SZMHG v Minister for Immigration

[2008] FMCA 1267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1267

MIGRATION – Review of RRT decision – where Tribunal did not accept applicant’s claims that she had been detained or tortured – whether Tribunal had complied with s.424AA Migration Act 1958 (Cth) – whether breach of s.425 – where no additional evidence provided – nature of questioning by Tribunal as to applicant’s religious views – whether contravention of s.91R(3).

Migration Act 1958, ss.91R(3), 424A, 424AA, 425

SZJYA v Ministerfor Immigration (No 2) [2008] FCA 911
WALT v Minister for Immigration [2007] FCAFC 2
SBCC v Ministerfor Immigration [2006] FCAFC 129
SZJGV v Ministerfor Immigration (2008) 102 ALD 226

Applicant: SZMHG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1284 of 2008

Judgment of: Raphael FM

Hearing date: 28 August 2008

Date of Last Submission: 28 August 2008

Delivered at: Sydney

Delivered on: 28 August 2008

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Ms T Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1284 of 2008

SZMHG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. She arrived in Australia on 22 August 2007. On 31 August 2007 she applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 27 November 2007 a delegate of the Minister refused to grant a protection visa and the applicant sought review of that decision from the Refugee Review Tribunal on 4 January 2008. The applicant attended a hearing before the Tribunal on 27 March 2008. On 9 April 2008 the Tribunal determined to affirm a decision not to grant the protection visa and handed that decision down on 22 April 2008.

2. The grounds upon which the applicant claimed she was a person to whom Australia owed protection obligations were the Convention reasons of religion and political opinion. It is fair to say that the applicant claimed that she came to her political views as a result of her religious conviction. She submitted a short statement with her protection visa application and it is reproduced at [CB 102-103] in the Tribunal's decision record.

3. She had been introduced to Christianity by an old lady that she had met in 2002. She claimed that the Chinese authorities found out about her and started to supervise her outside her home. On 17 May 2005 she claimed that she was arrested and tortured whilst in detention. She said she was released due to a lack of hard evidence and prepared to escape. She remained in China until 29 November 2006 when the police came again and arrested her. She said she escaped by pretending to go to the toilet. She used bribery and with difficulty escaped from China and came into Australia. On the basis of this information the delegate found that her claims lacked the type of substantiating detail that was considered necessary to come to the state of satisfaction required by the Migration Act 1958 (the “Act”). The delegate understood that the church the applicant referred to was an underground church but did not specifically nominate a denomination.

4. When the applicant came before the Tribunal she told it that the denomination was an underground Catholic church. In response to the Tribunal's questions she went into some very considerable detail about her arrest and her treatment. The torture which she described is set out at [CB 104]. She explained the reason for the second arrest which came about as a result of her appealing the first. She told how on that occasion she was pregnant but as a result of the treatment that she received from the police she began to miscarry. After inducing a guard to find her a tampon she managed to escape and found a friend who picked her up and took her to a nearby hospital. She told how a friend had informed her that the friend's husband who worked in the PSB was aware that she had been labelled a threat to the 2008 Olympic Games. And so her friends and family rallied around and paid sufficient moneys to allow her to leave China on 21 August 2007.

5. The Tribunal questioned the applicant about her attendance at church in Australia and she advised that she attended a church in Flemington. The Tribunal then questioned her about the Catholic faith. It is fair to say that the questions which are discussed at [CB 105-106] were elementary and the responses revealed in the reasons for decision do not indicate a wide knowledge either of Christianity or of its interpretation by those committed to Roman Catholicism. The Tribunal made it clear to the applicant that it had concerns about the manner in which she was responding to these questions and that those concerns indicated that she may not be a genuine adherent to the faith. In its decision the Tribunal considered some independent country information concerning Catholicism and underground churches in China. The Tribunal's findings and reasons commence at [CB 111].

   “In the Tribunal's view, the applicant has not provided a truthful account of her experiences or beliefs in China.  In particular, the Tribunal does not accept that the applicant ever had any involvement with an underground Catholic Church while in China, nor that such involvement caused her to leave the country.  The Tribunal does not accept that the applicant regularly attended worship or gatherings at an underground Catholic Church as claimed or that she was a member of an underground Catholic Church in China. 

   It follows that the Tribunal does not accept that the applicant became involved in discussions on political issues or the distribution of political material through her involvement with the underground Catholic Church.  The Tribunal does not accept that the applicant ever came to the attention of the Chinese authorities for attending worship in an underground Catholic church or for being a member of the underground Catholic Church or for being associated with an underground Catholic church as claimed.  The Tribunal also does not accept that the applicant ever came to the attention of the Chinese authorities for being involved in political discussions or for distributing political material.” 

   The Tribunal did not accept that the applicant had been detained or tortured as she had claimed.

6. The Tribunal considered the applicant's attendance at the Catholic church in Flemington:

   “In the Tribunal's view, while the applicant may have attended a Catholic Church in Australia she does not follow the Catholic faith, has not done so in the past and shall not do so in future. In the Tribunal's view, the applicant's sole motivation in attending the church in Australia has been to support this application. As the tribunal is not satisfied that the applicant's conduct in attending a Catholic Church in Australia was otherwise for the purpose of strengthening her claim to be a refugee, the Tribunal must disregard that conduct in determining whether she has a well-founded fear of being persecuted: see s.91R(3) of the Act) The Tribunal does not accept that she will follow the Catholic faith if she returns to China because she has not done so in the past and her involvement here is not based on any genuine belief.”.

   The Tribunal concluded that the applicant would not come to the attention of the Chinese authorities for her involvement in political discussions or distribution of political materials or would do so should she return to China in the near future.

7. In an application filed on 19 May 2008 the applicant gave seven grounds for alleging that the Tribunal had fallen into jurisdictional error. The first ground was that the Tribunal failed to carry out its statutory duty. I take this to be an over-arching allegation to which in a way the other complaints are particulars. She says in paragraph two that the Tribunal failed to give her information completely and clearly during the hearing which was used as the reason or part of the reason for affirming the decision.

8. Notwithstanding the imposition into the Act of s.424AA and the manner in which it has come to the attention of this court that that sub-section is being interpreted by Tribunals, the requirements only relate to "information". So whilst many Tribunals are sending letters which effectively give an indication of the way the Tribunal is thinking about the evidence, that is not a requirement. If there is no information to discuss there is no necessity to comply with the provision of s.424AA, in particular the invitation to comment and the advice that the applicant may seek additional time and an adjournment of the review.

9. The way in which the Tribunal here has expressed itself in its reasons for decision indicates that whilst it informed the applicant of matters of concern this was more a comment upon the responses that she was giving and did not involve the Tribunal in providing the applicant with any "information" as the same has been interpreted by decisions of the High and Full Federal Courts.  I am unable to see that the Tribunal has fallen into jurisdictional error in this way. 

10. The third "ground" of application argues that the Tribunal has failed to provide the applicant with required particulars of independent country information or explained why it is relevant to the review. This ground is misconceived because independent country information is not subject to the provisions of s.424A of the Act. The fourth ground also relates to this independent country information and is subject to the same difficulties.

11. The fifth ground is that the RRT failed to observe its obligations under s.425 of the Act. The applicant argued that her rights to give oral evidence and support her claims were restricted because of interruptions by the member and the interpreter. She said she often lost her thoughts and flow of thinking because of those interruptions and restrictions. I have not been provided with any additional evidence relating to this ground neither by way of affidavit nor production of a transcript or a tape recording of the hearing.

12. In SZJYA v Ministerfor Immigration (No 2) [2008] FCA 911, Rares J considered the question of evidence on matters such as this and at [33] his Honour said:

    “Ordinarily, the best way of proving what occurred at the hearing before the tribunal would be to tender the transcript or a tape of the hearing. A less fulsome method may be to read an affidavit or lead oral evidence giving an account of what occurred. Notwithstanding that, I am of opinion that what the tribunal has set out in its statement of decisions and reasons is some evidence of what occurred at the hearing; indeed it was the only evidence on that question before his Honour and on appeal.”

13. Although the applicant spoke to me during the course of the hearing she did not refer in any way to this complaint about the hearing before the Tribunal. I regard the Tribunal's rehearsal of the evidence put before it as reasonable evidence of what occurred. It seems to me that the applicant was given every opportunity to explain her case. Indeed, the story that she gave to the Tribunal was a very significant expansion of that put before the delegate, but fairly the Tribunal did not use that as a reason for concluding that the story was not true. It seems to me that if the applicant had truly been interrupted by the member and the interpreter as she indicates it would have been difficult for the Tribunal to provide such a comprehensive rehearsal of the history. I am unable to be satisfied that a breach of s.425 alleged has occurred.

14. The sixth ground is an attempt to give an explanation for why the applicant did not provide extra information to the Tribunal.  This is not a matter that goes to any jurisdictional error on the part of the Tribunal because it refers entirely to matters outside the Tribunal's control. 

15. Finally, the applicant claims that she was treated unfairly by the Tribunal because other friends of hers were granted refugee status. The applicant cannot be expected to understand the system under which these matters are adjudicated but as the Minister states in his helpful written submissions:

    “The RRT was required to give the applicant's case separate and independent consideration in accordance with the statutory requirements.  There is no evidence to suggest that the applicant provided details of other applications to the RRT for its consideration and in any event, a decision made in another application could only have been persuasive rather than determinative.”

    I would add that whatever might have been done in another case was entirely dependent upon the credibility of that particular applicant.  And in this case, credibility was the issue.

16. I have independently considered the nature of the questions asked by the Tribunal because I am aware of the views as expressed by the Federal Court in cases such as WALT v Minister for Immigration [2007] FCAFC 2 and SBCC v Ministerfor Immigration [2006] FCAFC 129. In my view the questions asked in this case do not set out to clothe the Tribunal in the role of arbiter of doctrine. Rather, it was a legitimate exploration of what the applicant knew about her religion in order to assess the genuineness of her claim: SBCC at [47].

17. In fairness to the applicant the Minister also discussed in his submissions the recent decision in SZJGV v Ministerfor Immigration (2008) 102 ALD 226. The Tribunal had made a finding under s.91R(3) which I have extracted. I do not believe that the Tribunal has breached s.91R(3) by utilising that finding. Rather, in concluding that the applicant would not follow the Catholic faith if she returned to China, it is expressing a view that follows from its conclusion that the applicant had no genuine Catholic belief, which conclusion the Tribunal had already come to before considering the applicant's attendance at the church in Sydney.

18. It is put more elegantly by the Minister in his written submissions:

    “By stating that "her involvement here is not based on any genuine belief", the RRT was merely reiterating its findings made with respect to s.91R(3), namely that the Applicant had failed to satisfy the RRT that her conduct was otherwise than for the purpose of strengthening her claim to be a refugee. Unlike SZJGV, the RRT therefore complied with the requirement of 91R(3) by disregarding her conduct on the basis required by the section.”

19. In these circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: