SZMLG v Minister for Immigration
[2009] FMCA 890
•11 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMLG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 890 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZMLG”. |
| Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Aboriginal Affairs & Anor v Peko Wallsend Ltd & Anor (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SBCC v Minister for Immigration & Multicultural Affairs (2006) FCAFC 129 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZMLG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 355 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person with the assistance of a Fuqing interpreter |
| Counsel for the Respondent: | Ms L Weston (solicitor) |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 16 February 2009 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 355 of 2009
| SZMLG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a citizen of the People’s Republic of China from Haikou Town, Fuqing. She is married and her husband lives in China and one son studies in Sydney, Australia. The applicant claims that she fears persecution in China because of her Catholic faith and as someone who has organised bibles and other religious material to be delivered into China.
The applicant states that she received no education and is illiterate. She claims her protection visa application was prepared by someone (possibly a migration agent) named “Karen” and a statement she sent to the Refugee Review Tribunal (“the Tribunal”) was prepared by another migration agent (Court Book (CB) 56). However, the applicant said she did not tell the first agent any details about her claims.
The applicant said that she was born into a Catholic family and became sick when she was young. After her illness, her parents became devoutly religious. The applicant first said she was not baptised in China but later said she was in 1983. Their church was an underground one and the applicant attended it because her parents did, rather than the official Catholic Church in China. She stated that she worked in a small clothes shop in China and was told by her church to distribute its own bible to customers of the shop.
At the Tribunal hearing, a Father McGee attended and gave evidence that the applicant had attended a church in Sydney regularly. Also that she was baptised there on Easter Sunday 2008.
On 1 September 2007, the applicant arrived in Australia and on
17 October 2007 she applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 8 January 2008, a delegate of the first respondent refused to grant the visa and the applicant was informed of this decision and her review rights. The applicant applied to the Tribunal for review of the delegate’s decision and the Tribunal, differently constituted, affirmed the delegate’s decision on 29 May 2008. On 7 October 2008, the Federal Magistrates Court set aside the first Tribunal decision and remitted the matter to the Tribunal to be determined according to law. On 20 January 2008, the reconstituted Tribunal, presided by Amanda MacDonald, also affirmed the delegate’s decision not to grant the applicant a Protection visa.
A Court Book (“CB”) prepared by the first respondent’s solicitors and marked Exhibit “A” is the only evidence before the Court. That Court Book contains the decision (RRT reference number 086929 dated
20 January 2009 and corrigendum signed 2 February 2009 is the decision that is the subject of the judicial review.
The Tribunal decision
In setting out the following summary of the Tribunal decision I have quoted directly or paraphrased the written submissions prepared by the first respondent’s solicitors and do not make any further attribution as this would make the summary unwieldy. The information is provided to assist in understanding the nature of the application and not to establish any evidentiary point.
The Tribunal did not accept that the applicant was a practising Catholic or Christian in China. Consequently, it did not accept that she attended an underground church, or that she was involved in the distribution of bibles or other religious materials. In reaching this conclusion, it stated the lack of knowledge of Christianity or Catholicism demonstrated by the applicant at the Tribunal hearing. The applicant indicated that she was unable to provide these details because of her bad memory but the Tribunal found this was inconsistent with the detailed claims that she had otherwise made. The Tribunal acknowledged that it was difficult in a hearing situation to recount details and that the applicant was born into a poor family and unable to travel long distances to study religion. However, it did not believe that these reasons accounted for the applicant’s poor knowledge. The Tribunal considered documents in support of the applicant’s claimed Catholicism and found that they did not override its concerns about the applicant’s limited knowledge. It also considered whether the applicant feared persecution as a result of breaching China’s one child policy, which she mentioned briefly in her application. It found that she was not singled out in any way as a result of fines she had to pay for her second and third child and there was no chance that she would suffer harm for this should she return to China.
The Tribunal was not satisfied that the applicant attended at church in Australia was conduct undertaken for a reason other than to strengthen her claims. As such the Tribunal disregarded this conduct.
Grounds of review
The original application filed in these proceedings contained four unparticularised grounds of review. At the first Court date the applicant indicated that she wished to participate in the Court-sponsored Legal Advice Scheme and this request was conveyed to the Court registry for the allocation of a panel adviser. The Court file contains notification from the adviser that the applicant was provided with written advice. The applicant was also granted leave to file an amended application after she received the panel advice but this opportunity was not taken up. Nor did the applicant provide written submissions prior to the hearing as required in the Court orders.
The grounds in the original application filed on 16 February 2009 state:
1. RRT did not use favourable cases to my application. They did not consider my evidence fairly.
2. Procedural fairness has been denied. RRT did not ask me any questions about Catholicism, then they gave the outcome that I had limited knowledge of Catholicism.
3. I am Catholic. I was not educated. I am not good at expressing. I also provided the evidence that I was involved in church activities in China. It is not fair that RRT reject it.
4. RRT did not make sure if I was Christian or Catholic. In refusal letter, it often mentioned I was a Catholic or Christian. Why can’t RRT make sure I am catholic? Then how can they refuse my application on that base? It is not fair.
When the applicant was invited to make oral submissions in support of her application, she said she did not wish to make any statement.
Solicitors for the first respondent filed detailed written submissions in accordance with the Court orders. Ms Weston, appearing for the first respondent, indicated that she relied on those submissions.
Consideration
Ground one
The Tribunal considered the applicant’s evidence in a detailed, accurate and reasonable manner. Ultimately it found that the applicant lacked credibility which is a finding of fact for the Tribunal alone.
The Tribunal’s adverse credibility finding and its consequent rejection of the applicant’s claims is a matter for the Tribunal, see Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J:
A finding on credibility which is a function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe the witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why accepted or rejected individual pieces of evidence.
I am satisfied that the Tribunal’s findings in this respect were open to it on rational grounds on the material before it and discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547.
This ground also raises the claim that the Tribunal had an obligation to consider the applicant’s case and make a favourable finding by reference to other cases. This claim is made without any particularisation and evidence and appears to be ill-conceived. The unidentified third party assisting the applicant in the preparation of the grounds of review does not appear to understand this jurisdiction and the issues that are required to be addressed. This ground does not raise any issue in respect of jurisdictional error and should be dismissed.
Ground two
This ground appears to question the manner in which a Tribunal makes its factual findings and again seeks an impermissible merits review. Merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of an earlier decision. A merits review provides a complete rehearsal of all the issues relevant to the application with the reviewing body considering relevant material and any new evidence. The reviewing body then makes a decision on the merits of the application, unfettered by the earlier decision or reasons of the earlier decision-maker. This is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]. Conversely, judicial review asks whether the decision-maker was authorised to do what he/she did under the prevailing law.
The Tribunal undertook a legitimate exploration of what the applicant knew about her religion in order to assess the genuineness of her claim, see SBCC v Minister for Immigration & Multicultural Affairs (2006) FCAFC 129 at [47] per French, Lander and Besanko JJ:
47. The short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of her claim.
The Tribunal was entitled to ask the applicant questions designed for her to demonstrate her level of knowledge of Christianity and its doctrines, and to draw conclusions from the way that she answered.
The decision record shows that the applicant was asked questions about a broad range of topics including baptism, the Lord’s Prayer, the Pope and significant events in the Christian calendar. Although she was able to respond to some of the questions, she was unable to answer others at all:
The Tribunal acknowledges that it may be difficult for an applicant in a hearing situation to articulate the principles and beliefs of their particular religion. However, the Tribunal is of the view that some of the life long involvement in the Catholic church such as that claim by the applicant would be able to give basic information about Christianity. The Tribunal acknowledges the applicant’s claims that, as a child, she was unable to travel the long distances required to study religion, that she was poor or that she was forced to stay at home to do housework, and that she learned her religion in an active underground church. However, the Tribunal is not satisfied that they satisfactorily account for the applicant’s ignorance of the basic aspects of the Christian faith. (CB 150)
In the circumstances this ground cannot be sustained and should be dismissed.
Grounds three and four
The third and fourth grounds of this application cavils with the factual findings of the Tribunal in a clear attempt to engage the Court in an impermissible merits review: Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs & Anor v Peko Wallsend Ltd & Anor (1986) 162 CLR 24 at [40]-[42]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. As indicated in ground one, the Tribunal’s rejection of the applicant’s claims and evidence was based on an assessment of her credibility. In the circumstances, these two grounds cannot be sustained and should be dismissed.
Conclusion
The applicant in these proceedings is a self-represented litigant who despite having received panel advice, placed before the Court four unparticularised grounds of review of the Tribunal’s decision. These grounds demonstrate a lack of understanding of the judicial review process and in effect seek a merits review of the decision. The process was explained to the applicant but she declined to address the Court on any aspect of the review process. I have had the benefit of detailed witness submissions prepared by solicitors for the first respondent and the opportunity to re-read the Tribunal decision in the light of those submissions. On the basis of the limited evidence placed before the Court, being the contents of the Court Book and the Tribunal decision contained therein, I am satisfied that the Tribunal decision does not contain jurisdictional error and the application should be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 11 September 2009
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