SZMNK v Minister for Immigration
[2008] FMCA 1669
•16 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMNK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1669 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was entitled to have regard to 5 year old country information. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A(1); 474; pt.7 div.4; pt.8 div.2 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZIGH v Minister for Immigration and Citizenship [2008] FCA 1885 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 |
| Applicant: | SZMNK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1822 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 November 2008 |
| Date of last submission: | 2 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr P. Snell. Sparke Helmore Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1822 of 2008
| SZMNK |
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 28 May 2008 and handed down on 19 June 2008.
The applicant claims to be a citizen of the People’s Republic of China (“the PRC”) and Christian faith (“the Applicant”).
The Applicant arrived in Australia on 9 December 2007 having departed legally from the PRC on a passport issued in his own name and a visitor’s visa issued on 13 November 2007.
On 8 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 28 February 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 19 June 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 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 is a Christian and, with his wife, was a member of an underground Christian church in the PRC. The Applicant stated that in October 2006 during a service at a fellow practitioner’s house the local police broke in and arrested the Applicant and the other practitioners. The Applicant claimed that the police declared that the gathering was an illegal church gathering. The Applicant claimed that the police confiscated the church group’s Bible and papers as evidence to convict them. The Applicant claimed that he was detained by the police for 2 days and required to pay RMB5000. The Applicant further claimed that the police later came to his home and threatened him and his family and that he was then monitored by the police. As a result, the Applicant claimed that he was forced to leave his home.
The Tribunal’s review and decision
On 28 February 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application.
On 27 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 13 May 2008 to give oral evidence and present arguments.
The Applicant attended the hearing before the Tribunal on 13 May 2008 and gave evidence. At the Applicant’s request, the hearing was adjourned until 28 May 2008 to enable the Applicant to respond to country information and concerns about his evidence that had been put to him by the Tribunal. The Applicant attended the further Tribunal hearing on 28 May 2008 and gave further evidence.
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 claims of the Applicant before the Tribunal and the Tribunal’s decision are accurately summarised in the written submissions of the First Respondent’s solicitor as follows:
“2.1The applicant, a citizen of the People’s Republic of China (“China”), claimed to fear harm from Chinese authorities because he and his wife are Christians who attended an underground Church. The applicant claimed that in October 2006 the police broke in during a service at a fellow practitioner’s house and he was arrested with several others. The applicant claimed that they were detained for two days and released after an undertaking was given that they would not conduct further gatherings and upon payment of money. The applicant additionally claimed that he was monitored by police, so he went into hiding, resulting in harassment of his family by police who continued to search for him: Court Book (“CB”) 27-28.
…
2.3The Tribunal found the applicant’s claims about his religious beliefs were vague and general and revealed no knowledge whatsoever of Christianity (CB 81.8), which was inconsistent with his claim to be Christian in China and to have been persecuted because of his faith CB 82.2. The Tribunal found that the applicant had “no knowledge, conviction, understanding or awareness of what could reasonably be regarded as a person holding a religious faith, let alone the Christian faith, even in a home church in China”: CB 83.2. Therefore the Tribunal did not accept the applicant’s claim to have been a Christian in China and was not satisfied that he had a well founded fear of persecution for a Convention reason on that basis. The Tribunal found the applicant was not a credible witness and therefore could not be satisfied as to any of the applicant’s claims of harm in China and did not accept his claim to have been to church since his arrival in Australia: CB 83.
2.4Additionally, the Tribunal found that there was not a real chance that the applicant would be subject to serious harm in China on the basis of his wife’s religion being imputed to him (CB 84), nor as a result of his objection to human rights abuses and political and religious suppression in China, or by virtue of the breach of the so-called “one-child” policy: CB 85
2.5Accordingly, the Tribunal was not satisfied there was a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention reason if he returned to China: CB 86.”
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 his application filed on 15 July 2008. The Applicant confirmed that he had not filed an amended application, evidence or submissions in support of his application.
The grounds of the application are expressed to be as follows:
“1.Jurisdictional error has bee (sic) 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.”
These grounds have been seen regularly in this Court before even to the spelling mistake in ground 1 in relation to “bee”.
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 made no relevant submissions in support of either ground or his application generally. The Applicant simply repeated his claims and said that if he returned to the PRC he would be persecuted.
Ground 1
Ground 1 makes a bare assertion that is not supported by particulars, evidence or written or oral submissions and does not disclose any error capable of review by this Court. At the first directions hearing before this Court, the Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any evidence by way of affidavit. No further documents or submissions were filed by the Applicant.
The Tribunal decision record summarised accurately in detail the written claims of the Applicant. It also summarised the Applicant’s evidence to the Tribunal at both hearings.
There was no transcript of the Tribunal’s hearings 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 review history, the hearings and, in particular, the oral evidence given by the Applicant.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored with the Applicant his claims and evidence at both hearings. The Tribunal noted concerns that it put to the Applicant about his evidence and noted the Applicant’s responses.
At the end of the first hearing on 13 May 2008, the Tribunal asked the Applicant if he had any other claims he wished to put to the Tribunal and noted the Applicant responded “no”.
The Tribunal’s decision record also noted that the Tribunal asked the Applicant if he wished to be able to respond to information that had been put to him during the hearing and noted that the Applicant replied he wished for a month. The Tribunal’s decision record notes that the Tribunal agreed to adjourn the hearing for a period of two weeks and provided the Applicant with written advice that the hearing would resume on 28 May 2008.
The decision record does not suggest that the Applicant made any complaint that the adjournment allowed by the Tribunal of 2 weeks was inadequate. Further, the Applicant made no such complaint to this Court, either in the grounds of his application or orally.
In the circumstances, this Court finds that the exercise of the Tribunal’s discretion in granting the adjournment and for the period of 2 weeks was a proper exercise of the Tribunal’s discretion.
At the resumption of the hearing on 28 May 2008, the Tribunal invited the Applicant to make any further comments or responses and noted the Applicant’s reply that “he was arrested and was aggrieved because the police came to his home to arrest him, so he wanted protection from the Australian government.” The Tribunal noted that it again put to the Applicant each of the matters that it had raised with him on 13 May 2008 and again invited his response. The matters put to the Applicant were concerns about the Applicant’s evidence or independent country information and were not information that enlivened the obligations of s.4242A(1) of the Act. However, the Tribunal was obliged to identify to the Applicant the concerns it had in relation to the issues of the Applicant’s credibility (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”) at [35).
In particular, the Tribunal put to the Applicant that independent country information before it disclosed that Christianity was growing quickly in the PRC and “faster than maybe any other part of the world”, that there were 3,000 unregistered churches in Beijing alone, and that the Christian church has not been persecuted in the PRC.
The Tribunal also noted that it put to the Applicant independent country information indicating that the Applicant would not have been issued with a passport or allowed to leave the PRC if he had been required to report to the police every 2 weeks. This information was put to the Applicant at the earlier hearing. The Tribunal noted the Applicant’s response that the head of his village had protected him and he had asked this person if there was a computer file on him and the head of the village had replied in the negative.
Recency of country information
The country information put to the Applicant by the Tribunal was 2003 information from the Bureau of Democracy, Human Rights and Labor on the US State Department and its Country Reports on Human Rights Practices. The Court raised with the First Respondent’s solicitor whether it was appropriate for the Tribunal to rely on 2003 country information in respect of a matter it was hearing in 2008. The Court raised the issue of whether or not the principle enunciated by the High Court of Australia, that a decision-maker must have regard to the most recent and accurate information that the decision-maker has to hand (Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 (“Peko-Wallsend”) at 44-45 per Mason J), was applicable.
The solicitor for the First Respondent, Mr Snell, sought further time to file and serve further submissions on this issue. Accordingly, the Court gave both parties a further 7 days to file and serve submissions in relation to that issue. To assist the Applicant, the Court provided the Applicant with a document in his own language, Mandarin, containing a contact list of legal bodies that may be able to offer him assistance should he wish to seek it, together with the telephone number of translating and interpreting services, again with an explanation in Mandarin.
The First Respondent filed further written submissions prepared by counsel, Ms Clegg. No further submissions were filed by the Applicant.
The Court accepts the written submission by counsel for the First Respondent that a critical difference in Peko-Wallsend and the case before this Court is that in Peko-Wallsend there was material placed before the decision maker which the decision maker had failed to consider. In the case before this Court, the Applicant was unable to identify any documents or information in relation to independent country information that it had given to the Tribunal and to which the Tribunal had failed to have regard.
I accept Ms Clegg’s submission that Peko-Wallsend did not alter the proposition that an administrative decision-maker is not bound to enquire into an applicant’s case nor that the decision-maker is required to make an applicant’s case for them. However, a decision-maker must take into account the information before it (see Peko-Wallsend Gibbs CJ at 30-32 and Mason J at 307-309).
Further, it is well settled law that it is a matter for the tribunal the country information to which it has regard and the weight it places upon it. It is also not a jurisdictional error for the tribunal to base a decision on country information that is not true (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). A tribunal is not bound to enquire further into an applicant’s assertion that independent country information relied upon by the Tribunal is out of date (VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 (“VTAG”) at [36]-[38]). Nor is a tribunal bound to accept up-to-date information given to it by an applicant (VTAG at [41]).
In the case before this Court, the Tribunal’s decision record does not suggest that the Applicant made any complaint to the Tribunal about the country information to which the Tribunal had regard, despite having had that information put to him on two occasions and the opportunity to consider the information. Nor had the Applicant made any such complaint to this Court. Further, there is no evidence before this Court to suggest that the independent country information to which the Tribunal had regard was in fact out of date or that more recent information was different.
Moreover, even if the Tribunal erred in failing to identify and have regard to more recent independent country information, such an error will only be jurisdictional error if it affected the exercise of the Tribunal’s power. To that end, the Applicant would need to satisfy the Court that the Tribunal’s failure to have regard to more recent independent country information affected the exercise of its power in determining whether or not the Applicant had a well-founded fear of persecution for a Convention-related reason (Craig v South Australia (1995) 184 CLR 163 (“Craig”) at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed); SZIGH v Minister for Immigration and Citizenship [2008] FCA 1885 (“SZIGH”) per Buchanan J at [42], [43] and [44]). There is no evidence before this Court to support such a contention. As Buchanan J observed in SZIGH, the element of whether or not an error represents jurisdictional error because it affects the exercise of power “is not supplied by assumption or the identification of mere possibilities” (at [44]). His Honour went on at [44] to say:
“The High Court did not say in either Craig or Yusuf that there was jurisdictional error if the exercise of power might have been affected but is thereby affected (Craig) or in a way that affects it (Yusuf).”
At the heart of the Tribunal affirming the decision under review was its adverse findings about the Applicant’s credibility. The Tribunal found that the Applicant had no knowledge “whatsoever of Christianity, the Christian faith, Jesus’ teaching or the Bible.” The Tribunal found the Applicant’s lack of knowledge and commitment to the Christian faith to be totally inconsistent with his claim to have been a Christian in the PRC and to have been persecuted by reason of his Christianity. Having found that the Applicant was not a Christian in the PRC, the Tribunal comprehensively rejected the Applicant’s claims of detention in the PRC arising out of his Christianity and all claims of past persecution.
In addition, the Tribunal had regard to the possibility that the Applicant’s wife may be a Christian and that he may have had Christian religion imputed to him. However the Tribunal noted that the Applicant did not claim that his wife had been persecuted by reason of her Christianity or for any other reason, nor that she had had to leave their home because of her faith. The Tribunal preferred the country information before it that “millions of Christians are indeed practicing their faith in China without being persecuted.”
The Tribunal noted that the Applicant did not claim that he had experienced persecution for any other Convention related reason other than his Christianity. The Tribunal also noted that whilst the Applicant claimed he had a child in breach of the one child policy, he did not claim that he had a well-founded fear of serious harm amounting to persecution because he had been required to pay a fine. The Applicant did not claim that the fine was excessive or persecutory in nature or that his children had been subject to restrictions such as not being allowed to attend school because of this. The Tribunal found that none of the Applicant, his wife or his children had been persecuted by reason of the breach of the one child policy and further found that there was not a real chance of the Applicant being persecuted on that basis if he were to return to the PRC.
The Tribunal found that there was not a real chance that “the applicant would be subjected to serious harm amounting to persecution because his wife is a Christian or for any other Convention related reason, or that there is a real chance that he would be subject to serious harm on this basis.”
The Tribunal found that the Applicant had not been detained in the PRC for any Convention related reason, nor that he was forced to pay a fine or required to report to police in Fuqing, nor that police had attended his home and asked his wife about his whereabouts.
The findings, including adverse credibility findings, of the Tribunal were open to it on the evidence and material before it and for the reasons it gave. 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).
Accordingly, ground 1 is rejected.
Ground 2
Ground 2 makes a bare assertion that procedural fairness was denied and that the Tribunal failed to address a “potential sur place claim”.
In relation to the assertion in ground 2 that “Procedural Fairness has been denied”, no particulars or submissions were made in support of that assertion. A fair reading of the Tribunal’s decision makes clear that the Tribunal invited the Applicant to come to a hearing in accordance with the legislative regime.
There was no breach by the Tribunal of s.424A(1) of the Act. All the concerns the Tribunal had were put to the Applicant at the first hearing on 13 May 2008. The Applicant was then given a further two weeks to consider those matters of concern. At the resumption of the hearing on 28 May 2008, the Tribunal concerns were again put to the Applicant and the Applicant’s responses noted. In the circumstances, the Applicant was on notice of the issue of his credibility and was given the Tribunal’s concerns in writing and given a further hearing to address those concerns (SZBEL at [35]).
As stated above in these Reasons, the Tribunal’s findings were based on the evidence and material before it and for the reasons it gave. In the circumstances, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, the assertion in ground 2 that “Procedural Fairness has been denied” is rejected.
In relation to the assertion in ground 2 that the Tribunal failed to address the “potential sur place claim”, the Tribunal noted the Applicant’s claims to have attended church in Australia. However, the Tribunal rejected the Applicant’s evidence of ever having been to church in Australia.
The Tribunal’s rejection of the Applicant’s evidence of having been to church in Australia was based on the Applicant’s lack of knowledge of both the Bible and Christianity which it found to be “non-existent”. In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Having rejected the Applicant’s claims of having engaged in conduct in Australia which caused him to fear persecution if he were to return to the PRC, s.91R(3) of the Act was not engaged.
Further ground sought to be raised by Applicant post hearing
Following the completion of the hearing of this matter before this Court the Applicant attempted to file an amended application on 28 November 2008 identifying the following ground:
“The Tribunal took into account conduct of the applicant in Australia in relation to attendance, or non-attendance, at Church services, without determining whether the applicant engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee, contrary to the requirements of sub-section 91R(3) of the Migration Act 1958.”
Leave was refused to the Applicant to file the amended application on the basis that such a ground has no prospect of success in light of the reasons referred to above.
As stated above in these Reasons, the Tribunal made a clear finding that it did not accept that the Applicant had attended church services in Australia. In the circumstances it was not required to consider further the reason why the Applicant had engaged in such conduct (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105). The Tribunal was only required to consider the purpose of the Applicant’s engagement in conduct in Australia if it accepted that such conduct took place. That was not the finding made by the Tribunal in the case before this Court.
Accordingly, ground 2 is rejected.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; put to the Applicant matters of concern it had with his evidence; adjourned the hearing to give the Applicant a further opportunity to consider concerns the Tribunal had expressed at the hearing; put those concerns again to the Applicant at a further hearing and noted his responses. The Tribunal 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 sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 16 December 2008
2