant at the hearing, notwithstanding the Tribunal’s statement at paragraph 82 of its reasons.
Subject to what I say below concerning s.91R(3), there is no substance to the grounds in the amended application. It is apparent from the Tribunal's reasons that the Tribunal understood the applicant's claims and considered them. I have already found the Tribunal met its obligations pursuant to s.425 of the Migration Act. No obligation of disclosure arose under s.424A of the Migration Act because the Tribunal decision turned on adverse credibility findings based upon the applicant's own evidence given to the Tribunal.
The applicant's attack upon the thoroughness of the Tribunal's consideration of his claims does not rise above a contest over the merits of the Tribunal decision. The applicant contends that the Tribunal failed to consider new information he put to the Tribunal about being persecuted in his childhood. This appears to be a reference to the applicant's assertion that he had once be in a riot in his village when he was a child and that this brought him to the adverse attention of the police[9]. The Tribunal considered and rejected that claim[10].
[9] GB 115, paragraphs 83 to 88
[10] GB 119, in particular at paragraph 112
The applicant's assertion that the Tribunal based its decision upon outdated country information raises no issue of jurisdictional error. I accept the Minister's submission that it is for the Tribunal to place what weight it chooses upon country information. In any event, on my reading of the Tribunal decision, country information had no bearing on the outcome of the applicant's application to the Tribunal.
The Minister's submissions dealt with the grounds of review contained in the original show cause application. To the extent that those grounds have any continuing relevance, I agree with and adopt for the purposes of this judgment, paragraphs 19 through to 24 of the Minister's written submissions:
Neither the six grounds of review contained in the application, or the particulars set out in the application contain any proper basis for arguing that the Tribunal committed jurisdictional error.
So far as the six grounds are concerned, they are mere generalised assertions and without more must be rejected.
In particular one the applicant alleges the Tribunal failed to identify the applicant’s claimed fear of persecution on the ground of religion. This must be rejected. The Tribunal plainly considered the applicant’s claim based on his fear of persecution on religious grounds[11]. Particular one must be rejected.
In particular two the applicant alleges the Tribunal did not consider his claims thoroughly, and that his practice of religion in Australia has meant he will be a person of interest to the Chinese authorities if he returns on account of his religion. This must also be rejected. The Tribunal considered this evidence but found that the applicant’s conduct was not engaged in otherwise than for the purpose of strengthening his refugee claim and disregarded that evidence[12].
Particular three without more is nonsensical and must also be rejected.
Particular four is a challenge to the way the Tribunal used country information. This argument must also be rejected as the findings regarding country information are findings of fact and cannot be challenged in this Court. The weight a Tribunal gives to such evidence is a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration [2004] FCAFC 10 at [11].
[11] see GB 100, paragraphs 23-24; GB 116, paragraph 106 and ff.
[12] GB 120, paragraph 119.
The Minister's submissions also deal in paragraphs 25 through to 43 with the additional issues raised by me. I incorporate those paragraphs in this judgment:
Neither of the two further grounds of review raised by the Court can succeed for the following reasons.
Further Ground One
The first possible ground of review raised by the Court is whether the Tribunal breached s.424AA of the Act.
There has been no breach of s.424AA in the present case. Whilst the Tribunal indicates in its decision (at GB114-115 para. 82) that it referred to s.424AA at the hearing regarding an inconsistency in the applicant’s evidence, namely the inconsistency between question 41 of his protection visa application and his oral evidence, no obligation under s.424AA arose as such an inconsistency is not “information” for the purposes of s.424AA: see SZLXI v Minister for Immigration [2008] FCA 1270 (Cowdroy J). The “information” that was put to the applicant (the inconsistency in his evidence) did not enliven any of the obligations in s.424AA(b).
In the alternative, if the Court finds that the obligations in s.424AA were enlivened in someway, it is clear from a fair reading of the Tribunal’s decision that the Tribunal Member complied with his obligations in s.424AA(b) in any event. The applicant has not served any evidence to contradict the decision of the Tribunal Member and the Tribunal Member’s recollection of the hearing at GB114-115 para. 82. In the absence of any evidence from the applicant the Court cannot conclude the Tribunal breached any s.424AA obligation (assuming any such obligation arose in the first place).
Further Ground One must be rejected.
Further Ground Two
The second possible ground of judicial review is that the Tribunal has breached s.91R(3) of the Act by having regard to the applicant’s conduct in determining the applicant’s refugee claims (see GB120, paras. 120-122), despite having found that it disregarded that evidence under s.91R(3). In other words, it is suggested the Tribunal committed an error of the kind identified by the Full Court in SZJGV v Minister for Immigration [2008] FCAFC 105 (“SZJGV”).
Firstly, it is submitted that there was no breach of s.91R(3). On a fair reading of paragraphs 120 to 122 of the Tribunal’s decision (as outlined below) the Tribunal Member plainly disregarded the evidence as the Member was required to do under s.91R(3) of the Act.
The Tribunal dealt with the applicant’s conduct in China and then Australia separately and distinctly. In its findings and reasons in paragraphs 96 to 115, the Tribunal considered then rejected the applicant’s substantive claims based on the applicant’s conduct whilst in China. The Tribunal’s findings as to the applicant’s credit were based solely on its consideration of the applicant’s conduct in China in paragraphs 96 to 115.
At paragraphs 116 to 119 the Tribunal turned to the issue of the applicant’s conduct whilst in Australia, and made its s.91R(3) finding. The s.91R(3) finding was not relevant to the credit findings that had already been made against the applicant. It was a discrete finding.
At paragraphs 120 to 125 the Tribunal concluded its determination by summarising the conclusions it had reached elsewhere.
In particular, at paragraphs 120 to 121 the Tribunal rejected any religious claim, and any notion that the applicant would have to choose between being a discrete Christian and facing persecution if he returned to China.
Then at paragraph 122 the Tribunal concluded that did not accept that the applicant had any imputed religious affiliation claim. The reference in that paragraph to that imputation arising from any “perceived affiliation with the Christian church in Sydney”, is entirely consistent with the finding made in paragraph 119 that applicant’s conduct in Australia would be disregarded. In other words, in paragraph 122 all the Tribunal was doing was noting (“on the evidence before it”) that there was no evidence to support any finding that the applicant would face persecution if he returned to China from an imputed religious affiliation. This is because the Tribunal had previously found that it “disregards the applicant’s involvement with the church since coming to Australia” (paragraph 119).
Therefore in paragraphs 120-122 the Tribunal Member did nothing more than restate the findings it had already made in previous paragraphs, but in a way that summarised its conclusions as to why the applicant’s claims failed. There was nothing erroneous about the Tribunal Member concluding his decision by doing this. The Tribunal Member did not commit any jurisdictional error.
In the alternative, assuming the Court does not accept that the Tribunal disregarded the applicant’s conduct whilst in Australia in its findings in paragraphs 120 to 122, then the first respondent submits that the Court should refuse to grant the constitutional writ relief on discretionary grounds.
In a recent decision of the Federal Court (on appeal from the Federal Magistrates Court) Gilmour J held in SZLWI v Minister for Immigration [2008] FCA 1330 (“SZLWI”) that where findings in respect of conduct engaged prior to coming to Australia independently support the Tribunal’s conclusion on the question of persecution, then the Court should exercise its discretion and refuse to grant the relief sought. That is because the Tribunal has independently found a basis for rejecting the applicant’s refugee claims and there would be no purpose in granting relief against the Tribunal in those circumstances.
In SZLWI Gilmour J said (at [45]):
The first respondent submits that even if there has been a breach of s.91R(3), the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant’s conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal’s conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82 at [104], [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [80], [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [29].
In the present case it is clear that the Tribunal dealt with the applicant’s conduct in China separately and distinctly from his conduct engaged in whilst in Australia, and found based on the applicant’s conduct in China that the applicant’s refugee claims failed. In other words, applying SZLWI, the “findings in respect to the appellant’s conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal’s conclusions on the question of persecution”.
In his reasons, the Tribunal Member concludes at GB119, para. 115, that the applicant was not a Christian prior to coming to Australia. Further, the Tribunal did not accept that the applicant was a member of any unauthorised church in China. This rejection of the applicant’s refugee claims was based on findings made that the applicant was not a witness of truth. This credibility finding was based solely on the applicant’s evidence of persecution whilst in China and had nothing to do with the Tribunal’s conclusions regarding the applicant’s conduct in Australia.
If the Court finds there was an error of the kind identified in SZJGV, then the Court should decline to grant the relief sought. There was in this case, as there was in SZLWI, a separate basis, independent of the findings regarding the applicant’s involvement in the Christian church in Australia, for supporting the Tribunal’s conclusion that the applicant was not a refugee.
I agree in general with the Minister's submissions concerning s.424AA. In my view, no obligation of disclosure arose under s.424AA in this case. The purported course of disclosure pursuant to that section referred to by the Tribunal at paragraph 82 of its reasons[13] arguably did not enliven the section at all. That is because there was nothing in the information disclosed that could be said to be on its face adverse: see SZBYR v Minister for Immigration (2007) 235 ALR 609. Even if the section had been enlivened, although the Tribunal's reference to the nature of its disclosure is brief there is no persuasive evidence of a failure by the Tribunal to meet its obligations of disclosure under the section.
[13] GB 114-115.
The principal issue in this case relates to s.91R(3). After rejecting the applicant's claims concerning his religious involvement in China, the Tribunal considered his asserted practice of Christianity in Australia. The Tribunal accepted that the applicant had been associating with a Christian church in Sydney, but having found that he was not a practising Christian in China and that he did not come to Australia seeking protection, the Tribunal regarded that involvement with scepticism. The Tribunal concluded that the applicant had attached himself to a Christian church in Australia for the purpose of strengthening his protection visa claims. It followed that the Tribunal was required to disregard that conduct pursuant to s.91R(3) and the Tribunal purported to do so at paragraph 119 of its reasons[14]. The Tribunal then went on to make a forward looking assessment of whether the applicant would be at risk of persecution in China should he return there[15]:
The Tribunal finds that the Applicant is not a person of good faith as far as the present application is concerned. For this reason the Tribunal is not satisfied that the Applicant is genuinely interested in Christianity. Accordingly, the Tribunal concludes that in the event of return to the PRC the Applicant would not be genuinely interested in Christianity.
The Tribunal does not accept that the Applicant would find himself in the dilemma of having to choose between being a discreet Christian and facing a heightened risk of persecution from the authorities. The Tribunal does not accept this because, on the evidence before it, the Applicant is not a genuine Christian.
The Tribunal does not accept on the evidence before it that, arising from any perceived affiliation with the Christian church here in Sydney, the Applicant would be imputed in the PRC to be in breach of the PRC’s regulation of religion, or that he would face a real chance of persecution arising from such a perceived affiliation.
On the evidence before it, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in the PRC. The Tribunal is not satisfied that the Applicant’s claimed fear of Convention-related persecution is well founded. The Tribunal is not satisfied that he is a refugee.
[14] GB 120.
[15] GB 120.
I do not agree with the Minister's submission that those reasons can be attached entirely to the Tribunal's rejection of the applicant's credibility in relation to his claims of religious adherence in China. The Tribunal's references to the applicant not being genuinely interested in Christianity and not being a genuine Christian imports, in my view, a link with the Tribunal's consideration of the applicant's conduct in attaching himself to a Christian church in Australia. It is strongly arguable that if the Tribunal fell into error in that approach that the decision is nevertheless supported by the fundamental rejection of the applicant's credibility in relation to his claims of his experiences in China. I accept in that regard the Minister's submissions based upon the recent decision of the Federal Court in SZLWI. However, in my view, it is unnecessary to consider whether relief should be withheld in the exercise of discretion.
In my view the Tribunal's approach did not involve a breach of s.91R(3). That is because the Tribunal's conclusion that the applicant was not a genuine Christian was based upon the rejection of his claims in relation to China and the Tribunal's conclusions as to the motivation for his conduct in Australia. In a series of cases I have found there is a distinction between conduct and the Tribunal's conclusions as to the motivation for that conduct. I refer in particular to my decision in SZGYM v Minister for Immigration [2008] FMCA 1270 at paragraphs 5 through to 8.
In my view the Tribunal's reasoning at paragraphs 120 to 123 of its reasons did not draw upon the applicant's conduct in Australia but simply the Tribunal's own conclusions as to the motivation for that conduct.
I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
Costs should follow the event in this case. The Minister seeks scale costs of $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
Due to my absence on leave, reasons for this decision will not be available until November. In the circumstances and to ensure that the applicant is not disadvantaged should he choose to exercise his right to appeal, I order that the date from which the appeal period shall run be fixed at 31 October 2008, pursuant to Order 52, rule 15(1)(a)(iii) of the Federal Court Rules.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 November 2008
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