SZMLH v Minister for Immigration
[2008] FMCA 1491
•27 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMLH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1491 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91R(3)(b); 91S; 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 SZJZN v the Minister for Immigration & Citizenship (2008) 101 ALD 284 |
| Applicant: | SZMLH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1628 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 October 2008 |
| Date of last submission: | 30 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr D. Godwin |
| Solicitors for the Respondent: | Ms P. Nandagopal, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1628 of 2008
| SZMLH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 May 2008 and handed down on 29 May 2008.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 28 November 2007, having departed legally from Guangshen Baiyun Airport on a passport issued in his own name and a visitor visa issued on 22 October 2007.
On 10 January 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 4 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 4 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 20 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 25 June 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities for his practice in China of Christianity outside the state regulated churches. He claimed he and his family were members of a group called the “Christian Xiye Church” which organised activities and assemblies in China for “the purpose of disseminating our teaching, reading the Bible and evangelizing to our follower”.
The Applicant claimed he had been “restricted by Chinese government and police and was regarded to upset social security and disturb the peace.” He claimed he was detained “for a couple of times”; was “continually under detention and asked about our activities”; was “given warnings to give up my religion”; and that he could not “persist in” his religion in China. He claimed he would continue to be actively involved in Christianity if he returned to China but would be “detained and persecuted by Chinese government and police severely” and “sentenced to be a Political Criminal”.
The Delegate’s decision
On 4 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate accepted that the Applicant was a Christian in China, however, relied on independent country information that residents of the Applicant’s province in Fujian enjoyed “one of the most liberal policies on religious freedom in China”. The Delegate did not accept that the Applicant had suffered past persecution in Fujian by reason of his Christianity and found that there was not a real chance that he would be persecuted for that reason if he were to return to China.
The Tribunal’s review and decision
On 4 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided travel documents; photographs; a letter purportedly from a Minister, dated 12 February 2008; a document entitled “Certificate” purporting to be from the Applicant’s church in China; and identification and household registration documents from China in support of the review application. On 20 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 17 March 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 15 April 2008 to give oral evidence and present arguments.
On 15 April 2008, the Applicant attended a hearing before the Tribunal and expanded upon his previous claims. The Applicant claimed that activities of his father had received “unhealthy” interest from the authorities in 2007. The Applicant claimed that, as a result, he was questioned by authorities in October 2007 and on a number of occasions in May, June and October 2007 about the Church.
The Tribunal noted in its decision record that it discussed with the Applicant: his residential and employment history; his relationship with his wife and two sons and their knowledge of his claims; the Applicant’s religious beliefs and practices; the Applicant’s knowledge of Christianity; his parent’s and brothers’ involvement with Christianity, particularly Catholicism, in China; the Applicant’s travel documents and travel to Australia; his delay in leaving China; and the Applicant’s involvement with the church in China and Australia.
The Tribunal noted in its decision record that it discussed with the Applicant’s witness at the hearing on 15 April 2008: his relationship with the Applicant; the composition of the religious study group he claimed to attend with the Applicant; the witness’s opinion of the Applicant’s genuineness and piety; and the witness’s knowledge of the Applicant’s family and history in China.
The Tribunal noted in its decision record that it particularised for the Applicant a number of concerns it had about the Applicant’s claims and explained their relevance. The Tribunal noted the Applicant’s responses to, and comments on, these concerns at the hearing.
On 28 April 2008, the Tribunal again wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a further hearing on 16 May 2008 to give oral evidence and present arguments.
On 16 May 2008, the Applicant attended that hearing with his son and two other witnesses and again gave evidence. The Applicant also provided further documents to the Tribunal, including: a translated copy of the Applicant’s household registration in China; a certificate from the Applicant’s church stating that the Applicant was “summoned and interrogated by the police” for his religious activities; and, a certificate from “the Chief of the Xiye church”, dated 20 December 2007, purporting to confirm the Applicant’s Christianity.
The Applicant’s two witnesses also gave evidence at the hearing on 16 May 2008. The Tribunal noted in its decision record that it discussed with one of the witnesses her knowledge of the Applicant’s church and religious practices in China and his difficulties with Chinese authorities. The Tribunal noted that she claimed to have been a member of the Applicant’s church in China.
The Tribunal noted that it had before it the Department’s file and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“7. The RRT held 2 hearings- on 15 April 2008 and 16 May 2008 at which the applicant, his son and witnesses gave evidence and presented arguments.
8. The RRT sought further details about the applicant’s claims. The applicant’s evidence was in summary:
8.1 he attended church at Xiye which had been set up by his father. Up to 2003 he conducted bible readings at the Church;
8.2 from 2003-2006 he was not involved with the Church as he was busy with work on a construction project;
8.3 he resumed worshipping in 2006;
8.4 the applicant’s father died in 2006 and he went to visit his mother in May/June 2007. The congregation in Xiye started planning to build a church. The PSB were interested in what the congregation was up to. He was questioned on numerous occasions;
8.5 In October 2007 he was taken in for questioning by the PSB for a full day. He believed he was being monitored by the PSB;
8.6 the applicant claimed that he had been told that the police had come looking for him recently; and
8.7 he had been attending church in Ashfield regularly since January 2008.
9. The RRT accepted that the applicant was a Christian in China and that he had attended church in Australia. It accepted that he had attended an unregistered Protestant Church in China which had been established by his father. However, the RRT found that the applicant’s claims regarding his role and profile were improvised, exaggerated and unreliable. It found that he had maintained ties with the church in Xiye through occasional attendance at services and financial contributions, however, it did not accept that he was proselytising or had any higher profile or function there.
10. The RRT did not accept that the applicant had been persecuted by the PSB in the past or that the PSB had developed an interest in the Xiye church. It was clear that the church continued to function and the PSB had taken no decisive action to stop it. The RRT considered that the applicant’s delay in traveling to Australia after he obtained a visa to do so showed that he had no subjective fear.
11. The RRT found that the authorities in China had no adverse interest in the applicant when he left China and had not developed an interest since. It could find no plausible reason why the PSB would have been looking for the applicant as he claimed.
12. The RRT considered that the applicant would continue to practice his Christianity upon his return to China. He would be able to continue worshipping at the Xiye church without interference from the PSB as he had done in the past. The RRT did not accept that the applicant had any interest in proselytising.
13. The RRT noted that the applicant did not claim that his religious activities in Australia would give rise to any risk of persecution.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.
The Applicant confirmed that he relied on the grounds contained in an application filed on 25 June 2008.
The grounds of the application are expressed to be as follows:
“1. Jurisdictional error has been made. RRT did not use favourable cases to my application.
2. Procedural Fairness has been denied. RRT failed to address me potential sur place claim that I would be exposed to a real risk of persecution in the future as I am devoted Christian.”
At the first directions hearing this Court, gave the Applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon; any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing; and, written submissions. However no amended application was filed by or on behalf of the Applicant.
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
Ground 1
Ground 1 does not identify any error capable of review by this Court. When the Court asked the Applicant what he meant by ground 1, he stated that the Tribunal did not believe that he had been persecuted in China.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered the Applicant’s evidence about past persecution in China. However, the Tribunal found the Applicant’s claims regarding his role and profile in the church in China to be “improvised, exaggerated and unreliable”. The Tribunal found the Applicant’s evidence about his Christian conduct in China to be “confusing”. Whilst the Tribunal accepted that the Applicant may have been a Christian in China, it found that the Applicant had not suffered persecution by reason of his Christianity and was of no adverse interest to local authorities in China.
In particular, the Tribunal did not accept that the Applicant had a subjective fear in China from the Religious Affairs Bureau, the Public Security Bureau or the Chinese Police Bureau, or that he had been warned that he would be sentenced as a “political criminal” if he were to continue his religious practice.
The Tribunal had regard to independent country information that disclosed that there are many unregistered Christian churches in the Applicant’s province of Fujian which operate without official interference. In accordance with that country information, the Tribunal found that mere membership of such a church does not, therefore, establish a real chance of persecution.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Court Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
In the circumstances, the Applicant’s complaint that the Tribunal did not believe him invites merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
Ground 2
The only submission made by the Applicant to the Court in support of ground 2 was that his church in China was unregulated.
At the heart of the Applicant’s complaint of a denial of procedural fairness in ground 2, appears to be his disagreement with the conclusions of the Tribunal that there was not a real chance of persecution in the reasonably foreseeable future if he were to return to China. However, as stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. The Tribunal’s conclusion that the Applicant’s fear was not well-founded was based on findings made by it and its application of the correct law to those findings.
In relation to the Applicant’s contention in ground 2 that the Tribunal had failed to address his “potential sur plus claim”, a fair reading of the Tribunal’s decision makes clear that the Tribunal did not regard such a claim as having been made. The Tribunal stated as follows:
“The Applicant has not claimed, and material before the Tribunal does not suggest, that his involvement in any church in Australia would give rise to any risk of persecution if he were to return to China.”
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the totality of the Applicant’s written and documentary evidence. There was no transcript provided by the Applicant to the Court to suggest that the Tribunal’s summary of the Applicant’s evidence and that of his witnesses was not accurate. In the circumstances, a fair reading of the Tribunal’s decision record does not suggest that the Applicant engaged in any conduct in Australia beyond attending church services and study groups in his local area. In the circumstances, the Tribunal’s finding that such conduct does not give rise to a sur plus claim was open to it on the evidence and material before it.
Whilst the Tribunal found that the Applicant did attend church services and study groups in Australia, it found that he did so “in part to strengthen his refugee claims, but also to worship and socialise with other Chinese Christians”. In light of that finding, the Tribunal stated “the Tribunal is therefore not required to disregard this conduct in its assessment (s.91R(3))”.
Mr Godwin, counsel for the First Respondent referred the Court to SZJZN v the Minister for Immigration & Citizenship (2008) 101 ALD 284 (“SZJZN”) where Madgwick J said at [35], obiter, that “the purpose” referred to in s.91R(3)(b) for which the Applicant entered into conduct in Australia meant “the dominant purpose”. Madgwick J stated at [32] as follows:
“It cannot, in my opinion, be the position that, where an applicant ha multiple purposes for engaging in conduct in Australia, no matter how relevantly unimportant the s.91R(3) purpose may be, its existence will prevent the decision-maker from having regard to it.”
However, in the case before this Court, a fair reading of the Tribunal’s reasons, does not suggest that the Tribunal in fact had regard to the Applicant’s conduct in attending church services and study groups in Australia as part of its reasons for affirming the decision under review.
The Tribunal’s reasons for affirming the decision under review were because it did not accept that: the Applicant had suffered past persecution in China by reason of his Christianity; the Applicant did not have a subjective fear of persecution at the time of his departure; the Applicant was of no interest to the authorities in China; independent country information made clear that mere membership of an unregistered church did not establish a real chance of persecution; the Applicant had no profile in the church in China beyond that of membership; the Applicant would not seek to expand his practice of Christianity in China to proselytising; the Applicant would be able to continue his Christianity in his home in China; there was no evidence that members of the Applicant’s church in China had been mistreated by authorities; no enquiries have been made by the authorities about the Applicant by reason of his Christianity; the Applicant would not be forced to practice Christianity in a registered church or be subject to material restrictions; the Applicant had any fear from authorities in China by reason of his Christianity; and, that the Applicant had been warned that he will be sentenced as a political criminal if he were to persist with his religious practice.
None of those findings were based on reasons given by the Tribunal that in any way referred to the Applicant’s conduct in Australia of attending church services and study groups. To that end, for all practical purposes, the Tribunal disregarded the Applicant’s conduct in Australia, although, having regard to the obiter statements made by Madgwick J in SZJZN, it may not have been obliged to do so. In other words, this Court does not need to consider and determine further any application before this Court of the obiter statements of Madgwick J in SZJZN because the Applicant’s conduct in Australia did not form any part of the Tribunal’s reasons for affirming the decision under review.
In the circumstances, there was no breach by the Tribunal of s.91R(3) of the Act.
Accordingly, ground 2 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal: understood the claims being made by the Applicant; accurately summarised the Applicant’s evidence and material provided in support of his application; explored those claims at two hearings with the Applicant and his witness; had regard to all material provided in support; identified the country information to which it had regard; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 27 November 2008
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