SZMMI v Minister for Immigration
[2008] FMCA 1508
•4 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1508 |
| 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, 91S, 474, pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZMMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1719 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 November 2008 |
| Date of last submission: | 4 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1719 of 2008
| SZMMI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
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 29 May 2008 and handed down on 10 June 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 20 August 2006 having departed legally from Guangzhou on a passport issued in his own name and a student visa issued on 7August 2006.
On 7 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 15 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 18 February 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 29 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 4 July 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
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by government officials for reason of his and his family’s Christian beliefs and practices in China.
The Applicant claimed that:
a)his father had been a preacher in the Catholic faith “since [he] was little”;
b)on 15 August 2000 government officials raided his family home and harassed, assaulted and arrested church followers who were gathered there;
c)his parents and uncle were beaten and sustained injuries, his parents were tied up and dragged into a police van and he was kicked in the face by a police officer, causing him to bleed;
d)he and his brother went to live with his maternal grandmother;
e)his parents were sent to a labour camp and were released and “returned home” in September 2001;
f)his parents continued to practice Catholicism and were visited often by government officials;
g)his parents fled China in 2002 leaving his brother and him behind;
h)his uncle assisted him to transfer to a technical college in Fuzhou in September 2005 during which time this uncle was also helping him “to prepare to leave China and to lodge the passport and visa applications”;
i)he lived at church followers’ homes because he felt “it was unsafe to stay at my home which was under surveillance by government officials”.
j)he was worried about his brother and travelled back to China in March 2007 to help his brother “to apply to go to Wu Shu Chinese martial arts school in the USA” before returning to Australia;
k)he would be further persecuted because of his application for a protection visa in Australia if he now returned to China.
The Delegate’s decision
On 15 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 did not accept that the Applicant was a Christian or that he was of any interest to Chinese authorities. The Tribunal did not accept any of the claims made by the Applicant of past persecution and found the Applicant’s claims “not to be credible”. The Tribunal found that the Applicant did not have a genuine and well-founded fear of persecution.
The Tribunal’s review and decision
On 18 February 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant made the further claim in support of his review application in a letter dated 3 March 2008 from his representative that his brother had been arrested in China.
The Applicant provided documentation in support of his review application, including:
a)his travel documents;
b)letters purportedly from the Fuqing City Public Security Bureau pertaining to the Applicant’s involvement with an “underground cult organisation”, the first requiring the Applicant’s attendance for questioning, dated 30 January 2008, and the second requiring his detention, dated 1 February 2008;
c)letters from his parents;
d)documents concerning the Chinese Catholic Bible reading group at Villawood with which the Applicant was involved;
e)photographs;
f)submissions from his legal representative dated 23 May 2008;
g)a document headed “People’s Court of Fuqing City, Fujian Province: Criminal Judgment” purportedly recording the Applicant’s brother’s conviction for “orgnaizing [an] evil cult and disturbing social order” and sentencing him to five years, seven months imprisonment;
h)various reports of religious persecution in China.
On 29 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 28 February 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 12 March 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence in which the Applicant expanded upon his written claims. The Applicant also brought a witness from whom the Tribunal also heard evidence.
The Tribunal noted in its decision record that it discussed with the Applicant:
a)the Applicant’s family, their residential history and their involvement in Christianity;
b)the Applicant’s residential history and practice of Christianity in China and Australia;
c)his parent’s arrest in China on 15 August 2000;
d)his father and mother’s migrations from China to Korea on 1 February 2002 and to Taiwan on 19 February 2002 respectively ;
e)his parent’s divorce and his mother’s remarriage to a Taiwanese man;
f)his father’s immigration status in Korea;
g)his contact with and questioning by the police in China following his parents’ migration;
h)his travel back to China in March 2007 and his assistance to his brother during this trip;
i)his brother’s detention and how the Applicant came to know of this;
j)the documents submitted to the Tribunal by the Applicant, including their content and how the Applicant received them; and,
k)the Applicant’s fears of future harm if he were to return to China.
The Tribunal also noted in its decision record that it discussed with the Applicant’s witness his claim of past persecution in China of the Applicant and the Applicant’s family, including the recent arrest of the Applicant’s brother.
On 19 May 2008 the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it. The letter identified the Tribunal’s concerns about implausibilities in the Applicant’s claims, inconsistent evidence given by the Applicant’s witness at the hearing and independent country information. On 23 May 2008 the Applicant’s representative responded to the Tribunal’s letter.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“7. The Tribunal rejected the applicant’s claims, on the basis of an adverse credibility finding and country information. The adverse credibility finding was based on the following:
a) The implausibility of the applicant’s evidence in relation to not asking his mother when his parents divorced and when she remarried, or not asking his mother why he could not live with her in Taiwan (CB 241).
b) The applicant’s inability to provide a plausible reason for why he could not live with his father in Korea (CB 241.10-242.3).
c) The applicant’s vague evidence about his contact with the Chinese authorities, and implausible evidence as to the police continuing to pursue a child for over 4 years about the whereabouts of his parents, in circumstances where his parents had left China and were no longer holding underground gatherings, the meeting was held when the applicant was aged 11 and the applicant was not holding or attending church gatherings himself (CB 242.4-10).
d) The applicant’s inconsistent evidence as to his father’s occupation, namely whether he was a preacher or a taxi driver who preached to passengers (CB 242.8).
e) The applicant’s lack of explanation why he had to be secretive about his brother’s travel plans, inability to provide a plausible reason for why he had to personally travel to China to help his brother apply to travel to the USA and inability to provide a plausible reason for why he returned to China despite fearing for his safety (CB 243).
8. Because of the view the Tribunal took of the applicant’s credibility, the Tribunal gave little weight to the corroborative evidence of the witness and supporting documents. In addition, the Tribunal made an adverse credibility finding with respect to the witness, namely that the witness’ answers were vague because he was making up his evidence along the way (CB 244.7).
9. The Tribunal also considered the claim that the applicant would be persecuted because he has applied for protection in Australia. It rejected that claim, referring to independent country information which contradicted it (CB 245.5).”
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 4 July 2008.
The grounds of the application are expressed to be as follows:
“1. Exceeded jurisdiction in making the decision to affirm the respondent’s decision not to grant the applicant a protection visa; and
2. Erred in law in arriving at the decision to affirm the respondent’s decision not to grant the applicant a protection visa.”
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.
Grounds 1 and 2
Ground 1 is a bare assertion that the Tribunal “exceeded jurisdiction” and ground 2 is a bare assertion that the Tribunal “erred in law”. Neither ground discloses any error capable of review by this Court.
The only submission the Applicant made in support of these grounds or in support of his application generally was to ask why the Tribunal had not believed him. He then sought to repeat his claims to this Court. The Court explained to him that it was not for this Court to reconsider his claims and reach different findings or conclusions. The Court explained that it only had power to consider the relief he sought if it is satisfied that the Tribunal has made a legal mistake in its review of the Delegate’s decision. The Court further explained that mere disagreement with the Tribunal’s findings and conclusions did not by itself establish such a legal mistake.
A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard in detail to the claims made by the Applicant in his statement, dated 7 January 2008, provided for the Department in support of his visa application.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and his witness.
The Tribunal identified in detail the oral evidence given by the Applicant and noted exchanges it had with the Applicant about concerns arising from his evidence. The Tribunal noted the Applicant’s responses. The Tribunal also explored with the Applicant the documents he provided in support of his application.
The Tribunal also noted in detail the evidence given by the Applicant’s witness and exchanges it had with the witness about his evidence.
The Tribunal identified in detail the independent country information to which it had regard.
After the hearing, the Tribunal wrote to the Applicant on 19 May 2007, again identifying its concerns about the evidence of the Applicant and his witness, inconsistencies in that evidence and country information before the Tribunal. The Tribunal noted the Applicant’s response by letter dated 23 May 2008.
A fair reading of the Tribunal’s decision makes clear that the Tribunal’s adverse credibility findings arose from the Tribunal’s assessment of the Applicant’s evidence and that of his witness, neither of whom it believed. Those findings were open to the Tribunal on the evidence and material before it and for which it gave reasons. Credibility findings, including adverse credibility findings, are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). Moreover, the Applicant would have to have been aware that his credibility was an issue before the Tribunal, it having been the basis why the Delegate did not accept his claims and refused him a protection visa (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35], [37] and [47]).
Further, the Tribunal considered the Applicant’s written claim of a fear of persecution because he had applied for protection in Australia, although it was not raised at the hearing. However, the Tribunal noted its finding that it did not accept the Applicant’s claims of past persecution. Moreover, the Tribunal stated that it preferred the advice of the Department of Foreign Affairs and Trade “that the Chinese authorities appear to take the view that such claimants are seeking to take advantage of an opportunity presented by Western legal systems so they pay little or no attention to the claims.” The Tribunal noted that the Department of Foreign Affairs and Trade information also advised that “any continuing interest in a failed applicant for refugee status would largely depend on the applicant’s subsequent behaviour on return.” The Tribunal noted that it had already found that there was not a real chance that the Applicant would practice “as an underground Catholic” or be involved in any activities that would bring him to the adverse attentions of the Chinese authorities were he to return to China.
Accordingly, the Tribunal affirmed the decision under review.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all evidence and material provided in support; identified independent 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 forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 4 November 2008
0