SZMLA v Minister for Immigration
[2008] FMCA 1724
•8 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMLA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1724 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 412, 422B, 424, 424AA, 424A, 425 |
| Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749 |
| Applicant: | SZMLA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1603 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 8 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1603 of 2008
| SZMLA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal signed on 9 May 2008 and handed down on 29 May 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of People's Republic of China, arrived in Australia in June 2000 and applied for a protection visa. In a statement accompanying his protection visa application he claimed to have a well-founded fear of persecution as a Falun Gong practitioner. The application was refused by a delegate of the first respondent in July 2000.
An application for review of the delegate's decision was lodged with the Tribunal on 18 December 2007. Notwithstanding the time that had passed the Tribunal accepted that the application was validly made under s.412 of the Migration Act 1958 (Cth) and proceeded to consider the review application. In its reasons for decision the Tribunal recorded that when it received the application it made enquiries with the Department to determine whether the review application was out of time. On discovering that the Department's mail register, which would have shown whether the decision notification was sent in accordance with the requirements of the Act, did not go back as far as the year 2000 the Tribunal found there was “no evidence to conclusively support a finding that the decision notification letter was despatched within 3 working days of the letter's date. On that basis it proceeded to consider the review application.”
In a statement provided to the Tribunal on 17 March 2008 the applicant claimed to fear persecution for reason of his Christian religion, in particular his involvement in the underground church. He described events that he claimed had occurred at various times when the congregation had gathered together for proposed baptism ceremonies. He claimed that in 1992 he had been detained and goaled for over a month during which time he had been mistreated. He also claimed that a baptism ceremony held in his home in 2000 was interrupted (apparently by the authorities), but that he escaped and travelled to Australia on another person’s passport. He attended and was baptised at the Chinese Church in Padstow and later joined a named church in Kogarah.
The applicant attended a Tribunal hearing on 2 April 2008. In its reasons for the decision the Tribunal described at some length the conduct of that hearing and the evidence of the applicant, commencing with a discussion of the applicant's claims that he was a Christian, his claims about the nature of his Christianity, his Christian activities in China and past events. The Tribunal recorded that the applicant made inconsistent claims that were raised with him during the course of the hearing.
The Tribunal then recorded that the applicant had indicated that a female witness would also attend the Tribunal hearing, but that she had not done so because she was sick. The hearing was adjourned to another date. On the resumed date of 9 April 2008 the applicant and a Reverend from a Church in Kogarah attended.
The Tribunal recorded the evidence of the Minister that he had known the applicant for three or four years through the Church, that the applicant had not told him anything about his background, that he believed the applicant was a genuine Christian and was very involved in Church activities. The Tribunal recorded that the applicant also provided a document with details about the Church in Padstow, and photographs relating to his baptism in October 2000.
The Tribunal described further questioning of the applicant about his claims based on religion, his responses to questioning about his delay in seeking review of the delegate's decision and about the fact that in his protection visa application he had stated he feared persecution as a Falun Gong leader in China.
The Tribunal raised its concern about the fact that in the protection visa application the applicant indicated he was a Falun Gong practitioner, whereas before the Tribunal he claimed to fear persecution because of his Christian religion. It gave the applicant the opportunity to comment and/or respond to that issue either orally or in writing, explaining that if the Tribunal was satisfied that he had in fact knowingly put in an application that he was a Falun Gong practitioner that may be a reason or part of the reason why the Tribunal might affirm the delegate's decision. The applicant stated that he would like to respond orally. In relation to his Falun Gong claim the applicant told the Tribunal that he had told the advisor who helped with his application that he had a religion. He claimed that the migration agent did not charge him, that he saw him twice, that he had met him through a friend and that when he later made enquiries he was unable to contact him.
The Tribunal then put to the applicant some concerns about his claim that he practiced Christianity in China. It recorded his explanation that a lack of education and his past experience had affected him psychologically.
The Tribunal also put to the applicant that it had to consider s.91R(3) of the Migration Act 1958 (Cth) and determine whether his conduct in Australia in relation to Christianity was solely for the purpose of strengthening his claim to be a refugee. The applicant responded, stating that his Christian belief had always been with him and that he did not go to Church in Australia for the purpose of applying for refugee status. The applicant was given an opportunity to add anything further.
In its findings and reasons the Tribunal accepted the applicant's name was the name he claimed to have and that he had entered Australia using an passport in the name of another person. It stated that it took into account his claims in the protection visa application and in writing and orally to the Tribunal, the supporting documents he provided and the evidence from the Minister of religion. However, for reasons which it gave the Tribunal did not find the applicant to be credible on key aspects of his claims. It was not satisfied that he left China because of a fear of persecution as he claimed.
The Tribunal summarised the applicant’s claims to fear persecution because of his Christian religion, that he was detained in 1992, that he and others were arrested and tortured in detention and that in 2000 police had attended his home but he managed to escape and travel to Australia.
It then detailed seven areas of concern with what it described as “inconsistencies”, “contradictions” and “implausibility” which led it to conclude that the applicant was not truthful or credible. The first of these related to the applicant’s initial claim that he was a Falun Gong practitioner and his claim that he had not received the Departmental decision notifying him of its refusal to grant a protection visa in 2000. The Tribunal had regard to the applicant’s explanations for the difference between his claims in the protection visa application and those made to the Tribunal. It also recorded that it had spoken to him at length about his application and what he had been doing before seeking review and why he had not made any enquiries about his application.
The Tribunal found that the applicant’s evidence about trying to contact the migration agent who had assisted him in preparation of his protection visa application was unconvincing. It was not satisfied that the applicant told that person that he was in fact a Christian who feared persecution. It was of the view that the applicant did in fact claim to be a Falun Gong practitioner.
The Tribunal also had regard to inconsistencies in the applicant's evidence about the number of people to be baptised at the event in 1992, differences in his oral evidence and between his oral evidence and the written statement provided to the Tribunal, his lack of certainty as to the number of people he claimed were arrested in 1992 and inconsistencies in relation to when and whether his wife's parents had been baptised. It also had regard to inconsistencies in relation to the events that he claimed had occurred at the baptism ceremony in April 2000, in particular as to whether people had been baptised before the police arrived and if so how many. The Tribunal recorded the applicant's explanation for the confusion in his evidence (that his father died when he was young, his mother had to bring up four children on her own and that he was traumatised and could not explain himself properly). However the Tribunal was of the view that the applicant was confused, not because of any trauma he had suffered, but because he could not recall the content of the statement he had provided to the Tribunal.
The Tribunal also found the applicant's evidence in relation to his own baptism to be unpersuasive, noting that he had initially claimed he had been told he had been baptised as a baby, but that he decided to be baptised in Australia in October 2000 on the basis that one could be baptised on more than one occasion. When asked why he had not experienced baptism at a later stage in China, his explanation was that the incidents happened so he came to Australia and was baptised here. The Tribunal found that if the applicant had been sincere about being baptised for a second time at a time when he understood it more, he would have done so in China.
The Tribunal also found unconvincing the applicant's claims in relation to his wife's brother and sister, whom he claimed had been detained with him in 1992. He claimed that they had hoped to be baptised in 1992 and after their release they were looking for opportunities to be baptised. In 2000 a person from Moscow came to China and it was planned that he would baptise them. The Tribunal did not accept that persons wishing to be baptised would wait eight years as claimed by the applicant. It found this explanation unconvincing.
The Tribunal found that these matters collectively led it to find that the applicant was not a credible witness. It rejected the that he was a member of a Christian Church in China and hence all his claims that flowed from that claim, including the claims about arrest in 1992, that he fled China in 2000 because the authorities attended his Church while a baptism ceremony was taking place and that if he remained in China he would have been detained.
The Tribunal then considered the applicant's oral and documentary evidence about his attendance at church in Australia and the evidence from the minister of religion that he had been attending a named Kogarah Church since about 2004. It observed that apart from his “Certificate of Believer's baptism” from the Padstow Church dated October 2000 and accompanying photographs he had not provided further information (apart from his own evidence) stating that he practised his faith at that Church from 2000 to 2004, when he started attending the Church in Kogarah.
The Tribunal accepted that the applicant had attended church in Australia but noted that regard must be had to s.91R(3) of the Act. It found that the applicant was not a Christian and did not practice Christianity in China. As such, the Tribunal was not satisfied that the applicant attended church services in Australia at any time other than for the sole purpose of strengthening his case to be a refugee. It was not satisfied that his church attendance in Australia was genuine.
The Tribunal accepted that the Reverend from the Kogarah Church believed that the applicant was a genuine Christian. However it found that given the degree of the credibility problems with the applicant's evidence it could not give any weight to the statements of this witness, concluding in light of the “fundamental lack of credibility” of the applicant's evidence that it could not be satisfied that the Reverend’s statements were evidence that the applicant was a genuine Christian.
The Tribunal was not satisfied that the applicant was a Christian or that he would practice Christianity in the reasonably foreseeable future if he returned to China. It was not satisfied there was a real chance the applicant would suffer serious harm for reasons of being Christian or being imputed to be a Christian due to his knowledge or for any other reason. The Tribunal affirmed the decision of the delegate.
The applicant sought review by application filed in this Court on 23 June 2008. The application contains six grounds in which there is a degree of overlap and repetition. The applicant did not file any amended application. Nor did he file written submissions. He addressed the grounds in oral submissions today.
The first ground is a generally expressed contention that: “The Tribunal erred because it did not apply the appropriate tests as required by laws to assess [the applicant's] revised claims of a fear of persecution due to [his] Christian belief.” This generally expressed and unparticularised ground does not establish jurisdictional error. The Tribunal did address the applicant's claim to fear persecution on the basis of his religion. Ground one is perhaps clarified by ground two and subsequent grounds which, in essence, amount to an assertion of actual or apprehended bias.
In ground two the applicant takes issue with what the Tribunal found in relation to the fact that he originally claimed that he was a Falun Gong practitioner and claimed that he told his adviser that he was a Christian. The Tribunal found that his evidence about trying to contact the agent was unconvincing and that it was not satisfied that he told the agent he was in fact a Christian. It was of the view he did in fact claim to be a Falun Gong practitioner. Having referred to this part of the Tribunal findings and reasons, the application contends that it was “obvious from both during the hearing and from the decision record that the Tribunal member was upset”.
In oral submissions the applicant suggested that the Tribunal member was unhappy when he told her that he was not a Falun Gong practitioner and that the claims in his original application were not true. The application states that although the applicant provided an “explanation that the claims were prepared by my former migration agent, the tribunal member chose to cast doubt on my credibility.” The applicant believed that “this attitude had been adopted by the member and maintained in the mind of the member throughout the hearing” and that this “was also used to form the main premises for the formulation of the subsequent decision.” On this basis it was contended that the Tribunal member had “already made up her mind with bias even before the close of the hearing” and that the “questions she continued to ask were not to explore the risk that [the applicant] might face upon return to China if [his] revised claims were true” but were asked “for the sake of justifying” the Tribunal's “already made” decision.
Ground three is that because of this the applicant believed “the Tribunal did not use an open mind to review [his] application, and hence, the review process was conducted unfairly and unjustly.”
An allegation of actual bias or bad faith is a serious matter, involving personal fault on the part of the decision maker. It is not an allegation to be lightly made. It must be clearly alleged and proved (see SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749). In this case the material before the Court is not such as to establish actual bias in the sense considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 in which Gleeson CJ and Gummow J stated at [72]:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
The only evidence before the Court of what occurred in the Tribunal hearings is the Tribunal reasons for decision. Contrary to the applicant's contentions, the Tribunal's account of what occurred in those hearings does not support the claim that the Tribunal's mind was made up in the sense required to establish bias by prejudgment or so committed to a conclusion already formed as to be incapable of alteration.
The Tribunal recorded the claims made by the applicant, then described at some length the first Tribunal hearing. From this it is apparent that the questioning at that hearing related to the applicant's claims based on religion as presented in the written statement of 17 March 2008 and as elaborated on at that hearing.
The Tribunal did identify some concerns about aspects of the applicant’s evidence about events in China (in particular inconsistencies), but there is nothing in the Tribunal's account of the first part of the hearing to indicate that it had already made its mind up (whether because of the applicant's original Falun Gong claims or for any other reason). Rather the Tribunal account of the hearing reveals that the applicant was given the opportunity to elaborate on the claims he made in his written statement to the Tribunal and to address Tribunal concerns about aspects of that evidence.
The Tribunal adjourned the hearing and resumed on another date after noting that a witness had been unable to attend the hearing. On the resumed date it took evidence from the Minister of the Church the applicant claimed he had most recently been attending. It accepted documents from the applicant about his baptism. It raised further issues in relation to his claims based on religion and then addressed his delay in applying for review. It was only at that point that the Tribunal raised with the applicant the fact that in his initial application he had stated he was a Falun Gong practitioner.
It appears from the Tribunal account of what occurred thereafter that it may have been applying s.424AA of the Act in giving the applicant the opportunity to comment or respond to its concerns that he had made different claims in his protection visa application. In particular, the Tribunal put to the applicant that if it was satisfied that he had knowingly put in an application that he was a Falun Gong practitioner in 2000 that may be a reason or part of the reason why the Tribunal might affirm the delegate's decision and find he was not a refugee.
The Tribunal also raised specific concerns about the applicant's evidence that he practised Christianity in China and put to him for comment the operation of s.91R(3) before giving him a final opportunity to add anything further.
The fact that the Tribunal these issues with the applicant does not demonstrate actual or indeed apprehended bias. Rather, the Tribunal was giving the applicant an opportunity to comment on determinative issues or matters that might form the reason or part of the reason for affirming the decision under review, consistent with the requirements of the Migration Act.
In its findings and reasons the Tribunal did not simply rely on the fact that the applicant had made initial claims about being Falun Gong practitioner and later claimed to be a Christian. Rather it outlined a number of matters (of which this was only one) which led it to reject the applicant's credibility. Most of these concerns were with inconsistencies, contradictions and implausibility in the claims that the applicant made about his practice of religion and events that he claimed had occurred in China.
Actual bias is not made out on the material before the Court. Nor are the circumstances such as to establish apprehended bias from the perspective of the appropriately informed fair-minded lay observer as considered by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. The evidence before the Court is not such as to establish that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the questions to be decided.
There is nothing to support the claim made in ground two of the application that during the hearing the questions the Tribunal asked were not to explore the risk the applicant might face if his revised claims were true, but simply to justify an already made decision. Grounds two and three are not made out.
Ground four takes issue with the Tribunal's consideration of the evidence of the Reverend from the Church at Kogarah and the operation of s.91R(3) of the Act. The application refers to the Tribunal’s consideration of the evidence before it in relation to the applicant's practice of Christianity and attendance at church in Australia and contends that the Tribunal “erred” in that “it said that it accepted the evidence of Rev Lau of [his] Church that [the applicant] had been attending the service at [his] current Church since 2004”, observed that he had provided evidence of his attendance at another Church and a photograph of his baptism at that Church after he came to Australia in 2000, “yet it placed all these activities into s.91R of the Migration Act.” The applicant claimed that the Tribunal “failed to provide any evidence to support this assessment except on the basis of his credibility which [he] believed was a legal error” as contended in grounds two and three. It was also contended that the Tribunal “failed to put this view to him at any time during the hearing,” and that it did not ask him to “make a comment”. It was contended that the Tribunal contravened s.424 (sic) of the Migration Act.
Insofar as this is a contention that the Tribunal was obliged to raise determinative issues with the applicant during the hearing, this would appear to be intended to be a reference to s.425 of the Act. However, contrary to the applicant's claim, the Tribunal reasons for decision record that the issue of whether his conduct in Australia might be disregarded under s.91R(3) of the Act was in fact clearly raised with him at the hearing and he was given an opportunity respond.
In relation to the more general concern expressed about the evidence before the Tribunal and its approach to s.91R(3) of the Act, s.91R(3) relevantly provides that in determining whether a person has a well-founded fear of being persecuted for a Convention reason the Tribunal is to disregard any conduct engaged in by the person in Australia unless the person satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claims to be a refugee within the meaning of the Refugee Convention.
The onus is effectively on the applicant to put evidence before the Tribunal and to satisfy it that the conduct was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. In this case, contrary to the contentions of the applicant, the Tribunal did not disregard the evidence that the applicant put before it. It referred specifically to his oral and documentary evidence, but noted that apart from his baptism certificate from the Padstow Church dated 2000 and photographs he had not provided any other information (apart from his own evidence) about his practice at that Church from 2000 until 2004 when he started attending the Church at Kogarah where Reverend Lau was.
The Tribunal accepted that the applicant had attended Church in Australia. It accepted Reverend Lau's evidence that he had been attending the Church at Kogarah since about 2004. However it found, for the reasons it had given, that he was not a Christian and did not practice Christianity in China and that it was not satisfied for the purpose of s.91R(3) that he attended Church services in Australia at any time other than for the sole purpose of strengthening his claims to be a refugee.
The Tribunal had raised the issue of s.91R(3) with the applicant at the hearing and gave him the opportunity to comment. It addressed the evidence he had put before it. It also had regard to the evidence of Reverend Lau. In that respect it accepted that Reverend Lau believed the applicant was a genuine Christian. However the Tribunal noted that the issue under s.91R(3) was not whether the witness believed that the applicant was a genuine Christian, but whether the applicant with all his evidence, including evidence from witnesses, had satisfied the Tribunal that he engaged in the conduct other than for the purpose of strengthening his claims to be a refugee.
The Tribunal found in light of the lack of credibility in the applicant's evidence it could not be satisfied that the statements from Reverend Lau overcame those difficulties such as to satisfy it that the applicant was in fact a genuine Christian. It was on that basis that the Tribunal did not give any weight to the statements of Reverend Lau.
There was no obligation on the Tribunal to provide evidence to support this assessment in the manner contended for in ground 4 of the application. It was open to the Tribunal to make its finding on the basis of adverse credibility findings and I note that the task of making findings of fact, including findings as to credibility, is a task for the Tribunal alone Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. No jurisdictional error is established on the bases contended for in ground four. Nor do the matters raised in ground four considered with the matters raised in the other grounds establish bias or apprehended bias.
Ground five refers to the fact that in criminal proceedings “the past criminal history of the accused person cannot be divulged to the judge or jury before the accused person is convicted … to prevent bias against the accused person” and reiterates the claim of bias on the basis that the Tribunal had access to the Departmental file and that it “stubbornly adhered to the contents and did not keep an open mind to assess new and revised materials”. It was contended that the applicant was in a “very disadvantaged position” and that there was a breach of s.422B insofar as it required that the Tribunal “must act in a way where it is fair and just.” The applicant also contended he had “no reason not to stick to [his] claims of [his] original application if they were true claims”, but that it was “because of [his] Christian belief [he] could not allow this to happen.”
As set out above, the material before the Court is not such as to establish actual or apprehended bias. The Tribunal gave the applicant every opportunity to raise and elaborate on the claims based on religion that he made to it. It cannot be said that the Tribunal stubbornly adhered to the original claims or that it drew an adverse credibility finding solely on the basis of the change in the applicant's claims. It is not established that, the Tribunal was biased from the start and unable to assess his case fairly.
In oral submissions the applicant also submitted that if the Tribunal had attached enough importance to the case then it would have given him the opportunity to elaborate on particular issues that he had discussed, such as the torture that he claimed to have experienced in prison in China and would have taken the opportunity to ask further questions of Reverend Lau in relation to his attendance at Church, his activities at Church and whether Reverend Lau believed that the applicant was a genuine Christian.
However the Tribunal's obligation at a hearing is not to ask further questions on specific issues that the applicant has not elaborated on in earlier oral or written submissions. If this is a suggestion that the applicant was not given an opportunity to elaborate on his claims, that is contradicted by the fact that at the conclusion of the Tribunal hearing on the second day the applicant was asked if he would like to add anything further. I also note that when the Tribunal raised adverse information with the applicant he was given the opportunity to respond, either in writing or orally, and he chose to respond orally.
The oral claims made by the applicant do not establish jurisdictional error either on their own or taken in conjunction with the grounds in the application. Hence, the contention in ground six that the matter should be remitted to the Tribunal for reconsideration is not made out.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful and the first respondent seeks costs in the amount of $4,000. I consider that the amount sought is appropriate in light of the nature of this and other similar matters. There is nothing in the material before the Court to warrant a departure from the principle that the unsuccessful applicant should meet the costs of the first respondent.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 24 December 2008
0
4
1