SZMHT v Minister for Immigration
[2008] FMCA 1183
•21 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMHT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1183 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 91R, 424A, 424AA, 425 |
| Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 SZJGV v Minister for Immigration [2008] FCAFC 105 |
| Applicant: | SZMHT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1320 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 21 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1320 of 2008
| SZMHT |
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 decision was handed down on 24 April 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background 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 submissions filed on 14 August 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 14 of those submissions:
The applicant is a Chinese national. He arrived in Australia on
4 August 2007 using a passport under a false name.The applicant applied for a protection visa on 18 September 2007 under s.36 of the Migration Act 1958 (Cth) (“the Migration Act”).
Applicant’s claims
In his application for a protection visa the applicant sought protection in Australia based on his fear of harm from Chinese authorities arising from being Christian and a member of the ‘Shouters’ (or ‘Local Church’).
The applicant claims that:
a)he owned a jewellery store in China from 2002 – 2005 and was forced to close this business due to harassment and theft from local bullies. The applicant claimed the authorities were bribed and refused to investigate. After closure of the business the applicant incurred significant gambling debts,
b)he began work in a local food-processing factory in June 2006 and at this time became involved in the Shouters’ church;
c)in March 2007 he was arrested, detained and persecuted by Chinese authorities for 10 days;
d)in June 2007 he escaped arrest at a secret gathering even though his employer and other members of the church were arrested;
e)since June 2007 on several occasions his family, friends and colleagues have been questioned and his home searched by the Chinese authorities;
f)he has not returned to his hometown since 22 June 2007;
g)he is considered a key member and assistant to a leader of the Shouters;
h)he has continued to practice as a Shouter since arriving in Sydney; and
i)he is on a ‘blacklist’ of the Chinese authorities and will be persecuted if he returns to China.
Delegate’s decision
On 14 December a delegate of the Minister refused to grant a protection visa to the applicant.
In his decision the delegate reviewed the applicant’s claims and evidence but ultimately was not satisfied the applicant had any Convention based claims for a protection visa.
Tribunal’s review process
On 14 January 2008 the applicant sought review of the delegate’s decision in the Tribunal.[1]
[1] court book (“CB”) at 1
On 18 March 2008 the applicant attended a hearing before the Tribunal. The hearing was conducted with the assistance of an interpreter.
Tribunal’s decision
The Tribunal handed down its decision on 24 April 2008.
In coming to its decision to affirm the delegate’s decision the Tribunal reviewed at length the claims and evidence provided to it. First, it reviewed the applicable law. Secondly, it set out the evidence before it, including independent country information and the applicant’s claims and evidence. Finally, it set out its findings and reasons.
The Tribunal’s decision largely turned on adverse credibility findings made against the applicant. Specifically the Tribunal[2]:
[2] CB at 36-39
a)found the applicant to have memorised aspects of his claims and information about Christianity and the Shouters and gave confused, evasive and incoherent evidence;
b)did not believe the applicant had any knowledge of the Shouters that had not been obtained for the purposes of the application;
c)did not accept the applicant was a member of the Shouters or any sect of Christianity or participated in or attended any Christian service or any underground church of any kind whilst in China;
d)did not accept the applicant was a Christian;
e)did not accept the applicant was forced to obtain a passport under another name due to his activities with the Shouters, as his claims to be a member of the Shouters was fabricated and false;
f)did not accept the applicant was arrested and detained, or that his family and friends/ colleagues were of any interest to authorities in relation to his activities, as claimed;
g)did not accept the applicant’s account of an incident in which he claimed to have escaped arrest whilst other members of the Shouters did not. The Tribunal found that this event did not occur;
h)believed the applicant only engaged in Shouter or Local Church activities in Australia for the purpose of strengthening his application; and
i)did not accept if the applicant returned to China now or in the foreseeable future that he would face any real chance of persecution for his involvement in or association with any underground Christian church.
The Tribunal also considered the applicant’s political opinion generally. It found his complaints of government corruption were vague and generalised and not sufficiently strong for the applicant to be compelled to express them if he were to return to China.
The Tribunal did not find that the applicant would suffer Convention based harm as a result of his religious activities, his political opinions, his membership of a particular social group or any other Convention reason[3].
[3] CB at 39.
These proceedings began with a show cause application filed on 22 May 2008. The applicant continues to rely upon that application. There are five grounds in the application:
1. The Tribunal failed to consider my claims impractically and correctly.
Particulars
In the Tribunal’s decision, it has stated that:
Despite promoting, the applicant was unable to give the Tribunal any meaningful information about the Church he claims to have joined, including how they practiced their faith, or in what manner. The applicant’s knowledge of the Shouter’s faith was confused, often incoherent and unconvincing…
It is definitely not true. Even according to Evidence at the Tribunal hearing on page 7 to 10 of the Tribunal’s decision, it can easily find that I have given many detailed information about Shouters while I was asked about it at the tribunal’s hearing. The Tribunal only gave two examples in support of its finding: the first one was in relation to the son of God; and the second one was regarding apocalyptic nature of the Local Church.
However, I have never said at the Tribunal’s hearing that “Jesus Christ was not the son of God;” instead, what I said was that “Jesus Christ is the son of God and the God himself”.
Furthermore, the Tribunal has never put a clear question to me about apocalyptic nature of the Local Church at the Tribunal’s hearing or the Tribunal failed to ensure me to understand its questions at the Tribunal’s hearing.
2.The Tribunal made a significant mistake in its decision or the Tribunal made a significant incorrect finding.
Particulars
I am definitely a member of the Shouters; and my active role played in the Shouters organisation in China has come to particular attention of the PRC authorities; and I have to use a false passport to leave the country.
3. The Tribunal failed to comply with its obligation under s.424AA of the Act.
Particulars
The Tribunal has considered some pieces of information as reason or part of reason in its decision, such as:
– information that my evidences in relation to the Shouters may be inconsistent with the evidences obtained from some websites in relation to the Shouters;
– information that no additional details or further information in relation to my arrest and detention;
– information in relation to my activities in the local church in Australia.
However, at the Tribunal’s hearing, the Tribunal failed to orally give to me clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure, as far as is reasonably practicable, that I understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and the Tribunal failed to orally invite me to comment on or respond to the information; and the Tribunal failed to advise me that I may seek additional time to comment on or respond to the infoarmtion.
4. The Tribunal failed to comply with its obligation under s.424A(1) of the Act.
Likewise, after the Tribunal’s hearing, the Tribunal failed to give to me in writing clear particulars of any information that the Tribunal considers would be the reason, or apart of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure in writing, as far as is reasonably practicable, that I understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and the Tribunal failed to invite me in writing to comment on or respond to the information.
5. I do not think that my application has been fairly considered by the Tribunal according to the laws.
I received as evidence a short affidavit made by the applicant in support of his application on 22 May 2008 and the court book filed on 16 July 2008. In his oral submissions the applicant did not address grounds 3 and 4 in his application. Those grounds are dealt with in the Minister's submissions at paragraphs 36 to 42. I agree with those submissions and adopt them for the purposes of this judgment:
Ground three asserts the Tribunal infringed s.424AA of the Migration Act.
At CB 34-35 it appears the Tribunal invoked the procedure in s.424AA of the Migration Act at the hearing in relation to information given by the applicant concerning his arrest and detention in China (CB 34-35). A fair reading of the Tribunal’s decision reveals that it complied with the requirements of s.424AA and did not infringe that provision. Specifically, the Tribunal complied with each of the requirements in s.424AA(b).
On a fair reading of the Tribunal’s decision and in the absence of any transcript, s.424AA was not infringed.
Ground three should be rejected.
Ground four
Ground four asserts the Tribunal breached s.424A(1) of the Migration Act.
The information relied on by the Tribunal did not enliven the obligations in s.424A(1). The Tribunal based its decision on country information and the evidence provided by the applicant to the Tribunal. That type of information is excepted from the obligation in s.424A(1) by s.424A(3) of the Migration Act. Further, any thought processes or subjective appraisals made in its findings does not constitute information under s.424A(1): see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.
Ground four should be rejected.
The Tribunal did not make any written disclosure of information pursuant to s.424A of the Migration Act, but the Tribunal decision did not turn on any information that required disclosure pursuant to that section. The Tribunal did undertake a course of oral disclosure pursuant to s.424AA of the Migration Act. To the extent that that section was engaged, I accept that the Tribunal met its obligations under it. It is arguable that because s.424A was not engaged the Tribunal went beyond its obligations under s.424AA, but in my view it is open to the Tribunal to follow the procedure prescribed in s.424AA in order to meet any obligation it may have pursuant to s.425 of the Migration Act in addition to any obligation arising from s.424A. The Tribunal adopted a prudent and appropriate course of raising with the applicant at the hearing the difficulties the Tribunal had with his evidence.
In relation to the other grounds in the application, the applicant submitted that the Tribunal decision did not record accurately questions put to him during the hearing and his answers given. The applicant is particularly concerned about the questions he was asked which were intended to draw out his knowledge of the distinctive beliefs of the Shouters or Local Church in relation to its apocalyptic vision and its belief in the divinity of Jesus Christ only after the resurrection.
The Tribunal was particularly concerned about the latter issue. The question and answers are recorded at CB 31 and 32 and the Tribunal draws attention to that issue in its reasons at CB 37. While the applicant now contends that the Tribunal's record of what occurred is not accurate, I have no evidence before me to challenge the accuracy of the Tribunal's account. In orders I made on 8 July 2008 I gave the applicant the opportunity to file and serve affidavit evidence, including a transcript of the Tribunal hearing, by 12 August 2008. He has not taken up that opportunity. The applicant asserted from the bar table that he had not received the sound recording of the Tribunal hearing. I note from CB 42 that the Tribunal sent that sound recording to the applicant's migration agent under cover of a letter dated 5 May 2008. I reject the assertion that the Tribunal did not accurately record the questions it asked of the applicant and the answers he gave.
In my view, the adverse credibility conclusions drawn by the Tribunal on the basis of the applicant's oral evidence were open to it on the material before it. I otherwise agree with and adopt for the purposes of this judgment the Minister's written submissions in paragraphs 20 to 35 in relation to the first two grounds in the application, and in paragraphs 43 to 45 in relation to ground 5:
Ground one contains two parts. Firstly it challenges the Tribunal’s finding that the applicant’s knowledge of the Shouters’ faith was “confused, often incoherent and unconvincing”[4] and the Tribunal was wrong to rely on only two examples of information given by the applicant. Secondly, it challenges the type of questions put to the applicant by the Tribunal at the hearing.
[4] CB at 37
This ground of review is unmeritorious.
So far as the first part of ground one is concerned, this appears to be a challenge to the findings and reasoning process that the Tribunal engaged in when it assessed the applicant’s evidence and found he was not a credible witness. These types of findings cannot be challenged on a judicial review application under the Act: see Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
This type of challenge is really an attempt to seek impermissible merits review. The review by the court system is to ensure that the Tribunal, which was charged with the responsibility of factually investigating the appellant’s claims, acted according to law: see SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [7]. This Court cannot conduct a merits review of the applicant’s claims: see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
If, on the other hand, the first part of ground one is an assertion that the Tribunal misunderstood the claims of the applicant and constructively failed to exercise its jurisdiction then this argument also is unmeritorious. On a fair reading of the Tribunal’s decision it is clear the Tribunal examined at length the applicant’s knowledge of the Shouters for the purpose of assessing the veracity of his claims. The Tribunal provided numerous opportunities for the applicant to respond to questions, present evidence and clarify information.
The Tribunal found the applicant was unable to demonstrate a proper knowledge of the Shouters’ faith, despite much prompting from the Tribunal. In its decision the Tribunal cited six examples in support of its findings that the applicant was deficient in his knowledge of the Shouters[5].
[5] CB at 37
In the circumstances there was no constructive failure to exercise jurisdiction on the part of the Tribunal.
So far as the second part of ground one is concerned, it appears to be a challenge to how the Tribunal conducted its questioning of the applicant. How the Tribunal conducts its review is a matter for him/her, so long as he/she conducts it according to law. There is no assertion made that the Tribunal conducted the hearing contrary to law, or s.425 of the Act, nor can such an assertion be supported. A fair reading of the Tribunal’s decision reveals the hearing was conducted according to the procedural fairness requirements set out in the Act.
Ultimately, the Tribunal concluded the applicant was not a member of the Shouters and did not have a genuine belief in, or commitment to beliefs and practices of the Shouters, the Local Church or Christianity. This was a factual finding open to it on the material and evidence before the Tribunal.
In the absence of any further particulars of this second part of ground one, it should be rejected.
Ground one should be rejected.
Ground two
Ground two is a generalised assertion challenging the findings of the Tribunal.
The decision of the Tribunal was one based essentially on adverse credibility findings made against the applicant. These findings related to extensive findings about the incoherent and confusing evidence given by the applicant to the Tribunal. Credibility findings are a matter of fact for the Tribunal alone and should not be disturbed by the Court: see Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
Furthermore, there was nothing legally objectionable about the credit findings made by the Tribunal as they were logical and reasonably open on the evidence: see Kopalapillai v Minister for Immigration (1998) 86 FCR 547.
The factual findings concerning the primary applicant’s claims were open to the Tribunal and therefore cannot be challenged in this Court. This Court cannot conduct a merits review of the applicant s claims: see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
Ground two should be rejected.
In ground five the applicant asserts that the Tribunal has committed jurisdictional error.
By itself this ground is a mere generalised assertion. It does not contain a basis for finding the Tribunal committed jurisdictional error.
Ground five should be rejected.
In his oral submissions the applicant also raised an issue not raised in his application. That is, an assertion that the Tribunal breached s.91R(3) of the Migration Act. The applicant relies on the recent decision of the Full Federal Court in SZJGV v Minister for Immigration [2008] FCAFC 105. Relevantly, the Full Federal Court found in that case that where the Tribunal disregards conduct in Australia for the purposes of s.91R(3), it is required to disregard that conduct for all purposes. The issue arises in relation to the Tribunal's consideration of the applicant's conduct in Australia, relevantly dealt with in the Tribunal's reasons at CB 38 and 39. The Tribunal had already found at CB 37 that it was not satisfied that the applicant was a member of the Shouters, or Local Church, or of any Christian sect in China. In relation to his activities in Australia, the Tribunal found at CB 38 that his claim of attending the Local Church in Sydney was dubious given that his evidence in regard to the nature of the service and his actual attendance at the church was lacking in relevant details, and in many instances, incoherent. The Tribunal was not satisfied that the applicant attended a service in Australia at all. Nevertheless, the presiding Member went on to say:
However, even if he has attended the Church, for the reasons outlined above, the Tribunal is not satisfied that the applicant is a genuine or committed Shouter or Local Church member. As such, the Tribunal has formed the view that the applicant engaged in activities in Australia in order to strengthen his claim for refugee status and he has no real commitment at all to the Local Church. As the Tribunal is not satisfied that the applicant's conduct was otherwise than for the purpose of strengthening his claim to be a refugee under the Refugees Convention it must disregard his conduct in Australia as required by section 91R(3) of the Act.
On a fair reading, this consideration of the applicant's conduct in Australia appears to have been considered necessary by the Tribunal on the basis that it was not so strongly of the view that the applicant had not attended any services in Australia that it could fail to consider that asserted conduct. The consideration was, in effect, a "what if I am wrong?" consideration. The words “for the reasons outlined above” in the quoted passage must relate back to the Tribunal's rejection of the applicant's claim to have been a member of the Shouters or the Local Church in China. The Tribunal's reasoning appears to have been that because the applicant was not a member of the Shouters or Local Church in China, and possibly also because of the difficulties in his evidence about his activities in Australia, whatever he may have done in this country was not because he had any genuine faith, but in order to support his protection visa claims.
The Tribunal then went on to consider the risk of future harm, as it was bound to do. Relevantly, the Tribunal said[6]:
The applicant claims that he will be persecuted in China if he returns because of his membership of the Local Church or Shouters, however as the Tribunal has found that the applicant is not a genuine or committed Local Church member or Shouter, or even a Christian, it follows that the Tribunal does not accept that the applicant will attend the Local Church, or any other underground Church if he returns to China.
[6] CB 39
This passage is open to two possible interpretations. The first is that because the applicant was not a member of the Local Church or Shouters in China and there was no conduct available in Australia for the Tribunal to consider, the applicant was not at risk of harm in China because he had no relevant faith that he would pursue. The alternative interpretation is that because the applicant was not a member of the Shouters or Local Church in China and because his conduct in Australia was not motivated by reasons of faith, but in order to support his protection visa claims, he would not pursue that faith in China and hence he would not be at risk.
The link drawn by the Tribunal to its finding about his conduct in China with a lack of a genuine commitment to the faith in the course of disregarding his asserted conduct in Australia leads me to prefer the former interpretation. On that basis, there would be no breach of s.91R(3). However, if I am wrong and the second interpretation is the correct one, I find that the Tribunal did not take into account the applicant's conduct in Australia in considering the future risk of harm in China, but rather only took into account the applicant's motivation for that conduct. That was merely an element of the Tribunal's reasoning process in relation to the consideration of that conduct. It also probably took into account information about the applicant's conduct rather than the conduct itself.
The Full Federal Court in SZJGV left open the possibility that a decision maker was entitled to have regard to information about conduct in Australia while disregarding the conduct pursuant to s.91R(3). I find that the Tribunal did not breach that section.
I find that the Tribunal decision is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,000. Scale costs in this instance would be $5,000. The applicant indicated his understanding of the issue in relation to costs but did not make any submissions. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 August 2008
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